Honaker v. C. & O. Ry. Co.

• Citation: 209 Ky. 576
• Parties: Honaker v. Chesapeake & Ohio Railway Company, et al.
• Decision Date: 12 June 1925
• Court: United States State Supreme Court (Kentucky)

209 Ky. 576

Honaker v. Chesapeake & Ohio Railway Company, et al.

Court of Appeals of Kentucky.

Decided June 12, 1925.

1. Waters and Water Courses — Rule of Damages for Flooding of Land Caused by Railroad Stated. — Damages for obstructions by railroad, causing flooding of land, may be recovered as follows:

A single recovery where structure is permanent and properly built; recurring recoveries where structure is permanent and negligently built, except where cost of alteration to avoid recurring injury would be so unreasonable that it could not be required; recurring recoveries for temporary structure as injuries occur.

2. Waters and Water Courses — Purchaser of Land, with Knowledge of Condition of Railroad Fill, Held Not Precluded from Recovering for Recurring Injuries from Flood. — Purchaser of land, suing railroad for damages from flooding due to negligent construction of fill 12 years previously, held not precluded from recovery on ground that, having purchased with knowledge of condition, he was estopped, or on ground that structure, being permanent, no recovery could be had for recurring injuries; there being no evidence as to cost of correcting defect.

Appeal from Pike Circuit Court.

ROSCOE VANOVER and O.A. STUMP for appellant.

KIRK, KIRK & WELLS and BROWNING & REED for Chesapeake & Ohio Railway Company.

STRATTON & STEPHENSON and A.L. RATLIFF for appellee City of Pikeville.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming as to city of Pikeville and reversing as to C. & O. Ry. Co.

At the close of the appellant's case in the court below, the court peremptorily instructed the jury to find for the appellees who were the defendants there, and the appellant appeals.

The petition is very inartfully drawn, but in substance it avers that the appellee, Chesapeake & Ohio Railway Company, had constructed a railroad fill across the mouth of a hollow known as France's Hollow in the city of Pikeville, up which hollow a street runs known as Kentucky avenue; that it and its co-defendant, the city of Pikeville, negligently constructed drain pipes under this railroad fill, and that by reason of such negligent construction the drain pipes were wholly insufficient to carry off the natural drainage of France's Hollow, thereby causing water to back up on appellant's lot which greatly depreciated the value of the use of said lot. Appellees traversed this petition and pleaded certain affirmative defenses, but as their side of the case was never reached it is not material to notice these affirmative defenses at this time.

The evidence with all the inferences which must be accorded it on a motion for a peremptory shows, fairly satisfactorily, that during ordinary hard rains on account of the small size of the drain pipes under the fill in question and on account of the insufficient grating over these drain pipes, water which drains down France's Hollow to this fill backs up over appellant's lot greatly depreciating the value of its use. The evidence further discloses that this fill has been located at this point for a great number of years — for at least more than twelve. It also satisfactorily appears that appellant at the time he bought his lot in France's Hollow knew of the conditions of which he now complains. For this last reason, the court thought appellant was estopped to prosecute this action and on this theory it peremptorily instructed the jury as stated. In so doing, the court erred.

In the case of L. & N. v. Bennett, 196 Ky. 679, 246 S.W. 121, this court restated the rules applicable to recovery sought for land flooded by obstructions created by railroads on the right of way, thus:

"1. A single recovery must be had for all...