Illinois Cent. R. Co. v. George

• Decision Date: 15 May 1961
• Docket Number: No. 41839,41839
• Citation: 130 So.2d 260,241 Miss. 233
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. French GEORGE.
• Court: Mississippi Supreme Court

Page 260

130 So.2d 260

241 Miss. 233

ILLINOIS CENTRAL RAILROAD CO. v. French GEORGE.

No. 41839.

Supreme Court of Mississippi.

May 15, 1961.

Laub, Adams, Forman & Truly, E. C. Ward, Natchez, for appellant.

Gwin & Kuehnle, Natchez, for appellee.

McGEHEE, Chief Justice.

The appellee French George owns a tract of land of approximately 85 acres in Adams County, Mississippi, which he used as a cattle farm and for growing hay. He purchased the land on April 22, 1949, from George R. Hightower and wife. From and after his purchase he was having an 'erosion problem' and in July of that year he constructed a flume to correct this situation, that is to say, a ditch or gorge through which a stream of water was to flow to prevent his land from eroding into Hoggatt's Creek.

Because the railroad between Fayette, Mississippi, and Natchez, Mississippi, does not run exactly north and south or exactly east and west in the locality of the appellee's tract of land, it was agreed upon the trial of the case that the direction that is northwest would be referred to by the witnesses as west and also as north. The testimony is very confusing for that reason, since one witness would indicate the right direction and another the wrong one as to what he meant to say, but, as we understand it, Hoggatt's Creek runs in a northwesterly and a southeasterly direction on the opposite side of the appellee's tract of land from the railroad.

The important fact is that about the year 1951 Mr. G. M. Cherry owned a tract of land on what is sometimes referred to as the north side of the railroad right of way and tracks and northerly from the land owned by the appellee. The Cherry land drains toward the railroad tracks and lies between U. S. Highway 61 and the right of way of the appellant Railroad Company. In the corner of the said tract of land nearest the appellee's tract the water from the Cherry land drained into a low place or pond, and during that year Cherry 'erased' his pond. This pond extended over onto the railroad right of way. After the pond was filled up by Cherry, it is contended by the appellee that the Railroad Company dug ditches along its right of way beginning near the pond down and along its right of way and which carried the surface water under a railroad trestle and from thence on down the railroad right of way to where it ran upon the land of the appellee and on into Hoggatt's Creek.

The proof on behalf of the appellee tends to further show that the ditches which extended from near the pond in a southwesterly direction toward the land of the appellee were made wider by the Railroad Company and were caused to carry along the right of way about three times as much water as had theretofore come down the railroad right of way from near the former location of the pond, toward and upon the appellee's land.

According to the testimony of the appellee this condition rendered the value of his tract of land to be about $1,200 less than its value was before these ditches were dug along the right of way.

The proof on behalf of the appellee also showed that it became necessary for him to construct a second flume on his land to take care of the excess water which came to his land from the right of way of the Railroad Company.

The decree of the chancery court awarded the appellee damages of $1,200 for the difference in the value of his land before the ditches were dug and its after value and also the cost of one of the flumes in the sum of $527.25, or a total decree for damages of $1,727.25. The decree also perpetually enjoined the appellant Railroad Company 'from...