Kansas City, M. & B.R. Co. v. Lackey

• Decision Date: 25 February 1895
• Citation: 16 So. 909,72 Miss. 881
• Parties: KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY v. W. L. LACKEY
• Court: Mississippi Supreme Court

16 So. 909

72 Miss. 881

KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY v. W. L. LACKEY

Supreme Court of Mississippi

February 25, 1895

FROM the circuit court of Lee county. HON. NEWNAN CAYCE, Judge.

Appellee recovered judgment against the railroad company in the court below for $ 275. Hence this appeal. The opinion sufficiently states the facts.

Affirmed.

Wallace Pratt and Buchanan & Minor, for appellant.

We submit that the right of way obtained by condemnation includes the right to do everything within its limits necessary for the proper construction and maintenance of the railroad. The compensation made is understood to cover all the damages naturally arising and reasonably expected to flow from the proper construction and maintenance of the road. Hannaher v. Railroad Co., 37 N.W. 721; 2 Wood's Ry. L., §§ 258, 275, and notes; Morrisey v Railroad Co., 58 Am. & Eng. R. R. Cas., 637.

The fact of the trestle being in appellant's field, and that the water passes through upon his land in a different manner from what it did before the construction of the road, is no evidence of improper construction for which recovery can be had. Taking into consideration the topography of the land and the other facts in evidence, the court must conclude that the damages, if any, were inevitable, and such as would naturally and necessarily result from the proper construction of the road. In times of high water, the overflow from the creek would naturally go in the direction of the railroad, and unless there was an outlet, the result would be, first, to cover the land between the railroad and the creek with water and, next, to break the railroad embankment or overflow it. If there was no trestle, the landowners on the north side of the railroad would be damaged, and Would have a right of action against the company. The fact that the plaintiff owned the land on both sides of the road and was willing for the water to be confined on the north side so as to protect his land on the south, is not to be considered.

In determining whether the railroad is properly constructed, it is necessary to consider the location and condition of the land on both sides of the road. The engineer must also take into consideration the safety of travel over the road. The contention of appellee is not that the openings were not left at the right place, but that no openings at all should be left. All the land was subject to overflow before the railroad was constructed. The only way to construct the road so as not to change the natural conditions, would have been to trestle the entire bottom at this point. Of course, this is impracticable.

In determining whether or not the road was properly constructed the court will consider the interests of all parties owning land on or near the railroad at the point in question, and the damages that would result should this trestle be closed. In Railroad Co. v. Miller, 68 Miss. 760, the action of the railroad company in collecting water in ditches and carrying it for long distances and discharging it upon the land of another, was condemned. No such case was presented here. Taking into consideration the nature of the land, which usually overflowed in times of high water, the character of the openings left, together with the inevitable result of the overflow and the breaking of the railroad embankment without such openings, there can be no question of the proper construction of the road. We submit that the court must say that there was no proof upon which to found a verdict, and that a new trial should have been granted.

Q. Robins and J. L. Finley on the same side.

J. A. Blair and Brame & Alexander, for appelle, filed separate briefs, as to the question decided by the court making the following points:

1. The evidence shows that before the construction of the railroad plaintiff's land, though subject to overflow, was easily cultivated, and made good crops. The water would spread evenly over the land possibly a foot deep, and recede without injuring the crops or preventing cultivation. On the construction of the road, which runs for a long distance through the valley without proper openings, a narrow trestle was left so as to empty the overflow water accumulated on the north side of the road with great force on plaintiff's land on the south. The water thus accumulated, to a depth of several feet, was discharged on plaintiff's land with great force, thereby causing the injury complained of. The railroad is built along the level valley of Town Creek with a view to economy, and in order to prevent the trouble and expense of grading, which would be necessary in building through the hills. In thus utilizing the valley, it was incumbent on defendant to have due regard to the effect its roadbed would...