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

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, C. J.
• Citation: Kansas City, M. & B.R. Co. v. Smith, 17 So. 78, 72 Miss. 677 (Miss. 1895)
• Decision Date: 11 March 1895
• Parties: KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD Co. v. JOSEPHUS SMITH

17 So. 78

72 Miss. 677

KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD Co. v. JOSEPHUS SMITH

Supreme Court of Mississippi

March 11, 1895

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

Judgment for plaintiff. Defendant appeals. The opinion states the facts.

Judgment reversed.

Wallace Pratt, Buchanan & Minor and Sykes & Bristow, for appellant.

1. A consideration of the facts conclusively shows that the damage to plaintiff's land was not caused by the railroad, and that the injury would have resulted if the railroad had never been constructed. The land is situated three-quarters of a mile from the road, and on the opposite side of the creek, in a pocket or bend of the stream. In view of the plainest principle of hydraulics, with the plaintiff's land on one side of the creek, and the railroad nearly a mile away on the other side, with a bottom between ascending towards the railroad, it cannot be held that the railroad embankment caused deeper water and current over this land. To so hold would be to sustain the injured wolf in recovering damages of the negligent lamb for muddying the stream below where the wolf was drinking.

2. The railroad, all through the valley in question, was properly constructed. The defendant had the right to build it as it was, and did not thereby interfere with the rights of other riparian owners. In doing so, there was no obstruction of a water course. The water dealt with was surface water merely. On this point, see 24 Am. & Eng. Enc. L., pp. 907-921; 10 Allen (Mass.), 106; Lawrence v. Railway Co., 16 Q B., 643; 71 E. C. L., 643; 11 Exchequer, 369; Jean v Pennsylvania Co., 36 N. E. Rep., 159; Rathke v Gardner, 134 Mass. 14, S. C. 14 Am. & Eng. R. R. Cas., 282; Abbott v. Railroad Co., 83 Mo. 271, S. C. 20 Am. & Eng. R. R. Cas., 103; Morris v. Railroad Co., 58 Ib., 78; 71 Mo. 231; 73 Cal. 125; 32 P. 32; Dillon on Mun. Cor., §§ 721, 1038; Alcorn v. Sadler, 66 Miss. 221. Sinai v. Railroad Co., 71 Miss. 547, is clearly distinguishable from this case, and has no application.

3. The injury complained of resulted from an extraordinary flood, and in no view of the case is the defendant liable for failing to provide against such an overflow. 37 N.W. 725; 34 Am. & Eng. R. R. Cas., 177; 37 Ib., 253; 38 Ib., 136.

J. A. Blair and Brame & Alexander, for appellee,

Filed separate briefs, making the following points:

1. Whether the injury to plaintiff's land resulted from the act of the defendant, was a question of fact, to be determined by the jury. Railroad Co. v. Thilman, 143 Ill. 127; Gould on Waters, § 311.

2. A railroad should be constructed with sufficient provision, not only for all ordinary freshets, but for such unusual and extraordinary floods as may be reasonably anticipated. 107 Mass. 492; 67 Tex. 498; 139 Ill. 9; 75 Hun (N. Y.), 479; 111 N.C. 80.

3. Water which in flood time leaves the channel of a river and overflows the adjacent land, the current extending to the full width of the water, is not surface water, such as to relieve a railroad company of liability for its obstruction. 74 Iowa 659; 75 Ib., 263; 76 Ib., 360; Crawford v. Rambo, 44 Ohio 282; Spellman v. Portage, 41 Wis. 144; 2 Woods Railway Law, § 269; 12 Am. & Eng. R. R. Cas., 196. See, also, Railroad Co. v. Archibald, 67 Miss. 38, Sinai v. Railroad Co., 71 Ib., 547.

4. If the improper construction or maintenance of the railroad co-operates with other causes to produce the injury, the defendant is liable. Railroad Co. v. Thilman, 143 Ill. 127; 30 N.Y. 564; 86 Am. Dec., 415.

5. That the overflow in question should have been foreseen and provided against, and that it does not come within the definition of the act of God, see 27 Am. Dec., 518; 46 Ib., 93; 55 Ib., 587; 64 Ib., 394; 71 Ib., 582; 86 Ib., 296 and 415; 95 Ib., 115.

We submit that the testimony shows the railroad was improperly constructed; that there was not sufficient trestling for the back or overflow waters to pass through to the north, and that this caused the injury to plaintiff's lands. It would be a dangerous precedent to hold that a railroad, as in this case, can build its line along a stream, through a fertile valley, and, without making proper provision for the outlet of overflow water, back the same up on the adjacent lands of others. Railroads are built along valleys in the interest of economy of construction. Securing that advantage, they should have due regard to the rights of others in the construction and maintenance of their roads.

Argued orally by J. W. Buchanan and E. O. Sykes, for appellant, and L. Brame, for appellee.

OPINION

COOPER, C. J.

This is an action brought by the appellee to recover against the appellant damages alleged to have resulted to his lands and crops from an overflow caused by obstructing the waters of Town creek by the roadbed of appellant's railway.

It appears from the evidence that the valley through which Town creek flows is from two to three miles wide, and that the plaintiff's farm is situated adjacent to and in a bend of the creek, and the land for injury to which and the crops thereon this suit is brought is south of the creek, while the roadbed of the defendant company is on the north side, and about three-fourths of a mile distant. The road runs down the valley, and on a line parallel with the general course of the stream, and is upon an embankment from three to four feet high. There are, within the distance of two or three miles opposite the appellee's land, three streams, which flow from the north across the railroad and into Town creek. Where they cross the road, bridges and trestles were put in of sufficient dimensions to permit the free flow of the water coming down these streams, but there was no outlet between these bridges. Town creek is a stream nearly twenty miles long, and empties into the Tombigbee river some three miles east of the plaintiff's farm. Its banks are about twenty feet high, and its channel 125 feet wide. It drains in its course a large section of country, and, in times of heavy rains, its valley is inundated to a greater or less degree annually, and in some years of excessive rains the whole valley is submerged to a depth of from two to four feet on the more elevated portions. The floods of the year 1874, and those of April and July, 1892, were the heaviest ever known by those familiar with its history. The damages for which the plaintiff sues resulted from the flood of July, 1892, and consisted in the loss of his crops, and injury to a portion of his cultivated lands, the soil of which was washed away.

The plaintiff's contention is that, but for the railroad embankment, the overflowing waters from Town creek would have passed farther to the north, and then have returned to the channel of the creek below his farm, or would have flowed down the valley, north of the creek, to the Tombigbee river; that by reason of the roadbed, and a want of proper and sufficient openings therein, the flood water was thrown back and a cross current created, by reason of which the quantity of water south of the creek was materially increased, and that the erosion by which his land was injured resulted from the increased current. The evidence for the plaintiff tends to support his contention. For the defendant, evidence was introduced that before the building of the Mobile & Ohio Railroad, Town creek was worked as a public highway, and depended upon by the community as its means of shipping out crops and getting in supplies; that, after the Mobile & Ohio Railroad was constructed, the creek was abandoned as a highway, until in the year 1883 it was cleaned out by the United States, but, not being greatly used, was again abandoned, and bushes and trees permitted to grow in its channel, and drift to accumulate; that early in the year 1892 a large quantity of timber, growing between the creek and the roadbed, had been felled by the Nettleton Hardwood Company, the lops and tops of which were left on the ground. And so the defendant contended that, if there had in fact been any increase in the quantity of the flood waters upon the valley, it was caused by the obstructions in the channel of the stream, and, if the current was changed, this could as reasonably be attributed to the act of the Nettleton Company in cutting timber and leaving the tops thereof in the valley as to the roadway of the defendant.

For the plaintiff, it is argued that the defendant's roadway obstructed the waters of a stream which the plaintiff was entitled to have flow according to its usual course; that, though the water, by reason of its volume, had over flowed the banks of Town creek, it was yet a part of that stream, and ought to have been permitted by the defendant to pursue its flow according to nature, unimpeded by any artificial obstruction. For the defendant it is contended that the water, having left the channel of the stream and spread over the adjacent valley, was surface water, and, as such, the defendant might lawfully repel it from its roadway, and for any injury resulting therefrom no right of action exists.

In England it seems to be settled that riparian owners are entitled to have streams to flow in their usual course, whether in times of low or flood water, and that flood water, overflowing the banks, and following the course of the stream along the valley, but without the channel, is a part of the stream, against which one owner may not protect himself to the injury of another. Rex v. Trafford, 1 B. & Ad. 874; Attorney-general v. Lonsdale, L. R., 7 Eq. 387; Mason v. Railroad Co., L. R., 6 QB 581; Lawrence v. Railway Co., 71 Eng. Com. Law 643.

In Attorney-general v. Lonsdale, L. R., 7 Eq 387, while the jurisdiction of the court of equity to grant the injunction prayed against an obstruction...