Kelly v. Kansas City Southern Railway Co.

• Decision Date: 06 December 1909
• Parties: KELLY v. KANSAS CITY SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

123 S.W. 664

92 Ark. 465

KELLY v. KANSAS CITY SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

December 6, 1909

Appeal from Sevier Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed and cause remanded.

J. S Lake, for appellant.

It was appellee's duty, independent of contract, to maintain its culverts so as not to impede the free passage of surface water. 87 Ark. 480; 39 Ark. 463; 82 Ark. 447; 80 Ark. 235; 45 Ark. 252; 44 Ark. 360; Id. 258; 66 Ark. 271. The nuisance was not of a permanent character, within the sense that the statute of limitations begins to run from the date of construction. 52 Ark. 240; 57 Ark. 387; 72 Ark. 127; 76 Ark. 542; 80 Ark. 235; 82 Ark. 387; 86 Ark. 406.

Read & McDonough, for appellee.

The statute, after once commencing to run, cannot be stopped by death of the owner or minority of appellants. 31 Ark. 364; 52 Ark. 132. The injury was permnanent in the beginning, and the statute began to run at that time. 66 Ark. 271; 87 Ark. 475; 86 Ark. 406; 71 Ark. 78; Id. 451; 44 Ark. 258; 62 Ark. 360; 45 Ark. 252; 82 Ark. 453. A person making an artificial ditch is not bound to keep it open. 21 Ill.App 560. One is not bound to ditch the land of another. 29 N.Y 459.

OPINION

FRAUENTHAL, J.

This is an action instituted by the appellants to recover damages which they claim to have sustained by reason of the obstruction of the natural drainage and flow of water over their land by the appellee in making an embankment in and filling up a ditch that had been dug along the appellant's roadbed. The plaintiffs below are the widow and minor children of Eli Harris, who was the owner of forty acres of land in Sevier County, which he occupied as his homestead to the date of his death. In 1896 he granted to the predecessor of the defendant railroad company a right of way for its railroad over said land, and in 1897 that company built its roadbed across the eastern portion of said land, running from north to south. The natural and usual flow of the water over this land, and the lands just north of it, was and had been from the northwest and towards the railroad embankment built by the defendant; so that, ordinarily, this roadbed would have obstructed the natural flow of the water which had been used to pass over this land. In the construction of its roadbed the railroad company dug borrow pits upon its right of way and upon the west side of the railroad embankment, and the connections were dug out between the borrow pits so as to make a ditch along the western side of the railroad and entirely across this land from north to south. This ditch was from two to five feet deep and from fifteen to twenty feet wide; and it drained all the land of the plaintiffs, of which complaint is now made, from the time of the construction of the railroad to the date which will be hereafter referred to, when the ditch was permanently filled up and became a part of the embankment. During all that time there was no obstruction to the flow of the water which passed over the portion of plaintiffs' land, now complained of. It is urged by the defendant that no ditch was dug along the side of the railroad by it, but that borrow pits were only dug by it; and that the defendant did not assume to provide an escape for the water by a ditch. But the evidence shows that these borrow pits were connected by drains, and that in effect they then formed practically a continuous ditch, which did successfully carry off all the water which had been theretofore used to flow over the land. They did therefore, up to the time of the filling of the ditch, provide for the passage of the water, so that it did not injure the land involved in this case. In 1901 Eli Harris departed this life, leaving surviving him a widow and four minor children, who are the plaintiffs, and also two adult children. On January 2, 1909, the plaintiffs instituted this suit, and in their complaint alleged that in the spring of 1905 the defendant filled up said ditch, and thus obstructed the natural flow of the water and cast the same back on the land of plaintiffs, and "that the said ditch has continuously been and remained obstructed and stopped up since the spring of 1905." It appears from the evidence that this ditch was filled up by the accumulation of sediment and by the defendant throwing dirt into the ditch until there was formed a solid embankment where the ditch formerly ran across this land which was raised to a height of from one to two feet above the adjoining land upon the west, and became in effect a part and an extension in width of the railroad embankment. And the ditch was thus permanently filled up along the entire length of plaintiffs' land. There is a conflict in the testimony as to the time when the ditch was thus filled up and the embankment made therein. Some of the witnesses on the part of the plaintiffs testified that this was done two years before the institution of this suit, and others testified that it was done from three to four years prior to the date of the trial, which would have been from 2 1/2 to 3 1/2 years prior to the institution of this suit. The waters that had been theretofore drained by this ditch were cast back upon the plaintiffs' land by this embankment made therein; and the plaintiffs alleged that on this account they were unable to produce any crop on twenty acres of the land during 1906, 1907 and 1908, and they also alleged that two acres of the land were permanently injured by reason of a gully that was washed therein, and they sought to recover the rental value of the twenty acres for said three years and the value of said two acres. The defendant denied all liability for the alleged injury, and specifically pleaded the statute of limitation against any recovery. At the conclusion of the evidence the court directed the jury to return a verdict in favor of the defendant, which was done; and the plaintiffs prosecute this appeal.

There was sufficient evidence, we think, adduced in this case to go to the jury, which showed that the natural flow off the water which used to pass over the lands of the plaintiffs was obstructed by the defendant; and the question involved is, when did that obstruction occur which gave a cause of action; and if the obstruction occurred when the ditch was filled up, whether it was permanent or temporary. It is contended by the defendant that the obstruction occurred in 1897 when the railroad bed was originally constructed, and that it was permanent, and that the injury was then complete, and that the cause of action, if any arose, then accrued for all damages that were or could have been incurred. But, under the evidence in this case, when the defendant originally built its road embankment, it did not obstruct the natural flow of the water that passed over the plaintiffs' land, and therefore did not commit any injury thereby. By virtue of the grant given to it of a right of way over the land it had the legal right to construct its embankment thereon. This acquisition of a right of way did not, however, give to the railroad company the right to obstruct the natural drainage and to overflow the land of the adjoining and granting owner by the unskillful and unnecessary manner of the construction of the roadbed. St. Louis, I. M. & S. Ry. Co. v. Morris, 35 Ark. 622; St. Louis, I. M. & S. Ry. Co. v Anderson, 62 Ark. 360, 35 S.W. 791. It still owed the duty to such owner not to construct its railroad embankment in an unskillful and negligent manner; and where it impeded or obstructed the natural drainage or flow of the water, it was still its duty to carry off such water by placing culverts or trestles across the embankment or by making ditches along its sides. If a...