Knott v. Louisville & N.R. Co.

• Decision Date: 27 November 1921
• Citation: Knott v. Louisville & N.R. Co., 234 S.W. 1003, 144 Tenn. 676 (Tenn. 1921)
• Parties: KNOTT v. LOUISVILLE & N. R. CO. ET AL.
• Court: Tennessee Supreme Court

234 S.W. 1003

144 Tenn. 676

KNOTT v. LOUISVILLE & N. R. CO. ET AL.

Supreme Court of Tennessee.

November 27, 1921

Certiorari to Court of Civil Appeals.

Action by Joe L. Knott against Louisville & Nashville Railroad Company and another. A judgment for defendants was affirmed by the Court of Civil Appeals, and plaintiff brought certiorari. The judgment was affirmed without opinion, and plaintiff files a petition to rehear. Petition overruled.

HALL J.

The plaintiff below, Joe L. Knott, brought this suit against the Louisville & Nashville Railroad Company and Walker D. Hines Director General of Railroads, to recover damages sustained by a portion of his farm growing out of the construction of the railroad company's track through it.

At the conclusion of the plaintiff's proof there was a motion for a directed verdict in behalf of defendants, which motion the trial court sustained, and the plaintiff's suit was dismissed. Plaintiff's motion for a new trial having been overruled, he appealed to the Court of Civil Appeals, and that court affirmed the judgment of the trial court. The case was then brought to this court by plaintiff's petition for the writ of certiorari and for review.

On October 29, 1921, this court affirmed the judgment of the Court of Civil Appeals without filing any opinion. The plaintiff has filed a petition to rehear. The petition, which is signed by plaintiff's counsel, among others, contains this statement "Petitioner, through his counsel, applied to the court on the first day of the term for permission to prepare and file a reply brief and argument.

The honorable court granted petitioner's request. Said brief and argument was accordingly prepared and was filed on the 10th day of October, and is attached to the transcript.

On October 19th thereafter counsel for defendant in error filed a reply. In their reply counsel insisted that petitioner had no right to file said brief and argument and moved the court to disregard said brief and argument and to strike it from the files and to affirm the judgment of the honorable Court of Civil Appeals, without consideration thereof.

On October 29th this honorable court evidently overlooked the fact that permission had been sought and granted to file said brief and argument, granted the motion of counsel for defendant in error, and affirmed the judgment of the court below without consideration of said brief and argument."

In the foregoing statement counsel are in error. This court had the briefs of plaintiff's counsel before it and carefully read and considered them but was unable to agree with their contention, and is still unable to do so.

The plaintiff lives in the Eighth civil district of Knox county and is the owner of a valuable farm in said district. And defendant railroad company operates its railroad through Knox county and through plaintiff's farm.

Plaintiff's declaration averred that about one half of his farm lies on the north side of defendant's track, and that the other half is situated on the south side of its track. It further avers that that part of said farm lying north of defendant's track, and also a large body of land to the north, northeast, and northwest of plaintiff's land constitutes a large watershed and the water falling thereupon flows south and towards plaintiff's farm; that before the construction of said railroad said water was distributed evenly over his farm without washing or injuring the same but that said railroad company has made a long fill on its right of way, and under its track constructed on said fill has constructed a culvert so as to draw and gather all the water falling on said watershed to and through said culvert and precipitate it upon the south portion of plaintiff's said farm in a solid and violent mass, which has cut a large, deep, and impassable ditch through the center of his said farm, passing near plaintiff's residence and depositing on the lower and better portion of his said farm vast quantities of rock, both large and small, by and on account of which a large pond has formed thereon, and plaintiff's roadway from his residence to the Middlebrook Pike, which lies south of his residence and runs parallel with said railroad, has been obstructed. Wherefore, and on account of which, the plaintiff sues to recover of defendants the sum of $10,000.

To the plaintiff's declaration defendants filed the following pleas:

First. A plea of not guilty.

Second. That the right of way upon which said railroad was built was purchased from the plaintiff and deed by him to defendants' predecessor in title for the specific purpose of building a railroad thereon; and that the defendants and their predecessor in title had the legal right under said deed to build, maintain, and operate a railroad upon said right of way in a reasonable and lawful manner, which they have done and are doing; and that they had the lawful right to make reasonable drainage thereof, and that if plaintiff's land had been overflowed, it was the result of such reasonable and proper construction, maintenance, and drainage, and the damages sustained by plaintiff are only such incidental damages as were covered by said deed of conveyance from plaintiff to defendants' predecessor in title; and therefore plaintiff has no right of action against defendants on account of such overflow.

Third. The plea of the statute of limitations of three years. The plaintiff filed proper replication to these pleas, and the case went to trial before the court and a jury with the result hereinbefore stated.

The undisputed facts show that on December 22, 1902, the plaintiff conveyed to the Knoxville, Lafollette & Jellico Railroad Company, who is the predecessor in title of the defendant railroad company, for the consideration of $400 cash, a strip of land through his farm 100 feet in width and lying 50 feet on either side of the main track of defendant's railroad, as it is now located. Said deed contained the usual covenants of seizin, possession, and warranties, and was duly signed and acknowledged by both plaintiff and his wife, and was duly recorded in the register's office of Knox county on the day following its execution.

The plaintiff testified that, in the...