L. & N.R. Co. v. Bennett

• Citation: 207 Ky. 776
• Parties: Louisville & Nashville Railroad Company, et al. v. Bennett.
• Decision Date: 10 March 1925
• Court: United States State Supreme Court (Kentucky)

207 Ky. 776

Louisville & Nashville Railroad Company, et al. v. Bennett.

Court of Appeals of Kentucky.

Decided March 10, 1925.

1. Trial — Instruction, Permitting Award of Temporary Damages from Overflow, Erroneous, in Absence of Evidence that Embankment Temporary. — In action against railroad company for injury caused

by overflow of land resulting from inadequate culverts in embankment across valley, there being no evidence that embankment was not permanent, instruction permitting award of temporary damages held erroneous.

2. Waters and Water Courses — Measure of Damage for Overflow Stated. — Permanent damages to land caused by overflow, as result of inadequacy of culvert in railroad embankment, held to be difference between market value of overflowed land, without embankment, and such land in its condition at time of trial with embankment in place.

3. Waters and Water Courses — Proper Instruction as to Railroad's Liability for Overflow of Land Specified. — In action against railroad company which constructed embankment with insufficient culverts to take off ordinary rainfall causing overflow of lands proper instruction submitting issue specified.

Appeal from Muhlenberg Circuit Court.

WOODWARD, WARFIELD & DAWSON and EAVES & SANDIDGE for appellants.

HUBERT MEREDITH for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON.

Reversing.

The opinion delivered on the first appeal of this case may be found in 196 Kentucky, page 679. It contains a statement of the facts, and principles there announced are the law of the case. A second trial resulted in a verdict of $225.00 per year for nine years for the destruction of crops. It reads: "We, the jury, find for the plaintiff temporary damages in the sum of $225.00 per year for nine years, which is $1,537.50, against the L. & N.R. R. Co., and $187.50 against the Director General of R.R."

Judgment was entered on this verdict in accordance with its terms.

Appellant railroad company assigns several grounds for a reversal of the judgment. Its chief objection, however, to the judgment is that it is based upon erroneous instructions given by the court to the jury.

The evidence shows that appellee, Bennett, owns a farm, of which fifteen or sixteen acres are located in the bottom, lying along a small water course above the railroad fill or embankment through which there are two culverts about 4x4 feet in dimensions, intended to carry the water of the stream from appellee's land through the embankment to its natural course below. The embankment did not extend entirely across the valley when first constructed, there being a space of about 100 feet to 150 feet at the creek occupied by a trestle, thus leaving an open space for the passage of the water. So long as this trestle continued the water did not back up over the lands of appellee, Bennett, so he claims; but when the trestle was later filled in with dirt and the culverts installed for the carrying off of the water, overflows became frequent upon appellee's land, according to his evidence and that of his witnesses. The embankment is about five or six feet high, made of earth and rock, and has on it crossties and steel...