Lackey v. St. Louis & San Francisco R. R. Co.

• Decision Date: 08 July 1912
• Citation: 59 So. 97,102 Miss. 339
• Parties: CAROLINE LACKEY v. SAINT LOUIS & SAN FRANCISCO R. R. Co
• Court: Mississippi Supreme Court

59 So. 97

102 Miss. 339

CAROLINE LACKEY v. SAINT LOUIS & SAN FRANCISCO R. R. Co

Supreme Court of Mississippi

July 8, 1912

APPEAL from the circuit court of Lee county, HON. J. H. MITCHELL Judge.

Suit by Caroline Lackey et al. against the St. Louis & San Francisco Railroad Company. From a judgment for defendant, plaintiff appeals.

The following is the second count of the declaration, referred to in the opinion.

"(2) And for further cause of action plaintiffs aver that said defendant, being incorporated as a railroad company as aforesaid, did on or about the day of , 1886, enter upon said land while so owned and in the possession of the said W. L Lackey, and did then and there build its railroad roadbed embankments, trestles, excavations, etc., on said land and other land of the said W. L. Lackey, and of others adjacent thereto, and did so negligently and unskillfully construct build, and maintain its said railroad roadbed, embankments and trestles, that the waters of Town creek and the waters off of the surrounding land were turned, diverted, and obstructed from their accustomed channel and flow, and were thrown and cast upon said land, and stood upon said land, and it caused the said W. L. Lackey great loss by way of drowning of the crops thereon, and injuring the value of said land, and that on the day of , 189 , the said W. L. Lackey brought suit in the circuit court of Lee county, Mississippi, against said defendant, on account of said negligent and unskillful construction of said railroad and for the injury caused thereby to him, and on the trial of said cause obtained a judgment in the sum of , which said clause is No. in said court, and all of the proceedings and judgments in said cause are hereby referred to and made a part of this declaration, and which said judgment was paid off and discharged by the said railroad company, and, as a compromise and settlement between the said W. L. Lackey and said railroad company, said railroad company entered into a written agreement to build and construct certain ditches and to fill up trestle No. 216 to take said water off of said land, and agreed to keep open the same, and that in pursuance to said written agreement said defendant railroad company did for many years keep open said ditches and protected this land to a great extent from overflow, and that during said time said lands made large crops, and the said W. L. Lackey during his lifetime received large returns therefrom in the way of rents, and that since his death these plaintiffs received large sums of money for rent of the same, to wit, about the sum of seven dollars per acre, as long as said contract of compromise was carried out and performed by said railroad company; but, notwithstanding said agreement of said railroad company to keep open said ditches as agreed upon by said compromise agreement, said railroad about seven years ago, in total disregard of this said contract, allowed said ditches to fill up, so that the same would not carry off the waters of Town creek and overflow waters from surrounding lands, so negligently and wrongfully thrown and cast upon the said land of plaintiffs, and by reason of said failure of said railroad company to carry out its said contract the waters of Town creek and the waters off of the surrounding and adjacent lands, during the years 1905, 1906, 1907, 1908, 1909, and 1910, have been thrown and cast upon the land of the plaintiffs, and have caused them great loss on account thereof, towit, in about the sum of one hundred and seventy-five dollars as rent of said land for each of said years 1905, 1906, 1907, 1908, 1909, and 1910. Wherefore plaintiff sues, and demands judgment for the sum of ten hundred and fifty dollars, together with the costs of this cause."

The following is the agreement referred to in the opinion:

"Whereas I, the undersigned, W. L. Lackey, am the owner of the south half of the northeast quarter of section 6, township 9, range 5, in Lee county, Mississippi, across which the track of the Kansas City, Memphis & Birmingham Railroad has for several years been constructed, maintained, and operated, and is now maintained and operated; and whereas, I have claimed that, in consequence of the improper construction of said railroad across said land, the latter has been damaged in various ways, and that for such damage said railway was and is liable to me; and whereas, I have claimed and do...