Long v. Louisville & N.R. Co.

• Decision Date: 28 January 1908
• Citation: 107 S.W. 203,128 Ky. 26
• Parties: LONG ET AL. v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

107 S.W. 203

128 Ky. 26

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

Court of Appeals of Kentucky.

January 28, 1908

Appeal from Circuit Court, Logan County.

"To be officially reported."

Action by Queen Long and others against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Robert Hardison, Jr., and Hardison & Cumpton, for appellants.

Browder & Browder and Benjamin D. Warfield, for appellee.

HOBSON J.

Queen Long and her children live in Logan county, upon a small tract of land situated on the east side of the Louisville &amp Nashville Railroad. She bought the property in the year 1900 and has since lived upon it with her children. It contains about three-fourths of an acre. They make their living mainly by taking in washing. Shortly after they moved to the place they dug a well or deep spring on the land near the right of way of the railroad. This spring has since furnished a never-failing supply of water for household and domestic purposes. About June, 1906, one of the trains on the railroad killed a yearling heifer near her place, and the section crew under the supervision of the section foreman buried the carcass on the right of way on the opposite side of the track from the spring, and a little north of it. About a week or 10 days after the heifer was buried the water of the spring became very foul smelling and unfit for use. This condition continued for some months. Queen Long and her children brought this action against the railroad company for the pollution of the spring. The land where the animal was buried is higher than the land where the spring is, and the natural drain of the surface water was originally toward the spring, but the railroad had made a fill some six or eight feet high between the point where the cow was buried and the spring. The fill was made when the railroad was built many years ago. The spring is 39 feet from the center of the track of the railroad, and the heifer was buried on the opposite side of the track and on the right of way about 70 feet in a straight line from the spring. On this proof the circuit court dismissed the petition and they appeal.

The plaintiffs produced on the trial the deed which had been made them for the property. They did not show title from the commonwealth, and this was unnecessary. They were in possession. If the defendant had wrongfully polluted their spring, they may recover such damages as they have sustained without showing a title to the land. The defendant set up no claim to the spring, and the person in possession may recover for a trespass or tort against a wrongdoer without showing title. L. & N. R. R. Co. v. Moore, 101 S.W. 934, 31 Ky. Law Rep. 141, 10 L. R. A. (N. S.) 579. The most serious question in the case is whether the proof shows any liability on the part of the defendant. A person may lawfully bury a dead body on his own land. The railroad company had the right to bury the heifer on its right of way. It was charged in the petition that the defendant negligently buried the animal so close to the spring that the water became polluted. There is no proof that the defendant had any reason to anticipate that the subterranean stream which fed the spring passed near the point where the heifer was buried. It is not shown that the heifer was not properly buried, and it is manifest from the proof that the decomposed matter from the body of the heifer did not reach the spring on the surface of the ground. Two questions therefore arise for decision: (1) Is the defendant responsible in any event for the pollution of the spring from the body of the heifer, although it had no reason to suppose that this result would follow? (2) Is there enough in the evidence to show a want of proper care on the part of the defendant in burying the heifer as it did?

1. In 1 Thompson on Negligence, § 718, the rule is thus stated "Noxious gases and liquids arising from the carrying on of lawful and necessary occupations are not nuisances in all situations and under all circumstances, but may become such by reason of the trade being carried on in improper localities, or by reason of their being negligently suffered to escape. In the last case the gist of the action consists, not in the doing of the work, but in the manner in which it is done." The later cases seem to support this statement of the law. In Collins v. Chartier's Valley Gas Co., 131 Pa. 143, 18 A. 1012, 6 L. R. A. 280, 17 Am. St. Rep. 791, the defendant, in boring a well, turned salt water into the vein which supplied plaintiffs' well and polluted it. It was held by the Supreme Court of Pennsylvania that whether the defendant was liable or not depended upon whether it knew, or in the exercise of reasonable judgment might have known, that the boring of the well in the way it was done, without shutting off the salt water, would ruin the wells in the vicinity. The court said: "Negligence in this sense is the absence of such care and regard for the rights of others as a prudent and just man would and should have in the same situation. If the plaintiff showed that the injury was plainly to be anticipated, and easily preventable with reasonable care and expense, he brought himself within the exception of all the cases from Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721, to Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453, 57 Am. Rep. 445, inclusive." The same rule was announced by the Supreme Court of Ohio in Columbus Iron Co. v. Tucker, 48 Ohio St. 41, 26 N.E. 630, 12 L. R. A. 577, 29 Am. St. Rep. 528. In Scott v. Longwell, 139 Mich. 12, 102 N.W. 230, 5 Am. & Eng. Ann. Cas. 670, the Supreme Court of Michigan held that the owner of a mill race is not liable for water percolating from it if he use such care as the circumstances demand of one of ordinary prudence. The same rule applies to fire spreading from the owner's premises to another's. 1 Thompson on Negligence, § 730. The case of the L. & N. R. R. v. Simpson (Ky.) 33 S.W. 395,...