Louisville & N.R. Co. v. Bennett

• Decision Date: 01 December 1922
• Citation: 196 Ky. 679,246 S.W. 121
• Parties: LOUISVILLE & N. R. CO. ET AL. v. BENNETT.
• Court: Kentucky Court of Appeals

246 S.W. 121

196 Ky. 679

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

Court of Appeals of Kentucky.

December 1, 1922

Appeal from Circuit Court, Muhlenburg County.

Action by W. W. Bennett against the Louisville & Nashville Railroad Company and another. From a judgment for plaintiff defendants appeal. Reversed, and new trial ordered.

Benjamin D. Warfield, of Louisville, and Taylor, Eaves & Sparks, of Greenville, for appellants.

Hubert Meredith, of Greenville, for appellee.

TURNER C.

Appellee is the owner of a farm of 65 and a fraction acres adjacent to the right of way of the Louisville & Nashville Railroad Company in Muhlenburg county.

The petition seeks a recovery for temporary damages to plaintiff's crops on about 15 or 20 acres of his farm brought about by the water backing up and standing upon his land in great quantities and for unusual lengths of time which, as alleged, was caused: (1) By the negligent construction of a fill or embankment by the railroad company and its negligent failure to provide therein sufficient openings for the outlet of the water; (2) because of defendant's negligence in permitting insufficient openings in that embankment to become filled up; (3) because of defendant's negligence in permitting a drain or ditch on its right of way which conducts the water to the culverts in the embankment to fill up with weeds, brush and debris, thereby obstructing its flow; (4) because defendant negligently constructed and maintained a fence across this ditch at the line of its right of way; and (5) because defendant negligently diverted water from another valley by the construction of a deep cut and caused same to flow over and upon plaintiff's lands.

After alleging these things, it is further alleged that--

"The injuries and damages to his said lands, to its use and the crops grown and attempted to be grown thereon, could have been and can be easily averted by providing suitable, proper and sufficient culverts and openings at proper locations under said railway through said embankment, and by keeping the same cleaned out and free from obstructions, and by removing the obstructions across said ditch or channel and keeping it free therefrom, and by turning the water that accumulates in the cut into the channel where it originally run, and that all of this can be done at a very moderate cost, and that therefore the damages herein complained of are what is defined and denominated by the laws of this state as temporary damages."

The defendants--being the railroad company and the Agent of the President, it appearing that for a part of the five-year period each of them was operating the railroad--filed their joint answer in three paragraphs; in the first paragraph the material allegations of the petition were all denied, including that portion above quoted referring to the alleged temporary damages. In the second paragraph it is alleged that all the injuries of plaintiff, if any, were caused by the defendant Louisville & Nashville Railroad Company which were sustained, if any, prior to December 31, 1917, and all the other injuries if any, were sustained by plaintiff during the period of federal control. In a third paragraph it is alleged that all the embankments, cuts, and fills and other alleged obstructions mentioned in the petition were constructed and made as a part of the original roadbed of the Louisville & Nashville Railroad, and that all of them were made more than five years next before the commencement of the action and have been maintained as originally constructed by the two defendants since that time as an integral part of the original railroad; and that whatever damages, if any, plaintiff has sustained, were caused by the original construction of said road, and reliance is had upon the lapse of time and the statute of limitations. And as a part of that third paragraph it is affirmatively alleged:

"They state that the alleged damages complained of were, and are, permanent, and that the structures, cuts, embankments, and fills referred to were, and are, permanent structures, constituting a part of said railroad."

By an order of court the affirmative allegations in the answer were controverted of record and the parties went to trial on the issues thus made.

The jury returned a verdict for $700 against...