Louisville & N.R. Co. v. Whitsell

• Decision Date: 24 April 1907
• Citation: 125 Ky. 433,101 S.W. 334
• Parties: LOUISVILLE & N. R. CO. v. WHITSELL.
• Court: Kentucky Court of Appeals

101 S.W. 334

125 Ky. 433

LOUISVILLE & N. R. CO. v. WHITSELL.

Court of Appeals of Kentucky.

April 24, 1907

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

Action by J. M. Whitsell against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Waddill & Dempsey and Benjamin D. Warfield, for appellant.

Gibson Hall & Kincheloe, for appellee.

CARROLL C.

The petition of appellee, who was the plaintiff below, alleged in substance, that he was the owner of a tract of land adjoining the right of way of appellant.

That the east fork of Deer creek, a natural water course with deep and well-defined channel, ran under the track of the railroad, and thence on the east side of the road, bordering on his land, and furnishing a good drain therefor. That appellant constructed a deep ditch or canal along the west side of its road opposite the creek, and by means of this channel or ditch changed the natural course of the creek, so that the water that originally ran in the creek was diverted to the ditch, resulting in the bed of the creek filling up thereby injuring about 22 acres of his land that was formerly drained by the creek. He further averred that the ditch or canal was maintained in a negligent, improper, and unskillful manner, causing damage to his land, and sought to recover the sum of $1,000 on account of the injury inflicted upon his property by changing the natural course of the creek, and the negligent and improper manner of constructing and maintaining the ditch. Upon motion of appellant, defendant below, the court required appellee to elect whether he could prosecute his cause of action for the unlawful and wrongful construction of the ditch, or for the negligent manner in which it was maintained. Thereupon the plaintiff elected to proceed for the negligent manner of the maintenance of the ditch. Appellant, in its answer, after traversing the affirmative matter in the petition, pleaded that the construction of the ditch was necessary and a part of the permanent construction of its railroad, and as such was made more than five years before the institution of the action, and relied upon the five years' statute of limitation as a bar to any recovery against it. The evidence conduces to show that Deer creek, previous to the construction of this ditch, was some 30 feet wide, and at places 8 or 10 feet deep, before the ditch was constructed, and that the construction of this ditch diverted the water from the bed of the creek, causing it to fill up; that before the creek was filled up, it furnished a good drain for that part of appellee's land lying next to it. There was also evidence to the effect that a large culvert or drain under appellant's track at the north end of the ditch was permitted to become obstructed by logs, trees, and débris, and that these obstructed the flow of water through this culvert, causing it to overflow a part of his land.

The court instructed the jury that, if they believe from the evidence that appellee was the owner of the land, and that appellant within five years next before the institution of the action negligently or unskillfully maintained a ditch on the west side of its roadbed, and that by reason of such negligent maintenance the bed of the creek where it passed through the appellee's land had been filled up, and the waters ordinarily passing through the creek had been diverted to the ditch, thereby injuring the drainage to his land, and causing water to stand upon and overflow the same, they should find for the appellee. By instruction No. 3 the jury were told that, if they find for the plaintiff, "they will award him such sum in damages as will reasonably compensate him for any loss he might have sustained by reason of the injury to his land, to be estimated as follows: If the jury believe from the evidence that the injury to his land since June 30, 1899, is a permanent injury, they will estimate the damages by the depreciation, if any, in the reasonable market value of the land since that date directly caused by the injury. If, however, they believe from the evidence that the injury to the land since the said date is not a permanent injury, they will estimate the damages by the depreciation, if any, in the reasonable rental value of the land for the time since said date."...