Louisville & N.R. Co. v. Mossman

• Decision Date: 18 April 1891
• Citation: Louisville & N.R. Co. v. Mossman, 16 S.W. 64, 90 Tenn. 157 (Tenn. 1891)
• Parties: LOUISVILLE & N. R. CO. v. MOSSMAN.
• Court: Tennessee Supreme Court

16 S.W. 64

90 Tenn. 157

LOUISVILLE & N. R. CO. v. MOSSMAN.

Supreme Court of Tennessee.

April 18, 1891

Error to circuit court, Henry county; W. H. SWIGGART, Judge.

Sweeney Ward and McCorry & Bond, for plaintiff in error.

Lamb & Farabaugh, for defendant in error.

LURTON J.

Mossman owns a body of land adjoining the right of way of plaintiff in error. His lands lie upon a slightly higher level than the company's right of way, or the lands upon the opposite side of the railroad. There is evidence showing that, but for the embankment constructed and maintained by the railway company, waters falling upon Mossman's land as rain or snow, or flowing upon his lands from those at a still higher level, would naturally run off across the railway, and thence upon lower lands beyond, and finally to a small branch. By the construction of this railway embankment, and its maintenance without culverts or other means for the passage of water, surface water has been backed back upon his land where it accumulates in low spots and stands, making his land swampy, and in part unfit for agricultural use. This embankment was constructed some 30 years before this suit was brought, and during all this time the right of flowage claimed by Mossman has been impeded, and surface water backed up on his land. The rule that lands lying at a lower level are burdened with the servitude of receiving all waters which naturally flow down to them from lands adjoining, and upon a higher level, has in this state been adopted, and applied not only to living streams, springs, etc., but also to surface water, and waters falling as rain or snow upon such higher lands. Railroad v. Hays, 11 Lea, 382. So it has been held that it is the duty of a railway company to provide culverts or other means...