Louisville, N. O. & T. R. Co. v. Jackson
| Decision Date | 06 March 1916 |
| Docket Number | (No. 220.) |
| Citation | 184 S.W. 450 |
| Parties | LOUISVILLE, N. O. & T. R. CO. et al. v. JACKSON. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Phillips County; W. R. Satterfield, Special Judge.
Action by J. M. Jackson against the Louisville, New Orleans & Texas Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Fink & Dinning, of Helena, for appellants. P. R. Andrews and J. G. Burke, both of Helena, and Moore, Smith, Moore & Trieber, of Little Rock, for appellee.
The plaintiff, J. M. Jackson, instituted this action in the circuit court of Phillips county against the two defendant railway corporations to recover damages alleged to have been sustained to his real property in the city of Helena on account of the raising of an embankment which changed the flow of the water and caused it to flow to and accumulate on plaintiff's said property. One of the defendant companies is an Arkansas corporation, which holds the franchise, and the other is a foreign corporation operating the railroad along the line. No question is raised in the suit about misjoinder of the defendants or as to which one of the defendants is liable for the alleged injury, if there is any liability at all.
The real property alleged to have been injured consists of two lots on which there are three storehouses fronting east on Natchez street, at the southwest corner of Natchez and Missouri streets. Natchez street runs north and south and is 60 feet wide, the railroad operated by the defendants running along the east side of that street. The center of the track is 10 feet west of the east line of the street. Originally the track was about on a level with the grade of the street, and, according to the testimony adduced by the plaintiff, there was a ditch running along the west side of the track at the end of the ties which carried a considerable quantity of water down the track to the next street on the south, Arkansas street, where it was taken care of without injury to adjacent property. In the year 1913, the defendants were compelled, on account of the raising of the track of another intersecting railroad, to raise this track about 2 or 2½ feet, and in doing so the embankment was sloped off from the west side of the track to about the center or crown of the street. The ditch just spoken of was, according to the testimony of the plaintiff, completely obliterated by the raising of the dump, and no other means were provided for taking care of the additional water which was thrown over into the gutter on the west side of the street.
The theory of the plaintiff is that the additional water thrown over into the gutter overtaxed its capacity and could not be taken care of, and that when it rained the surplus water rose about the curb and ran under the plaintiff's storehouses. It is uncontradicted that the flow of the water was from east to west, that the water came from the levee east of Natchez street and flowed over the railroad track, and that when the ditch was filled up there was nothing to prevent it from flowing onto the gutter, and on the west side of Natchez street. The plaintiff alleged in his complaint that he was the owner of the property, and the answer of the defendants contains a denial of that allegation. It is also denied in the answer that there was any ditch along the edge of the railroad track, and denied that the raising of the embankment caused any additional flow of water. Plaintiff alleged that permanent injury to the property was inflicted by the raising of the embankment and the digging of the ditch, which depreciated the value of the property, and the jury awarded damages for such permanent injury in the sum of $2,500. Defendants have appealed.
It is earnestly insisted that the testimony fails to make out a case of liability against the defendants; but, after careful consideration of the evidence, we conclude that, if the testimony be accepted in its light most favorable to the plaintiff's cause of action, there is enough to submit to the jury on the issue as to whether or not the injury was caused by the act of the defendants in raising the embankment and filling the ditch. There is a sharp conflict in the testimony as to whether or not there was any ditch there at all, but that conflict must be treated as settled in plaintiff's favor by the verdict of the jury. There is also a sharp conflict in the testimony as to whether or not the surface water rose above the curb and flowed onto plaintiff's property, there being testimony adduced by the defendants which tends to show that there was not sufficient water from the heaviest rains to rise above the curb; but that issue, too, must be treated as settled by the verdict.
The argument is made, also, that it was surface waters that flowed over towards plaintiff's adjacent property, and also that the ditch was not a natural drainway, and that for those reasons the defendants are not liable. It is asserted that the defendant railroad companies had the same right as any other property owner to defend against surface water, and that upon that theory there could be no liability. The defendants invoke the doctrine announced by this and many other courts that surface water is a common enemy which any landowner may defend against with such measures as he may deem expedient, without laying himself liable to any other owner upon which the water is caused to flow. Levy v. Nash, 87 Ark. 41, 112 S. W. 173, 20 L. R. A. (N. S.) 155; McCoy v. Board of Directors of Plum Bayou Levee Dist., 95 Ark. 345, 129 S. W. 1097, 29 L. R. A. (N. S.) 396.
That doctrine, though well established, has no application to the act of the railroad companies in raising their embankment to the injury of adjacent property owners, for the simple reason that such an act is not for the purpose of defending against surface waters. The occupancy of the railroad companies of the public highway was entirely permissive, and they could only do so by paying to the adjacent landowners any damage caused by such occupancy. They therefore became liable for any damage caused by a change in the condition of the highway brought about by such occupancy, regardless of the question whether or not the water thus diverted was surface water or was flowing through a natural drainway. If the change in the condition of the highway from the occupancy by the railroads caused the injury, then the companies are liable, whether there was any negligence in the construction of the embankment or not, for the Constitution of the state gives a guaranty that private property shall not be taken or damaged for public use without due compensation. The same principle applies where there has been a former appropriation of part of the public highway and afterwards there is a change made which causes additional damage. Railway v. Greer, 77 Ark. 387, 96 S. W. 129. So, under the law, the defendants are liable for any injury done to plaintiff's property by raising the embankment in the public streets. The question whether or not the accumulation of water under the storehouses was caused by the raising of the embankment was one of fact for the determination of the jury.
The following instruction, requested by defendants, was refused:
"(5) The court instructs the jury that the defendant railroad company has no control over any part of the street adjoining the premises mentioned in the complaint, except that portion actually occupied by its roadbed, and that any damages resulting from any defect in the drainage of surface water on or along said street caused by the failure of the officers of the city of Helena to use reasonable care in the maintenance and repair of the said street are not chargeable to this defendant, and this defendant is not liable for any part thereof."
We do not think that the court erred in refusing to give the instruction, for the reason that there is no evidence in the record to the effect that the injury was caused by a failure on the part of the city authorities to maintain and repair the street.
It is true, as recited...
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