Madisonville, H. & E.R. Co. v. Graham

• Decision Date: 16 March 1912
• Citation: 144 S.W. 737,147 Ky. 604
• Parties: MADISONVILLE, H. & E. R. CO. et al. v. GRAHAM.
• Court: Kentucky Court of Appeals

144 S.W. 737

147 Ky. 604

MADISONVILLE, H. & E. R. CO. et al. v. GRAHAM.

Court of Appeals of Kentucky.

March 16, 1912

Appeal from Circuit Court, Ohio County.

Action by John M. Graham against the Madisonville, Hartford &amp Eastern Railroad Company and others. Judgment for plaintiff and defendants appeal. Affirmed.

Benjamin D. Warfield, Chas. H. Moorman, and Glenn & Simmerman, for appellants.

Heavrin & Woodward, for appellee.

NUNN J.

Appellee owned a farm in Rough river bottom in Ohio county, Ky. near the place where Adam's fork flows into it, and immediately below this point appellants constructed a railroad upon an embankment from eight to ten feet high. The river and bottom, at the point where the railroad crosses them, is about two miles wide. It is in testimony that the bottom is a little higher at and near the river than out from it and that it declines from the banks to the hills. In the bottom upon the side on which appellee's land is located there were three or four natural water courses, or drains running along parallel with the river, through which the water passed before the railroad was built; but all these natural waterways, except one, were obstructed by appellants when they built the railroad. Appellee alleged in his petition that appellants' railroad was so negligently constructed that the embankments checked and caused a large volume of water to flow upon and inundate his land; that they negligently failed to construct sufficient culverts, trestles, and drain pipes to allow the natural flow of the water to pass through the embankment; and that by reason of this negligence he lost his crops of hay, corn, and sugar cane in the years 1909 and 1910, whereby he was damaged in the sum of about $2,700. Upon a trial of the case, the jury awarded him $1,000 as damages. The petition was not founded upon the idea of a recovery for the loss of the rental value of the land, if rented, nor the use thereof, if occupied by the owner, nor was it founded upon the idea that the structure was permanent; but what appellee did seek to recover was special damages for the loss of his crops for the two years named, by reason of the negligent construction of the embankment which caused the water to overflow his crops; and the case was submitted to the jury under the court's instructions. The cases of M., H. & E. R. R. Co. v. Thomas, 140 Ky. 143, 130 S.W. 975, M., H. & E. R. R. Co. v. Renfro, 127 S.W. 508, and M., H. & E. R. R. Co. v. Cates, 138 Ky. 257, 127 S.W. 988, 137 Am. St. Rep. 379, were similar to the case at bar, and the court considered questions raised on this appeal and approved instructions similar, in substance, to those given in this case. While the instructions are subject to some verbal criticism, we do not see that they are substantially prejudicial under the evidence. The substance of the case was presented to the jury, and we do not think they could have been misled by the form of the instructions.

An examination of the cases decided by this court shows we have laid down the following principles: (1) For a permanent structure, properly built, a single recovery must be had for all damages; (2) for a structure unlawfully or negligently built, though intended to be permanent, recurring recoveries for such improper or negligent construction may be had as the injuries occur; (3) for a temporary structure, recurring recoveries may be had as the injuries occur; (4) whether the original construction was unlawful or negligent is a question for the jury under the evidence when presented by the pleadings and the proof is conflicting.

In L. & N. R. R. Co. v. Orr, 91 Ky. 109, 15 S.W. 8, 12 Ky Law Rep. 756, Hay v. City of Lexington, 114 Ky. 669, 71 S.W. 867, 24 Ky. Law Rep. 1495, Richmond v. Gentry, 136 Ky. 319, 124 S.W. 337, 136 Am. St. Rep. 255, and many similar cases, it was held that, the structure being permanent and properly constructed, a recovery once for all must be had. On the other hand, in City of Louisville v. Coleburn, 108 Ky. 420, 56 S.W. 681, 22 Ky. Law Rep. 64, Klosterman v. C. & O. Ry. Co., 56 S.W. 820, 22 Ky. Law Rep. 192, Finley v....