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

• Decision Date: 16 May 1911
• Citation: 143 Ky. 643,137 S.W. 242
• Parties: MADISONVILLE, H. & E. R. CO. v. KITTINGER et al.
• Court: Kentucky Court of Appeals

137 S.W. 242

143 Ky. 643

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

Court of Appeals of Kentucky.

May 16, 1911

Appeal from Circuit Court, Muhlenberg County.

Action by M. C. Kittinger and others against the Madisonville Hartford & Eastern Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Benjamin D. Warfield and Browder & Browder, for appellant.

Newton Belcher and Belcher & Sparks, for appellees.

NUNN J.

Appellees brought this action to recover of appellant $575 as damages for the injury and destruction of their corn, sorghum, and wheat crops planted in 1909. It appears that appellant constructed a railroad across the lands of appellees in 1896 which went through a bottom and across a creek in a diagonal course. The testimony shows that the lands of appellees were higher on each side of and next to the creek than back from it a distance. To be more explicit, there was a depression on each side of and a distance from the creek, along which water ran during rainy seasons and did not go into the creek over appellees' lands, and the building of the railroad embankment caused the water to back up, when heavy rains fell, over a great deal of appellees' land and crops. The culvert which was built under the railroad at the creek, was built diagonally to, and not with, the bed of the creek, and was too small to carry the water off as fast as it came down and when the water passed through the culvert it struck only one bank of the creek, passed over it, and flooded the crops below the railroad. In constructing its embankment, appellant made a barrow pit from the creek out to a point near the depression, and caused the water to flow through it and over the lands of appellees. The testimony further shows that several heavy rains fell during the year 1909, which caused the overflows in the manner stated, and the destruction of several acres of corn, sorghum, and wheat belonging to appellees, for which they ask damages.

The engineer who constructed the culvert under the railroad testified that it was sufficiently large, and that he made it to carry the water from about 360 acres of land, which he supposed was all that would flow to it. Appellees' proof shows that the water from at least 500 acres had to pass through the culvert; that it was too small to carry it off as fast as it came down, which caused it to back up above the road 3 or 4 feet deep over many acres of their crops....