Miller v. Ervin

• Decision Date: 23 March 1942
• Docket Number: 34838.
• Citation: 192 Miss. 712,6 So.2d 910
• Court: Mississippi Supreme Court
• Parties: MILLER v. ERVIN et al.

6 So.2d 910

192 Miss. 712

MILLER v. ERVIN et al.

No. 34838.

Supreme Court of Mississippi

March 23, 1942

Loving & Critz, of West Point, for appellant.

N H. Malone, of West Point, and Carl Fox, of Mobile, Ala., for appellee.

McGEHEE Justice.

This suit is one for damages alleged to have been sustained by the appellant in the sum of $2,265 on account of 30.2 acres of her land having been subjected to overflow by reason of the digging of a ditch on the right-of-way of the Mobile and Ohio Railroad Company while the same was being operated by the appellees as receivers.

The particular line of railroad involved was that running in an easterly direction from Artesia towards Montgomery, Alabama and the plaintiff's farm was located immediately north of the right-of-way, along which the ditch was dug on the north side of the track. It was shown that the ditch was excavated in order that the dirt taken therefrom might be used to strengthen and build up the road-bed parallel with the ditch in order that a single locomotive engine might pull trains over that portion of the line, whereas theretofore it had required two locomotive engines or a "double header" to be used for that purpose. Excavation was made by the use of a drag-line operated by two laborers and at a cost slightly in excess of four cents per cubic yard, whereas it was shown that to have brought the dirt from elsewhere it would have been necessary to haul the same and that the operation would have cost the Railroad Company approximately forty cents per cubic yard to move the dirt to the place where it was used.

Ordinarily a railroad company has the right to use its right-of-way for the purpose of securing dirt by excavation and with which to build, strengthen or maintain its track-bed without responding in damages to an adjoining land owner consequent thereto. New Orleans, B. R., V. & M. R. Co. v. Brown, 64 Miss. 479, 1 So. 637; City of Canton v. Cotton Warehouse Co., 84 Miss. 268, 36 So. 266, 105 Am.St.Rep. 428, 65 L.R.A. 561; R.C.L., Vol. 22, pp. 863 et seq., §§ 114 & 115. But where in making such use of its right-of-way the railroad company interferes with the flow of surface water on the land of the adjoining owner, it may become liable for damages resulting therefrom where it is shown that another method for such construction, strengthening or maintenance which is equally safe, convenient and inexpensive could have been used so as to avoid such damages to the adjoining land owner. Sinai v. Louisville, N. O. & T. R. Co., 71 Miss. 547, 14 So. 87; Kansas City, M. & B. R. Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L.R.A. 762, 48 Am.St.Rep. 579; Yazoo & M. V. R. R. Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L.R.A. 262, 55 Am.St.Rep. 562; Illinois Central R. Co. v. Wilbourn, 74 Miss. 284, 21 So. 1; Alabama & M. R. R. Co. v. Beard, 93 Miss. 294, 48 So. 405; Thompson v. Mobile, J. & K. C. R. Co., 104 Miss. 651, 61 So. 596; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L.R.A.1917F, 942; Mobile & Ohio R. R. Co. v. Tays, 142 Miss. 743, 107 So. 871; Columbus & Greenville R. R. Co. v. Taylor, 149 Miss. 269, 115 So. 200; Toler v. Bear Drainage Dist., 141 Miss. 851, 106 So. 88, 89. And where no other method equally safe, convenient and inexpensive as that adopted by the railroad company could have been used, any damage to an adjoining land owner by reason of interference with surface water is conclusively presumed to have been compensated for in the acquisition of the railroad company's right-of-way. Yazoo & M. V. R. R. Co. v. Davis, supra; City of Canton v. Cotton Warehouse Co., supra; Columbus & Greenville R. Co. v. Taylor, supra; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565.

It was neither alleged nor proven in the instant case that the strengthening and building up of the road-bed at the point in question could have been done by a method other than that followed by the defendant carrier except at an enormously increased cost for the work as compared with the cost of approximately four cents per cubic yard of dirt taken in excavating the ditch alongside the road-bed at the point in question.

At the conclusion of the evidence offered by both the plaintiff and the defendant the Court below granted a peremptory instruction in favor of the defendant railroad company. This action of the Court is assigned as error on this appeal.

The facts disclosed that the ditch was excavated as a continuous project for several hundred feet on a down grade and of such width and depth as to carry the water which flowed therein from the lands of the appellant at such an accelerated velocity that when the same emptied into a large pond underneath a trestle at the east end of the ditch it was caused to overflow onto the lands of the appellant to the north before the waters could pass out of the pond through its natural outlet, as they were able to do prior to the digging of the ditch. But it is not contended that the ditch brought any additional water to the pond from other lands than those owned by the appellant, but that it merely accelerated the flow of the waters into the pond as aforesaid and the plaintiff also contends that prior to the digging of the ditch the road-bed absorbed a great deal of the water which flowed from her lands down to the right-of-way.

On motion of the appellees, as defendants in the court below, and after hearing proof on such motion a view of the premises by the jury was allowed over the objection of the appellant. The trial was then in progress in Clay County, whereas the premises to be viewed were located in the adjoining county of Lowndes, some twenty miles distant from the courthouse in Clay County. Upon the entry of the order granting a view of the premises by the jury the record shows that the trial Judge, jury, sheriff, clerk, court reporter, and the witnesses went into Lowndes County, viewed the premises in question and took the testimony of witnesses introduced both on behalf of the plaintiff and defendant at the scene and later returned to the courthouse in Clay County where further evidence was introduced and the trial concluded.

It is, therefore, contended by the appellant that the case should be reversed for a new trial on account of the fact that a part of the trial which resulted in the judgment appealed from, was held at a place not authorized by law.

Section 2066 of the Mississippi Code of 1930, provides:

"When, in the opinion of the court, on the trial of any cause, civil or criminal, it is proper, in order to reach the ends of justice, for the court and jury to have a view or inspection of the property which is the subject of litigation, or the place at which the offense is charged to have been committed, or the place or places at which any material fact occurred, or of any material object or thing in any way connected with the evidence in the case, the court may, at its discretion, enter an order providing for such view or inspection as is herein below directed. After such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by him and by the representative of each side at the time and place of such view or inspection, in reference to any material fact brought out by such view or inspection. The court on such occasion shall remain in session from the time it leaves the courtroom till it returns thereto, and while so in session outside the courtroom it shall have full power to compel the attendance of witnesses, to preserve order, to prevent disturbance and to punish for contempt such as it has when sitting in the courtroom. In criminal trials all such views or inspections must be had before the whole court and in the presence of the accused, and the production of all evidence from all witnesses or objects, animate or inanimate, must be in his presence."

The appellees argue that the statute does not restrict the view to a place or places situated within the county where the trial is being held, and in contending that no error was committed by the Court below in permitting a view of the premises located in another county, they cite the following cases: People v. Bush, 71 Cal. 602, 12 P. 781; Jones v. State, 51 Ohio St. 331, 38 N.E. 79; Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E 890; Commonwealth v. Dascalakis, 246 Mass. 12, 140 N.E. 470; Commonwealth v. Handren, 261 Mass. 294, 158 N.E. 894. However, the statute under which the California case, supra, was decided, Penal Code of California Section 1119, does not permit any person to speak or communicate with the jury at the scene visited on any subject connected with the trial, and that court held in the case of People v....