New York, C. & St. L. R. Co. v. Hamlet Hay Co.
| Decision Date | 26 October 1897 |
| Citation | 149 Ind. 344,47 N.E. 1060 |
| Parties | NEW YORK, C. & ST. L. R. CO. v. HAMLET HAY CO. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marshall county; A. C. Capron, Judge.
Action by the Hamlet Hay Company against the New York, Chicago & St. Louis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Morris, Bell, Barrett & Morris and S. E. Williamson, for appellant. A. A. Chapin and Zollars & Worden, for appellee.
This was an action by appellee against appellant for damages alleged to have been caused by the obstruction of natural water courses. It is alleged in the first paragraph of the complaint that in the year 1881 the appellant constructed its railroad over the Yellow river, a tributary of the Kankakee; that, from time immemorial, during the springtime and rainy seasons of the year the waters in said river are swollen by rains and freshets, so that the river rises above its ordinary channels, and flows in high-water channels, having well-defined beds and banks, and requires for the free passage of the water a much wider water way than at other seasons of the year; that, at the time of the construction of its said road, appellant built a bridge over said river, 1,800 feet in length, across the ordinary channel, and, at a short distance to the west of said bridge, built two other bridges, each 50 feet in length, for the free passage of water running in said high-water channels of said river when so swollen by rains and freshets; that afterwards, in 1886, appellant unnecessarily and negligently filled up all the water ways under said bridges with embankments of earth, except the space of 119 feet in length under the longest of said bridges, which space so left was insufficient for the free passage of water when the river was so swollen by rains and freshets as aforesaid; that during the spring of 1892 the water in the river was so increased by rains and freshets that it could not flow through the space left under said bridges, but, by reason of the filling up of said passage ways by embankments of earth, the water was obstructed and dammed up so that it overflowed appellee's land, spoiling and rendering worthless the hay and growing grass thereon. The second paragraph of the complaint differs from the first principally in alleging that the passage ways under the smaller bridges, and which were filled up by embankments, were separate and distinct water courses flowing into Yellow river.
It is contended that the complaint is fatally defective, first, “because neither paragraph avers that the manner of crossing Yellow river was not necessary to secure life and property, nor is it averred that the bridge could have been maintained in a different manner without injury to appellant's franchise.” This objection is based, as we think, upon a misapprehension of the provisions of clause 5, § 5153, Rev. St. 1894 (section 3903, Rev. St. 1881), by which clause a railroad corporation is empowered: The “life and property” and the “franchises” referred to in the statute are not those of the railroad corporation, but those connected with the “stream of water, watercourse, road, highway, railroad or canal” across which the corporation constructs its road. The statute forbids the corporation to cross a stream or highway in such a manner as to interfere with the free use of such stream or highway, or in such a manner as to endanger the lives or injure the property of those using or having interests in the stream or highway; and it requires, further, that after the crossing is made the corporation shall restore such stream or highway to its former state, or at least so far as necessary to preserve its usefulness and its franchises. So far as the corporation's own property and franchises, and the safety of its employés and passengers, are concerned, the statute was intended to make no provision. See, as to duty to restore stream or highway to its former condition, Railroad Co. v. Smith, 61 Fed. 885;Railway Co. v. McIntosh, 140 Ind. 261, 38 N. E. 476.
It is next objected that the waters which backed up over appellee's lands were flood waters occurring during rainy season, and as such were surface waters, against which appellant had a right to build its embankments, even to the damage of appellee. There is no doubt that flood water, which leaves the channels of a stream, and spreads out over the adjacent lands, running in different directions, or settling in pools and flats, ceases to be a part of the stream, and becomes, in effect, surface water. Such, however, was not the characterof the waters here alleged to have been thrown back upon appellee's land. The complaint says: “From time immemorial, during the springtime and rainy seasons of the year, the waters in said river are swollen by rains and freshets, so that the river rises above its ordinary channels, and flows in high-water channels, having well-defined beds and banks, and requires for the free passage of the water a much wider water way than in other seasons of the year.” It was this water flowing down the stream within the high-water channels-a part of the river, in fact-that was obstructed by the embankments, and thrown back upon appellee's land. Besides, the embankments here complained of were not built as levees to keep waters back from flowing upon the builder's own land, but obstructions that prevented the waters from flowing freely down the stream, as they would otherwise naturally have done. So far as concerns the claim made that the bridges were built in a careful manner, and so as to protect the...
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