Norfolk & W. R. Co v. Carter.1

• Decision Date: 11 July 1895
• Citation: 22 S.E. 517,91 Va. 587
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. CARTER.1

22 S.E. 517

91 Va. 587

NORFOLK & W. R. CO.

v.CARTER.¹

Supreme Court of Appeals of Virginia.

July 11, 1895.

Diversion or Surface Water — Action against Railroad Company—Evidence—Damages-Practice— Remanding Case to Rules.

1. Where a summons is served on an agent of a defendant corporation less than 10 days before return day, in violation of Code 1887, § 3227, a motion to dismiss the action, and then a motion to quash the return of the sheriff on the process, are both properly overruled, the eor-rect practice being to remand the case to rules.

2. A landowner may obstruct or hinder the flow of surface water and may turn it back upon the land of his neighbor whence it came; and this right is possessed by a railroad company in respect to its right of way, but it must not be exercised wantonly, unnecessarily, or carelessly.

3. One cannot collect surface water into an artificial channel or volume and pour it upon the land of another, to his injury.

4. A landowner cannot interfere with the flow of surface water in a natural channel or water course, nor divert it from such a course, to another's injury.

5. If a railroad company deposits earth, stone, or gravel removed in the construction of its road upon a landowner's property without his consent, and allows the same to remain there, it is liable to him for such injury as he may sustain thereby.

6. Objections to a bill of particulars must be made before trial, or they are waived.

7. In assessing damages caused by the condemnation of a right of way for a railroad, it is not proper to consider damages which may arise from an illegal act not yet committed by the railroad company.

8. If a railroad destroys the only passway to land by depositing debris upon it while constructing its roadbed, the owner is entitled to damages, which are not adequately measured by the effect of such obstruction upon the value of the land thus cut off.

9. The jury estimated the damages to the plaintiff's land caused by a railroad company's depositing debris thereon and diverting surface water which naturally flowed off his land, but was allowed to remain thereon, at $1,000. Held, that the evidence sustained the verdict.

Error to circuit court, Russell county; Kelly, Judge.

Action by Jack Carter against the Norfolk & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Burns & Fulton, for plaintiff in error.

H. A. Routh, for defendant in error.

RIELY, J. Upon the calling of tbe case for trial, the counsel for the defendant company moved the court to dismiss It, upon the ground that it appeared that the process to commence the suit had been served on an agent of the company, and less than 10 days before the return day. Code Va. § 3227. This the court refused to do. A motion was then made upon the same ground to quash the return of the sheriff on the process, which motion thecourt sustained, and remanded the case to rules. The refusal of the court to dismiss the suit constitutes the first assignment of error. The action of the court was right, and this assignment of error Is without merit.

The plaintiff based his right of action in this case upon two grounds. The first ground was that the defendant, in building the Clinch Valley Division of its road, which runs through the land of the plaintiff, failed to construct in the fills or embankments in its road the proper and necessary number of culverts to carry off from his land the surface water, which, prior to the building of the road, flowed by natural channels into Clinch river; and that the water is thereby obstructed, and accumulates in ponds on his land, to his in jury. Upon the relative rights of adjacent landowners with respect to surface water there is a contrariety of judicial decision. Except where the civil-law doctrine of the servitude of the lower tenement prevails, the general rule is, however, that no action will lie for obstructing the flow of surface water. Where the common law is in force, as in this state, surface water is considered a common enemy, and the courts agree that each landowner may fight it off as best he may. He may obstruct or hinder its flow, and may even turn it back upon the land of his neighbor, whence it came. This results from the dominion the law gives to him over his land. His right to it extends beneath the surface to the center of the earth, and above it to the skies. He is entitled to the free and unfettered control of it above, upon, and beneath the surface, and cannot be held liable for any injury which its reasonable use and enjoyment may cause to other lands in interrupting the flow of surface water. He may change the surface of his own land, or erect buildings or other structures upon it, and thus restrain or divert the surface water which may accumulate on adjacent lands from falling rains and melting snows, without being made liable therefor to their owners. Gould, Waters, § 273; Angell, Water Courses, §§ 108a, 108b; Gannett v. Harga-don, 10 Allen, 106; Taylor v. Fickas, 31 Am. Rep. 114; Sweet v. Cutts, 9 Am. Rep. 276; O'Connor v. Railroad Co. (Wis.) 9 N. W. 287; and Washb. Easem. (3d Ed.) § 353 (3a). And this right is possessed by a railroad company in respect to its right of way as well as by any other owner of real estate. It enjoys the same privileges as any other owner of land; no greater, but no less. Gould, Waters, § 273; Jenkins v. Railroad Co., 110 N. C. 438, 15 S. E. 193; Rowe v. Railroad Co. (Minn.) 43 N. W. 76; Sullens v. Railroad Co. (Iowa) 38 N. W. 545; O'Connor v. Railroad Co. (Wis.) 9 N. W. 287; Railroad Co. v. Stevens, 38 Am. Rep. 139; and Railroad Co. v. Hammer, 31 Am. Rep. 216. This right in regard to surface water may not be exercised wantonly, unnecessarily, or carelessly; but Is modified by that golden maxim of the law, that one must so use his own property as not to injure the rights of another. It must be a reasonable use of the land for its improvement or better enjoyment, and the right must be exercised in good faith, with no purpose to abridge or interfere with the rights of others, and with such care with respect to the property that may be affected by the use or improvement as not to inflict any injury beyond what is necessary. Where the exercise of the rights is thus guarded, although injury may result to the land of another, he is without remedy. Lewis, Em. Dom. § 585; Washb. Easem. (3d Ed.) p. 455; Sweet v. Cutts, 9 Am. Rep. 276; Railroad Co. v. Wicker, 74 N. C. 220; Beard v. Murphy, 37 Vt 99; Railroad Co. v. Chap-man, 43 Am. Rep. 280; Abbott v. Railroad Co., 53 Am. Rep. 581; Taylor v. Fickas, 31 Am. Rep. 114; Railroad Co. v. Hammer, 31 Am. Rep. 216; and 24 Am. & Eng. Enc. Law, 920. The right, thus modified, has also Its exceptions. One exception is that the owner of the land cannot collect the water into an artificial channel or volume and pour it upon the land of another, to his injury. The right to fend off surface water does not extend that far. Davis v. City of Craw-fordsville (Ind. Sup.) 21 N. E. 449; City of Evansville v. Decker, 43 Am. Rep. 86; Railroad Co. v. Stevens, 38 Am. Rep. 139; Pa-toka Tp. v. Hopkins (Ind. Sup.) 30 N. E. 896; Rychlicki v. City of St. Louis (Mo. Sup.) 11 S. W. 1001; Railroad Co. v. Marley (Neb.) 40 N. W. 948; Chalkley v. City of Richmond (Va.) 14 S. E. 339; 2 Dill. Mun. Corp. § 1051; and Gould, Waters, § 271. Another exception to the right, which pertinently applies to this case, is that the owner of the land cannot interfere with the flow of surface water in a natural channel or water course. Where the water has been accustomed to gather and flow along a well-defined channel, which by frequent running It has worn or cut into the soil, he may not obstruct or divert It to the injury of another. Earl v. De Hart, 12 N. J. Eq. 280; Railroad Co. v. Chapman, 43 Am. Rep. 280; Gibbs v. Williams, 37 Am. Rep. 241; Palmer v. Waddell, 22 Kan. 355; Rowe v. Railroad Co. (Minn.) 43 N. W. 76; and 24 Am. & Eng. Enc. Law, 900-902.

Before proceeding to apply these principles to the case before us, it will be more convenient to notice the other ground upon which the plaintiff based his right of action. This was that the defendant, in constructing its said line, carelessly and negligently deposited large quantities of earth, stone, gravel, and other matter upon the plaintiff's land which adjoined its right of way, and allowed the same to remain there. The defendant acquired its right of way through the plaintiff's lands by purchase, and not by condemnation proceedings. This, however, would make no difference in its duty, nor alter its right or liability. These would be the same in either case. The plaintiff would be barred from a recovery against it, in the case of negligence or want of proper care in the construction of its road, only as to those matters which entered into the assessment in condemnation proceedings, and for which compensation would be allowed. Railroad Go. v. Daniel, 20 Grat. 375; Lewis, Em. Dom. §§ 89, 293, 572, 573; and Pierce, R. R. pp. 179, 218. Damages, under this rule, could be only for what could be foreseen and estimated. They could not with any propriety be assessed for an injury that might happen from an illegal act, or from the negligence or want of skill and care in the construction of its road. The injustice of a contrary rule is manifest. If compensation were included In the assessment for deposit ing, outside of its right of way, upon the land of another, the material excavated in building its road, which it would have no right so to deposit, and could not be presumed that It would do contrary to its duty, the deposit might not, as it probably never would, be made, and in such case the owner of the land would receive and the company pay for an injury that could not with propriety be anticipated, and one that in point of fact never happened. No compensation based on such a presumption of negligence would ever be tolerated by the law. Consequently, if the defendant did deposit on the land of...