Sinai v. Louisville, N.O. & T. Ry. Co.

• Decision Date: 04 December 1893
• Citation: 71 Miss. 547,14 So. 87
• Parties: J. SINAI v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO
• Court: Mississippi Supreme Court

14 So. 87

71 Miss. 547

J. SINAI v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO

Supreme Court of Mississippi

December 4, 1893

FROM the circuit court of Sharkey county, HON. JOHN D. GILLAND Judge.

The case is stated in the opinion.

Reversed and remanded.

McLaurin & McLaurin, for appellant.

The question is not whether our courts will adopt the doctrine of the civil law as to surface waters, but whether a corporation will be permitted to enter upon and destroy a valuable plantation, or a number of them, with impunity, when it might enjoy its own property to the same extent without injury to others, and when due care and skill in the construction of its road-bed would avoid this injury and impose no additional expense on the company. The declaration alleges that a trestle could have been built as cheaply as the embankment and that it would have been as safe and convenient, and it further alleges that the probable harm to plaintiff could readily have been foreseen by the defendant. The decision of this case is of incalculable importance to land-owners in the Delta, in view of the peculiar topography of its lands, where the streams are sluggish and overflows are frequent. If the railroads can by embankments stop the flow of the surface and overflow waters, when trestles are as convenient and safe they may thus destroy immense bodies of valuable land without any liability to the owners.

Neither under the civil or common law may one collect surface water in artificial channels and discharge it in undue quantities upon the lands of another. Railroad Co. v. Miller, 68 Miss. 760. There is no difference in principle whether the water is collected in artificial channels or by artificial embankments. The defendant is liable under the allegations of the declaration. See 57 Tex. 48; 59 Ib., 128; 39 Ark. 463; 69 Ga. 396; 14 Conn. 146; 15 Ib., 312; 35 N.H. 569; 54 Ib., 545; 1 Redfield on Railways, 304; 1 Sedgwick on Dam., 207.

The right granted a corporation to enter and appropriate land against the will of the owner is an extraordinary right, and only goes to the extent of allowing the corporation to use it in a proper manner, with due regard for the property of others, and this requires the provision of sufficient outlets for surface water to pass off. 69 Ga. 396; 41 Ill. 502; 49 Ib., 484; 91 Ib., 111; 54 N.H. 545. See also 86 N.Y. 146; 54 Mich. 593; 70 Mo. 362; 16 Ohio St. 344; 78 Ala. 127; 37 Vt. 104; 98 Mass. 428; 134 lb., 14; 137 Ib., 277; 151 Ib., 181.

A. J. McLaurin, on the same.

While there may be no servitude jure naturae imposed upon the lower land for the upper land, there is no right in a corporation, allowed by law to take the private property for public use without paying for it, to build an embankment for its own use that destroys private property. Railroad Co. v. Chapman, 39 Ark. 463. There is no material difference whether one's property is taken for a public work, or the erection of the public work destroys the value of the property. We are not contending for the adoption of the rule of the civil law, but for an adaptation of the common law to the conditions now existing. 6 Lawson's Rights & Pr., § 2944; 91 Ill. 500; 74 N.C. 769; 62 Am. Dec., 170; 46 Cal. 846; 15 La. 681; 16 Ib., 151; 26 Pa. 407; 68 Ib., 824; 72 Ala. 277; 6 Am. & Eng. Enc. L., 542; 13 Wall., 166.

It is proper to say that if the defendant can legally dam up overflow and surface water within the Delta, more than a million acres of land there may be rendered worthless by it without any liability, on its part. The corporation, under its right of eminent domain, does not acquire the right of the proprietor of the land, but, for the public good, it appropriates to its own use the land of the owner, and it must so use it as not to damage the owner, or any one else, unless compensation be made. Barton v. Barbour, 104 U.S. 126.

Mayes & Harris, for appellee.

The sole question is, will this court adopt the common law rule as to surface waters? The common law forms the basis of our jurisprudence.1 Smed. & M., 569; 42 Miss. 1; 44 Ib., 322; 45 Ib., 402.

There is no pretense that there was any obstruction by defendant of a natural water-course, or that there was any collecting of water and discharging it through artificial channels on the lands of plaintiff. The declaration presents a case merely of retarding the flow of surface water so that it could not pass off plaintiff's land as rapidly as it did before the erection of the embankment. It is clear that if the common law prevails, a land-owner may appropriate to his own use or expel from his land all mere surface water or superficially percolating waters in draining his soil for agriculture, in collecting it for domestic purposes, or for the sole purpose of depriving an adjoining owner of it. Gould on Waters, 265. That the common law rule has been adopted in Mississippi we think is settled. Alcorn v. Sadler, 66 Miss. 221. See also Washburn on Easements & Servitude, 489; Angell on Water-courses, 122.

A railroad corporation duly authorized by law has no other or different rights in this regard than natural persons. No right of action arises from a single obstruction of surface waters. Gould on Water-courses, § 273; 53 Me. 200; 67 Ib., 353; 74 N.C. 227; 2 How. (N. Y.), 633; 52 Wis. 526; 109 Ind. 511; 22 Kan. 765; 60 Mo. 329; 10 Allen, 106; 29 N.Y. 459.

OPINION

WOODS, J.

The cause of action of appellant is stated as follows, in substance, in the declaration: That Sinai was the owner and in possession of a valuable plantation in section 21 township 13, range 7, in Issaquena county, in this state, worth the sum of $ 20,000; that the plantation was in what is commonly known as the "Yazoo and Mississippi Delta," where the lands are almost level, and the channels of the streams shallow and the flow of their waters sluggish, and the beds incapable of containing their contents in rainy seasons; that the lands said to have been damaged in this suit, lie between Deer creek and Mound bayou, on and near Otter bayou, Mound bayou being six miles west of Deer creek and two miles west of Otter bayou, and all flowing on parallel lines in the same general southerly direction; that the three streams named are all natural water-courses, and that there is a gentle and gradual downward slope in the earth's surface westward from the west bank of Deer creek, and a gradual downward slope eastward from the east bank of Mound bayou; that the lands on Otter bayou were good lands for agricultural purposes before the action of the appellee in building the embankment complained of; that just south of and near to the plantation of appellant, the appellee built and constructed, from Deer creek to Mound bayou, an embankment of dirt and other material for a road-bed for a railroad about four or five feet in height; that this embankment, stretching across the slight depression of the surface of the earth between Deer creek and Mound bayou, collected, dammed and threw back on appellant's plantation the rain waters and overflow waters from Otter bayou, which its banks could not hold in rainy seasons, which had theretofore been accustomed to flow, in their natural course, through and down the depression or swale between Deer creek and Otter bayou; that a great part of the rain water that falls on township 13 north of appellant's plantation, and a great part of the rain water that falls on township 14, lying north of township 13, all lying between Deer creek and Otter bayou, is gathered into small bayous, sloughs, depressions and a chain of natural lakes, and conducted to Otter bayou, and that these waters, united to that coming down in the channel of the bayou itself, cause the waters to overflow the banks of Otter bayou, and to flow out of the shallow bayous and depressions of Otter bayou to said embankment, where they are arrested, dammed and thrown back on said plantation, whereas, before said railroad embankment was erected, such overflow and rain waters were accustomed to pass harmlessly through the depressions and...