Smith v. Philadelphia & R.R. Co.

• Decision Date: 26 September 1893
• Citation: 57 F. 903
• Parties: SMITH v. PHILADELPHIA & R. R. CO.
• Court: U.S. District Court — District of New Jersey

57 F. 903

SMITH v. PHILADELPHIA & R. R. CO.

United States Circuit Court, D. New Jersey.

September 26, 1893

R. V Lindabury, for plaintiff.

John R Emery and Samuel H. Grey, for defendant.

GREEN District Judge.

This is an action to recover damages alleged to have been caused to the plaintiff's farm by the construction and maintenance of an embankment crossing a living stream, and what was termed a 'freshet-water channel,' thereby penning back the water upon the land of the plaintiff, causing it to become wet, boggy, and sour, and washed away in places. The jury returned a verdict in favor of the plaintiff for $3,201.84, whereupon a motion was made for a new trial.

A close examination of the evidence satisfies me that a verdict against the defendant ought to be maintained. I think the weight of testimony is clear that the embankment in question not only absolutely stopped the flow of a living stream of water causing it to dam back upon the plaintiff's land rendering it boggy and marshy in places, but as well interfered with the usual flow of the water as it passed across the farm of the plaintiff in times of freshet, changing it in its course almost at right angles, and causing an action of the water which apparently inflicted damage upon the soil. But the verdict in this case, in my opinion, is excessive. The embankment in question was built in 1872. No suit was commenced for damages until 18 years thereafter. By force of the statute of limitation, such suit could only be for such damage as was inflicted between 1884 and 1890, when the suit was commenced; in other words, for the six years antecedent to the date of the writ. It is perfectly clear that the action of the embankment upon the water, both of the living stream and the waters of the river in times of freshet, must practically be constant; hence it is evident that during the 12 years from 1872 to 1884, if, as this jury found, the embankment is the cause of the damage, the land of the plaintiff must have been subject to its deleterious influence, and have been rendered year by year less and less valuable. Yet, for all that damage then inflicted the plaintiff is not entitled to recover. Possibly during the six years covered by this suit the evidences of damage might have become more patent. The soil had become gradually water-soaked and boggy and marshy, and would make less resistance to the movement of the freshet water as it swept...