St. Louis, I. M. & S. Ry. Co. v. Magness

• Decision Date: 13 December 1909
• Citation: 123 S.W. 786
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. MAGNESS (two cases). SAME v. MOORE.
• Court: Arkansas Supreme Court

123 S.W. 786

ST. LOUIS, I. M. & S. RY. CO. v. MAGNESS (two cases).

SAME v. MOORE.

Supreme Court of Arkansas.

December 13, 1909.

Appeal from Circuit Court, Independence County; Chas. Coffin, Judge.

Actions by W. T. Magness, by S. A. Moore, and by R. T. Magness against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff in each action, defendant appeals. Affirmed.

The hypothetical question asked of certain of plaintiffs' witnesses and referred to in the opinion, was as follows: "Taking the actual value of the lands of plaintiff claimed to have been damaged at the completion of the digging of defendant's ditch and raising of its [defendant's] roadbed, and supposing the consequences to be known at that time, and comparing with what the value would have been if the flow had remained as formerly, and fixing your damage at the difference, what do you think would be the damage to the land?"

The fourth instruction given at plaintiffs' request was as follows: "If you find for plaintiffs in this case, then in assessing their damages it would be your duty to take and consider the actual value of the lands in controversy at the time the work was completed, supposing the consequences to be known, compare it with what the value would have been if the overflow of the lands had remained as formerly, without the waters of Thomas creek being diverted upon said lands, and the difference in the value of each of said tracts would be the measure of damages in each case."

Thomas creek, a stream in Independence county, Ark., flowed in a course that was generally south and southwest into Mud creek, which latter stream emptied into White river. In 1882 appellant built its railroad across Thomas creek. The stream had well-defined banks where the appellant crossed it with a trestle, designated in the evidence as "No. 1523." Soon after this trestle was constructed, the stream began to fill up above and below the trestle. The main channel continued to fill, and at a point about a half mile north of the trestle the waters began to diverge in a southeast course, making a new channel. Part of the waters of Thomas creek flowed in this new channel, which gradually cut its way in a southeast direction to the railroad, about one-fourth of a mile east of trestle No. 1523. When the waters flowing through this new channel reached the railroad, they flowed over and through the roadbed, and continued on south and southeast of the railroad, spreading out through the bottoms, and finally into Mud creek, and thence into White river. In times of high water both the old and new channels of Thomas creek would overflow and spread over the lands of one Powell. In 1902 Powell, to protect himself from the overflow of these waters, turned the entire flow of the waters of Thomas creek in low stages through the new channel, by digging a ditch and straightening the new channel in places.

Powell testified that when he bought the land in 1902, he saw that the channel of the old creek was changing east within itself, "scooping a great, big channel, and the water was leading from the old creek bed to those places leading from the southeast corner of his field near the cattle gap in the railroad." "He channeled it on through." One witness testified that the digging of the ditch by Powell did not make any particular difference. Says the witness: "Before that [Powell] ditch was dug, the water would leave the old channel and make across his field, make a southeast course, making down the railroad. Some of it would leave it over two-thirds of the way up the ditch from the railroad to the county road. All the way gradually along it would cut out gullies. They are there to be seen yet, some of them; and would cut out gullies, making its course that way. Before that the biggest part of the water went that way anyhow. So far as the cutting of that little ditch through that field, it didn't make a great deal of difference in the amount of water that went down the railroad there before the ditch was cut." After the cutting of the ditch by Powell, the water at low stages even passed through the new channel, and over and across the railroad, and thence south and southeast into Mud creek. While this condition continued, even in times of highest flood, the waters from Thomas creek did not damage the land of appellees. In 1906 appellant raised its roadbed considerably from trestle No. 1523 east to what is called trestle No. 1522, and cut a wide ditch from the point where the waters of Thomas creek, through the new channel, reached its track, thence east on the north side of its roadbed to trestle No. 1522. This ditch was cut by the railroad in August, 1906. After the appellant thus raised its roadbed and cut the ditch, the whole volume of the waters from Thomas creek passed through this ditch. The raising of the roadbed and the digging of the ditch caused the waters of Thomas creek that had formerly passed over, through, and across the railroad now to flow further to the east and south, and in times of flood they spread out over the lands of appellees, producing the injury of which they here complain.

The complaints were separate, each plaintiff alleging the damage he had sustained by reason of the overflow of his land. The alleged cause of action was as follows: That in August, 1906, defendant wrongfully and unlawfully changed the usual, ordinary, and natural course of said creek, and the flow of surface water north of said railroad right of way and of plaintiff's lands, by filling the opening or trestle in the embankment through which said creek had formerly passed, and by digging a large ditch from said point where said creek had formerly existed easterly along the north side of the railway track to a point near the corporate line of the town of Newark, and about the center of the southeast quarter of the northwest quarter of section 5, at which point defendant constructed a trestle under its said railway track; that by reason of the construction of said ditch and the raising of its track and embankment, the waters of Thomas creek were diverted from their usual, ordinary, and natural course, and carried down through said ditch and discharged upon plaintiff's lands, and by reason of such wrongful and unlawful diversion of such waters and their discharge upon said lands, such lands have been overflowed, inundated, washed, and injured, and will continue to be so overflowed and inundated, and totally and permanently injured and damaged. W. T. Magness alleged in his complaint damage to his crops for the year 1906 in the sum of $1,047.50. He and the other appellees, in addition to the damage to their lands, asked for other damages subsequent to the year 1906. But it is unnecessary to set out these. The appellant answered, denying all the material allegations of the respective complaints, and setting up in each case the following defenses: "That if plaintiff had suffered any damage whatever, such damage was caused by the act of parties other than defendant in interfering with the natural flow of water, and denied that there was any interference or diversion of the natural flow of waters by any act of the defendant" — also contributory negligence and the three-year statute of limitations. W. T. Magness instituted his suit September 12, 1907; S. A. Moore instituted his suit April 21, 1908; and R. T. Magness instituted his suit October 1, 1908. There was a verdict and judgment in favor of W. T. Magness for $3,200, and in favor of R. T. Magness for $580, and in favor of S. A. Moore for $650. Appellant seeks by this appeal to reverse these several judgments. Other facts stated in opinion.

E. B. Kinsworthy, Lewis Rhoton, and S. D. Campbell, for appellant. S. A. Moore, Ernest Neill, and McCaleb & Reeder, for appellees.

WOOD, J. (after stating the facts as above).

The waters that flowed through the new channel of Thomas creek as straightened by Powell — "Powell's ditch," as it is often called in the evidence — were not surface waters, but waters of a well-defined stream that had been diverted into a new and different channel. Whether this diversion was caused primarily by appellant in obstructing the old channel, or by natural causes, or by Powell, is wholly immaterial in this case, because for at least four years the waters of this stream, at low stages and at flood tide, had passed over appellant's railroad in a certain course, and had flowed out into other streams without doing any damage whatever to the lands of the appellees. In 1906 appellant obstructed and prevented the flow of these waters in the course they had been flowing over, through, and across its roadbed, by raising its embankment. Appellant also gathered these waters at the same time into a ditch, cut by it, and turned them in a direction where there were no sufficient natural or artificial outlets for them. As a direct consequence of this conduct of appellant, these waters overflowed the lands of appellees, who were lower proprietors, along the course they were compelled to flow after their obstruction and diversion as above mentioned. These facts are established by the uncontroverted evidence. The obstruction and diversion by appellant in the manner indicated were of a permanent nature, and necessarily injurious to the lands in the track of the inevitable overflows caused by them. Therefore, according to our cases (some very recent), the damages caused by the construction of...