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

• Decision Date: 02 May 1896
• Citation: 35 S.W. 791
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. ANDERSON et al.
• Court: Arkansas Supreme Court

35 S.W. 791

ST. LOUIS, I. M. & S. RY. CO. v. ANDERSON et al.

Supreme Court of Arkansas.

May 2, 1896.

Appeal from circuit court, Jackson county; Samuel Peete, Special Judge.

Action by Ida F. Anderson and others against the St. Louis, Iron Mountain & Southern Railway Company for damages for obstructing a drainage ditch. From a judgment in favor of plaintiffs defendant appeals. Reversed.

Dodge & Johnson, for appellant.

BATTLE, J.

1. A railroad company has no right to fill up a ditch made for the purpose of drainage over lands afterwards acquired by it for a right of way, when the person owning the soil drained made said ditch over his own land, or had acquired the right of drainage thereby as an easement. It has no right to obstruct such drainage, but if it has occasion to cross the drain by an embankment or raised way, it is its duty to place a culvert or covered drain under it to carry off the water as before, and for a neglect to perform this duty is liable for the damages caused by the failure. Proprietors of Locks and Canals v. Nashua & Lowell R. Corp., 10 Cush. 385.

2. The next material question for consideration is, in what time shall an action for the damages occasioned by such an obstruction be brought? In Railway Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, it is said: "Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance." Railway Co. v. Morris, 35 Ark. 622, and Railway Co. v. Chapman, 39 Ark. 463, are cited to sustain the rule.

In Railway Co. v. Morris, supra, "a solid roadbed embankment was built across a wet-weather stream, which drained an area of several square miles." The railway company left an open trestle at a considerable distance from the natural crossing, and endeavored, without success, to drain off the water through that. The court held that the evidence justified the jury in finding that damage had resulted from the failure to use due care and skill in constructing the roadbed, and that the action for the recovery of such damage should be brought within three years from the time the embankment was completed.

In Railway Co. v. Chapman, supra, the appellant "erected and maintained an embankment on its right of way, across a natural drain or swale, through which the accumulation of waters from the surrounding...