St. Louis, Iron Mountain & Southern Railway Co. v. Anderson

• Decision Date: 02 May 1896
• Citation: 35 S.W. 791,62 Ark. 360
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ANDERSON
• Court: Arkansas Supreme Court

35 S.W. 791

62 Ark. 360

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ANDERSON

Supreme Court of Arkansas

May 2, 1896

Appeal from Jackson Circuit Court, SAMUEL PEETE, Special Judge.

On June 19, 1894, Ida P. Anderson and others filed their suit against the St. Louis, Iron Mountain & Southern Railway Company alleging that they were the lessees in possession of the old Patterson place, lying on the Batesville branch of defendant's railway; that in the spring of 1890 the defendant caused a trestle in said branch road, and near said farm, to be closed up, thereby stopping a natural drainage of said farm; causing six acres of cotton and four acres of corn to overflow; that said overflow occurred during the year 1893, to their damage $ 150. An amendment to the complaint alleged that, in the spring of 1890, the defendant caused a trestle on its road near said farm to be closed up, thereby stopping a drainage of said farm through a ditch that had been dug prior to 1871, and serving as drainage for said farm before the building of said road, and up to the time of its stoppage.

The answer in its first paragraph denied every allegation contained in the complaint, and in paragraph two pleaded the statute of limitations of three years, alleging "that said trestle or drain had been closed up three years next before the commencement of the suit."

A demurrer to the second paragraph of the answer was interposed and sustained, all proper exceptions being saved. Upon the complaint and first paragraph of the answer the case was tried.

The court gave the following prayer, at the request of plaintiffs, over defendant's objections:

The jury are instructed that if they find from the evidence that on account of the stoppage of the trestle on said defendant's railroad, plaintiffs' crops were overflowed and damaged, then they may find for the plaintiffs; and in estimating their damage they may take into consideration the rent of the land, the worth of cleaning it up, the worth of labor of preparing it for planting in, and the worth of work actually performed in cultivating it."

The court refused to give the following instructions asked by defendant:

"1. The plaintiffs allege that in the spring of 1890 the defendant caused a trestle to be closed up on its Batesville branch, thereby stopping the drainage of their farm. You are therefore instructed that, unless you find from the evidence that the defendant closed up said trestle and obstructed a natural drain, thereby causing plaintiff's land to overflow, you will find for the defendant.

"2. It would not be sufficient to prove that water which formerly drained off of plaintiffs' land by passing through the trestle was, by the closing up of the trestle, caused to overflow his land, but he must show that in a state of nature, unaided by a ditch, such water flowed off of plaintiff's land to the place where the trestle was through a natural drain.

"3. You are instructed that if, in order to drain the water from plaintiff's premises through the trestle in question, it was necessary to dig a ditch in that direction, and that without such ditch such water would not flow toward the trestle, then it was not such a natural drainage of water as would entitle the plaintiffs to have it kept open for their benefit, and the plaintiffs cannot complain on account of the closing of the trestle."

The jury returned a verdict for $ 86.25 for plaintiffs. A motion for a new trial was filed and overruled, exceptions saved and defendant appealed.

Reversed and remanded.

Dodge & Johnson, for appellant.

1. The action was barred by limitation. 35 Ark. 622; 39 id. 465; 50 id. 250; 52 id. 244; 56 id. 612.

2. The court erred in its instruction as to the measure of damages. 56 Ark. 613; 57 id. 399; 10 S.W. 576; 47 Ga. 26; 41 Wis. 602; 11 S.W. 123; 16 Ill. 534; 67 Barb. 88.

OPINION

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 & L. R. Co., 10 Cush. 385.

2. The next material question for consideration is, in what...