St. Louis Southwestern Ry. Co. v. Mackey

• Decision Date: 30 May 1910
• Citation: 129 S.W. 78
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. MACKEY.
• Court: Arkansas Supreme Court

Page 78

129 S.W. 78

ST. LOUIS SOUTHWESTERN RY. CO. v. MACKEY.

Supreme Court of Arkansas.

May 30, 1910.

Appeal from Circuit Court, Craighead County; N. F. Lamb, Special Judge.

Action by J. P. Mackey against the St. Louis Southwestern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

S. H. West and J. C. Hawthorne, for appellant. J. F. Gautney, for appellee.

FRAUENTHAL, J.

This was an action instituted by J. F. Mackey, the plaintiff below, to recover damage which he alleged was done to his personal and real property by water which it is claimed was wrongfully and negligently diverted from and obstructed in its natural flow and cast upon plaintiff's property. The plaintiff was the owner of two lots in the city of Jonesboro, upon which were located a storehouse and his dwelling house. The lots were situated on the south side of the defendant's railroad, and about 75 feet from its roadbed. At this place the natural flow of the water was from a southerly direction and across the defendant's road. Prior to the year 1907 the defendant had constructed and maintained two openings or culverts through its roadbed, and the testimony on the part of the plaintiff tended to prove that these two openings allowed the water that was accustomed to fall upon and drain over the land at this place to pass through the roadbed, and successfully carried it off. One of these openings or culverts was located in front of plaintiff's property, and the other opening was located about 150 yards east thereof. About 1907 the defendant constructed a switch along the side of its main track at this place, and in doing so built a dump, which widened the original roadbed. In building this dump it closed the opening or culvert in the roadbed to the east of plaintiff's property, and from that point it dug a ditch along the south side of its roadbed to the opening or culvert which was situated in front of plaintiff's property; but it did not increase the size of this opening. It thus diverted the water which prior to that time had been used and accustomed to flow east of the plaintiff's property, and caused it to drain to the opening in front of his property. The testimony on the part of the plaintiff tended to prove that this opening or drain was not sufficient to carry off the waters that ordinarily fell upon and drained over the land at this place during ordinary rains; that the natural flow of the water was thereby impeded during ordinary rains, and was cast back upon the land of the plaintiff, and greatly damaged it, and materially and substantially lessened the use and enjoyment of his property for a number of months during each year from that date up to the time of the institution of this suit. In February, 1907, a great and unprecedented rain fell, which flooded the portion of the city of Jonesboro in which plaintiff's property was situated. The testimony tended to prove that waters from these rains were greatly impeded and obstructed by the insufficiency of the opening in defendant's roadbed, and that they were cast back upon the plaintiff's property. From this cause the waters rose to a considerable height in the dwelling house and store. It injured materially the use and enjoyment of the property and it destroyed a part of and damaged a considerable portion of a stock of groceries and other goods which plaintiff carried in his store. Upon a trial of the case the jury returned a verdict in favor of plaintiff, assessing the damage to the rental or usable value of realty at $200, and to the personal property at $150; and from the judgment entered upon the verdict the defendant has appealed to this court.

It is the right of each proprietor along a natural drain or water course to insist that the water shall continue to flow as it has been used and accustomed to do; and when its natural course has been obstructed or changed so as to injure him, it is his right to recover recompense for the damages he has thereby sustained. It is the duty of a railroad company to so construct and maintain its roadbed as to cause no injury that could have been avoided by proper care and skill; and where such roadbed will obstruct and impede the natural flow and drainage of the water it becomes its duty to make sufficient openings for the passage of the water. In the case of Railway Company v. Cook, 57 Ark. 387, 21 S. W. 1066, its duty and liability is thus expressed: "It is the duty of a railroad company to provide proper and sufficient openings or culverts for the escape of the water of all streams crossing its roadbed, so as not to flood the land of upper riparian owners, whether at ordinary stage of water or during floods which could reasonably have been foreseen and guarded against; and if it fails to provide such openings it is liable to any person damaged thereby." If the railroad...