The New York, Chicago and St. Louis Railroad Company v. The Hamlet Hay Company
| Decision Date | 26 October 1897 |
| Docket Number | 18,026 |
| Citation | 47 N.E. 1060,149 Ind. 344 |
| Parties | The New York, Chicago and St. Louis Railroad Company v. The Hamlet Hay Company |
| Court | Indiana Supreme Court |
Rehearing Denied Jan. 28, 1898, Reported at: 149 Ind. 344 at 353.
From the Marshall Circuit Court.
Affirmed.
John Morris, R. C. Bell, J. M. Barrett, S. L. Morris and S. E Williamson, for appellant.
Allen Zollars, C. H. Worden and A. A. Chapin, for appellee.
This was an action by appellee against appellant for damages alleged to have been caused by the obstruction of natural watercourses. It is alleged in the first paragraph of the complaint, that in the year 1881 the appellant constructed its railroad over the Yellow river, a tributary of the Kankakee; that from time immemorial during the springtime and rainy seasons of the year the waters in said river are swollen by rains and freshets, so that the river rises above its ordinary channels and flows in high water channels, having well defined beds and banks, and requires for the free passage of the water a much wider waterway than at other seasons of the year; that at the time of the construction of its said road appellant built a bridge over said river eighteen hundred feet in length across the ordinary channel, and, at a short distance to the west of said bridge, built two other bridges, each fifty feet in length, for the free passage of water running in said high water channels of said river when so swollen by rains and freshets; that afterwards, in 1886, appellant, unnecessarily and negligently, filled up all the waterways under said bridges with embankments of earth, except the space of one hundred and nineteen feet in length under the longest of said bridges, which space so left was insufficient for the free passage of water when the river was so swollen by rains and freshets as aforesaid; that during the spring of 1892 the water in the river was so increased by rains and freshets that it could not flow through the space left under said bridge, but, by reason of the filling up of said passageway by embankments of earth, the water was obstructed and dammed up so that it overflowed appellee's land, spoiling and rendering worthless the hay and growing grass thereon.
The second paragraph of the complaint differs from the first principally in alleging that the passageways under the smaller bridges, and which were filled up by embankments, were separate and distinct water courses flowing into Yellow river.
It is contended that the complaint is fatally defective, first, "because neither paragraph avers that the manner of crossing Yellow river was not necessary to secure life and property, nor is it averred that the bridge could have been maintained in a different manner without injury to appellant's franchise."
This objection is based, as we think, upon a misapprehension of the provisions of clause five, section 5153, Burns' R. S. 1894 (3903, R. S. 1881), by which clause a railroad corporation is empowered:
The "life and property" and the "franchises" referred to in the statute are not those of the railroad corporation, but those connected with the "stream of water, watercourse, road, highway, railroad or canal," across which the corporation constructs its road. The statute forbids the corporation to cross a stream or highway in such a manner as to interfere with the free use of such stream or highway, or in such a manner as to endanger the lives or injure the property of those using or having interests in the stream or highway; and it requires, further, that after the crossing is made the corporation shall restore such stream or highway to its former state, or at least so far as necessary to preserve its usefulness and its franchises. So far as the corporation's own property and franchises, and the safety of its employes and passengers are concerned, the statute was intended to make no provisions. See as to duty to restore stream or highway to its former condition, Lake Erie, etc., R. R. Co. v. Smith, 61 F. 885; Lake Shore, etc., R. W. Co. v. McIntosh, 140 Ind. 261, 38 N.E. 476.
It is next objected that the waters which backed up over appellee's lands were flood waters occurring during a rainy season, and as such were surface waters against which appellant had a right to build its embankments, even to the damage of appellee. There is no doubt that flood water which leaves the channels of a stream and spreads out over the adjacent lands, running in different directions or settling in pools and flats, ceases to be a part of the stream and becomes in effect surface water. Such, however, was not the character of the waters here alleged to have been thrown back upon appellee's land. The complaint says: "From time immemorial, during the springtime and rainy seasons of the year, the waters in said river are swollen by rains and freshets, so that the river rises above its ordinary channels and flows in highwater channels, having well-defined beds and banks, and requires for the free passage of the water a much wider waterway than in other seasons of the year." It was this water, flowing down the stream within the highwater channels, a part of the river, in fact, that was obstructed by the embankments and thrown back upon appellee's land. Besides, the embankments here complained of were not built as levees to keep waters back from flowing upon the builder's own land, but obstructions that prevented the waters from flowing freely down the stream as they would otherwise naturally have done.
So far as concerns the claim made that the embankments were built in a careful manner, and so as to protect the charter rights of the appellant, we may say, as was said in the Evansville, etc., R. R. Co. v. Dick, 9 Ind. 433, that the embankments may have been erected in a proper manner, so far as appellant's interest is concerned, and still be constructed in such a manner as necessarily to injure appellee. In such case there can be no place for the maxim damnum absque injuria, and the appellee must have its right of action for damages.
The third objection to the complaint is, that there is no allegation that the appellee was free from...
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