The Toledo v. Morrison

• Decision Date: 31 January 1874
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.JAMES C. MORRISON.
• Court: Illinois Supreme Court

71 Ill. 616

1874 WL 8737 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.JAMES C. MORRISON.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Christian county; the Hon. HORATIO M. VANDEVEER, Judge, presiding. Mr. G. B. BURNETT, for the appellant.

Messrs. MOULTON & CHAFFEE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action on the case, brought by Morrison against the Toledo, Wabash and Western Railway Company, to recover damages for overflowing the land of the former with water. The complaint in the declaration is, that, previous to the construction of the defendant's railroad, the surface water that was accustomed to accumulate near the plaintiff's premises flowed and passed off in a direction from said premises, but not over and upon them; that since the construction of the railroad, by means of its embankment and ditches along its side, the surface water had been obstructed in its natural flow from plaintiff's premises, and wrongfully directed and turned, and caused to run for a great distance along the embankment towards a culvert under the road-bed near the plaintiff's land, and to pass through the culvert in largely accumulated quantities, and flow upon the land of the plaintiff, causing him damage. A verdict and judgment were rendered in favor of the plaintiff, and the defendant brings the case here by appeal.

It is assigned as error that the court below erred in giving and refusing instructions.

The court gave all the instructions asked by the plaintiff, and refused all those asked by the defendant.

The plaintiff's instructions were of the tenor of the following one of them:

“2. The court instructs the jury, for plaintiff, that the defendant has no right, by an embankment or other artificial means, to obstruct the natural flow of the surface water, and thereby force it in an increased quantity upon the land of another; that if the jury believe, from the evidence, that the defendant has, by an embankment or other artificial means, obstructed or diverted the natural flow of the surface water, so as to force an increased quantity upon plaintiff's land, then the defendant is liable for the injury that the plaintiff has sustained by such acts of the defendant.”

The following is one of the refused instructions asked by the defendant, the others being of a similar character:

“The law is, that when a railroad company builds its railroad in a proper and skillful manner, and the owner of adjacent land is injured thereby, he can not recover damages for such injury; he can only recover where his injury results from the unskillful or negligent manner of building the road. And, in this case, unless the plaintiff has shown, by a preponderance of evidence, that the road of defendant was built in a negligent or unskillful manner, and that he has been damaged by reason of such negligence or unskillfulness in the construction of said road, the jury will find for the defendant.”

The railroad was constructed in 1869. The damages recovered for, were for the years 1870 and 1871, so that the question as to the propriety of the instructions is to be considered irrespective of the provision of the constitution of 1870, section 13, article 2, that “private property shall not be taken or damaged without just compensation”--the road having been built and a portion, at least, of the damages having accrued prior to the adoption of that constitution.

There is no...