Yazoo & M. V. R. R. Co. v. Sibley

• Decision Date: 20 March 1916
• Docket Number: 14981
• Citation: 71 So. 167,111 Miss. 21
• Parties: YAZOO & M. V. R. R. CO. v. SIBLEY
• Court: Mississippi Supreme Court

71 So. 167

111 Miss. 21

YAZOO & M. V. R. R. CO. v. No. 14981

Supreme Court of Mississippi

March 20, 1916

APPEAL from the circuit court of Coahoma county, HON. T. B. WATKINS Judge.

Suit by J. N. Sibley against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mayes &amp Mayes, for appellant.

Cutrer & Johnson, for appellee.

OPINION

POTTER, J.

In April, 1912, the appellee, who was plaintiff in the trial court, filed his declaration against the appellant, defendant there, charging that prior to September 30, 1909, the appellant had built, or caused to be built and constructed, a certain railroad embankment, upon which it laid its tracks and over which it operated a part of its line of railway, and that said embankment was built through certain land described in the declaration as belonging to the plaintiff. The land in question was two hundred and twenty acres, and situated on the west or northwest side of the railroad embankment. The declaration further alleged that because of the method of construction of the railroad embankment, a certain natural water course was dammed, and the flow of the water thereby impeded and obstructed in such way as to occasion the overflowing of certain parts of the two hundred and twenty acre tract of land, and the declaration alleges that the natural slope of the land in question was toward said railroad embankment, and that the natural and usual flow of the surface of the water was across the land upon which the railroad constructed the above-mentioned embankment, and that the embankment had been so negligently constructed as to occasion the damming back of surface water, thereby causing the overflow of the lands of the appellee; that the obstruction to the flow of the surface water was unnecessary, and might easily have been prevented at little cost or expense to the railroad company; and that because of the flooding of the lands in question in the manner set out in the declaration certain crops of corn, cotton, and other agricultural products, the property of the appellee, were from time to time, during the years of 1910 and 1911, destroyed, and that the appellee was prevented for the same cause from clearing and putting into cultivation other portions of said land; and alleging that the plaintiff was prevented from deriving rents and profits from portions thereof, and consequently there was a demand for damages. There had been other suits against the defendant railroad company by the plaintiff in this case, for damages done to the same land and crops thereof in previous years on account of the construction of the railroad bank in question, and a recovery had. The testimony in this case shows that the conditions prevailing with reference to the construction and maintenance of the railroad on the day the present suit was brought were practically the same as they existed at the time the recovery was had in the last suit previous to the present one, which was brought at the April term, 1910, of the same court. During the progress of the trial, it was discovered that one of appellant's witnesses, A. J. Rylee, was absent, and the appellee was requested to agree that the testimony of Rylee, as given by him at the April term, 1910, of the court...