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

• Decision Date: 17 January 1916
• Docket Number: 17068
• Citation: 110 Miss. 443,70 So. 459
• Parties: YAZOO & M.V.R. Co. v. SCOTT
• Court: Mississippi Supreme Court

70 So. 459

110 Miss. 443

YAZOO & M.V.R. Co. v. SCOTT

No. 17068

Supreme Court of Mississippi

January 17, 1916

APPEAL from the circuit court of Bolivar county. HON. T. R. SCOTT Judge.

Suit 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.

Montgomery & Montgomery, Chas. N. Burch, H. D. Minor and Mayes & Mayes for appellant.

We submit; First: That this land, according to the testimony of Mr. Burford, for fifteen years was not drained at all, so that no crops could be made on it except in one or two very dry years. Second: That if the drainage is not so good now as it was fifteen years before the suit was brought (and there seems to be very little difference according to the proof) it is because of the gradual accumulations of earth and gravel under the trestle, washed there by the rains, for which the defendant could not be liable. Certainly that is the law of this case under the fifth instruction given for the defendant and which must stand on this appeal because the plaintiff has not appealed and can assign no error. See Duff v Snyder, 54 Miss. 245.

We therefore submit that the plaintiff has no case, that the peremptory instruction for the defendant should have been given, and therefore ask that the case be reversed and dismissed.

This plaintiff knew the land before he rented it. He rented it knowing of this defect in the drainage. He bought a lawsuit; brought it and, on all of the evidence, he is entitled to lose it.

The case of Canton, etc., R. Co. v. Paine, 19 So. 199, is not in point here, because in that case the trestle was not properly constructed, while in the case at bar, the trial court specifically held, in the fifth instruction for the defendant, that the road was properly constructed.

In Ill. Cent. R. Co. v. Miller, 68 Miss. 763, the liability of the Railroad Company was upheld because the company had dug a ditch and thus precipitated the water on plaintiff's land.

Under all the evidence in this case, and in the light of all the authorities in Mississippi on the subject from the case of Ill. Cent. R. Co. v. Miller, 68 Miss. 763, down to the case of Y. & M. V. R. Co. v. Sultan, 63 So. 672, the plaintiff is not entitled to recover. These cases include, in addition to the two cited. Ala., Etc., R. Co. v. Beard, 93 Miss. 294; Ill. Cent. R. Co. v. Wilbourn, 74 Miss. 284; Sinai v. Louisville, etc., R. Co., 71 Miss. 547; K. C. & M. R. R. Co. v. Smith, 72 Miss. 677; Y. & M. V. R. Co. v. Davis, 73 Miss. 678; Thompson v. Railroad Co., 61 So. 596.

Thos. S. Owen, for appellee.

The first instruction for plaintiff is the law of this state as approved in Sinai v. L. N. O. & T. R. R. Co., 71 Miss. 547; Thompson v. Railroad, 61 So. 596; Railroad v. Sultan, 63 So. 672. In fact, instruction number 1, will, by comparison, be shown to be very much like instruction one in the Sultan Case, if not verbatim.

Instruction number 2 for plaintiff is also very similar to the instruction in the Sultan Case, and is borne out by the case above cited. Counsel, in commenting on this instruction, says that the opening was the full length of the natural drain. This is true but it is not the full depth of the natural drain as it originally was, and it is the duty of the appellant to make it that depth or deeper, if necessary, to permit the flow of water to drain the land.

Appellant also makes the statement that if plaintiff had dug a canal or ditch ten or fifteen feet deep from the western border of the right of way to Knox Bayou, it would not have been the duty of the railroad company to dig under its trestle, a canal or ditch of equal depth. If plaintiff had dug a canal ditch ten or fifteen feet deep along the natural water course on both sides of the right of way across his land, it would have been the duty of the appellant to have put one the same depth under its trestle to permit the flow of the water. In addition to the authorities above cited, see 72 N.E. 219; 50 Lawyers Ed., U. S. Reports, 596, where the right of a riparian landowner and a railroad company in a natural water course are fully discussed.

Instruction number 3. This instruction, on the measure of damages, can be found in the Sultan Case. The Smith case in 72 Miss. 677, quoted by counsel, has no bearing on this case. In that case, the crop was destroyed by the overflow of a creek before the water deflected by the embankment ever reached it. If the crop on this land in 1910 and 1911 had been destroyed by an overflow from a break in the levee, certainly we cannot be heard to complain of an injury to it by obstructing surface water, which had not reached the crop until it was covered by overflow water. Other authorities: R. R. Co. v. Hubbard, 85 Miss. 480, 485; Suther on Damages (3 Ed.), sec. 1023 and 1049; R. R. Co. v. Lackey (Miss.). 16 So. 909; R. R. Co. v. Davis, 73 Miss. 678; R. R. Co. v. Borsky (Tex.), 21 So. 911; Monographist note to R. R. Co. v. Sayers, 27 L. R. A. (N. S.) 168.

OPINION

STEVENS, J.

Appellee as plaintiff in the court below, instituted this action for damages against appellant, averring that by the improper construction and maintenance of appellant's roadbed the crops attempted to be raised by appellee on certain lands in Bolivar county were flooded and destroyed in the years 1910 and 1911. Appellee was lessee for the years 1910, 1911, and 1912 of a certain plantation through which the roadbed of appellant's railroad runs. To the east of the roadbed on the lands leased by appellee and to the north of these lands the natural slope of the land is to the southwest. The water that falls...