Yazoo & Mississippi Valley Railroad Co. v. Sultan

• Decision Date: 22 December 1913
• Citation: 106 Miss. 373,63 So. 672
• Parties: Yazoo & Mississippi Valley Railroad Company v. R. J. SULTAN
• Court: Mississippi Supreme Court

63 So. 672

106 Miss. 373

Yazoo & Mississippi Valley Railroad Company v. R. J. SULTAN

Supreme Court of Mississippi

December 22, 1913

October 1913

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

Suit by R. J. Sultan against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff for one hundred dollars and defendant appeals and plaintiff cross appeals.

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

Affirmed on direct appeal; reversed on cross appeal; remanded as to amount of damages.

Montgomery & Montgomery, for appellant.

The only question presented on the direct appeal of the railroad company in this case is this: Where land has been taken either by eminent domain proceedings or by deed, by the railroad company for the building and operation of its line of railroad and the roadbed has been built on the same and standing there for years, obstructing no watercourse obstructing no drain, obstructing no ditch nor channel in which the water runs and not collecting the water in any ditch and precipitating it on the land of a person, but merely obstructing the natural flow of water on the surface of the earth on the natural slope of the land, can any person lease a piece of land, on which for many years, the natural flow of water on the earth has been obstructed, and plant on it crops and make the railroad company pay him damages because the water flowing on the surface of the earth cannot get by the embankment of the railroad, and overflow and drowns out his crops.

If he can, then the action of the circuit court in refusing the instructions refused for the defendant was right. If he can't, then those instructions should have been given. In fact, the peremptory instruction should have been given to the jury, to find for the defendant because it is not contended in this case that there has been a drain of any kind obstructed, or there has been any water collected by the railroad company and precipitated on any one's land; but it is only contended that the railroad itself, which has been there for many years, obstructs the natural flow of the water on the surface of the earth. If the court should not have given the peremptory instruction for the defendant, certainly the fourth instruction asked for by the defendant should have been given and the case should be reversed in the direct appeal.

It is not shown in the evidence that the railroad company in constructing its roadbed failed in any duty and it is a principle of law, on which it is, I assume, not necessary to cite authorities; that in taking land for the purposes of a railroad company and in paying damages in eminent domain, the landowner is allowed prospective damages for the building of the roadbed, which may obstruct the natural flow of the water on his land. That is assumed to have been taken into consideration whether the land is taken in emiment domain or is taken by deed from the landowner. It is not contended in this case that Jones Bayou was obstructed in any way in its channel and the valley surrounding it is not to be taken as a part of the watercourse. See Railroad Company v Smith, 72 Miss. 677.

In the case of Sinai v. Railway Company, 71 Miss. 547, the question raised was that the railroad company by the construction of its embankment had caused the water of Otter Bayou to overflow its bank and be thereby dammed up and thrown back on the plantation of Sinai.

In the case of Railroad Company v. Davis, 73 Miss. 678, in discussing and distinguishing the Sinai case, our supreme court says: "It is not the law that the defendant was under the duty of so constructing its roadway as to preserve the land of the plaintiff from all injury by reason of water to which it would not have been subjected in its natural state. Plaintiff's farm is situated so as to be subjected to a sort of ebb and flow inundation from the eastern waters of Big Sandy Creek and others from the western waters of the Yalobusha River. Through this basin, this company, either by contract or condemnation, obtained a right to locate its roadway. Power is conferred upon it by the legislature to build the road conditioned only that by contract or condemnation proceedings, it should compensate the owners whose property was to be taken. This it has done to all the owners of the land, with the right to use it as such for the legitimate purposes for which it was secured. For all injury flowing from the lawful and proper construction of its roadway, it has already paid.

"In condemnation proceedings, all special damages present and prospective, to the owners of land, resulting or to result from the proper constructing and maintaining its road, constitute as to such owners, a single indivisible cause of action and it is conclusively presumed that the commissioners in making the award in case of condemnation, have considered and awarded damages for all such injuries and if the way has been secured by contract with the owner that he has demanded and received full compensation therefor. And it may reasonably be supposed that if a proper construction of the road will subject adjoining land to overflow, or obstruct its drainage, such damage should be estimated and allowed for." See, also, authority cited on page 693 of the opinion. We quote further from this opinion, the court says: "It is evident that, to construct a road on lands situated as were the plaintiff's, would inevitably, to some extent, obstruct the body of vagrant water, composed of both overflow and surface water, to which, in a state of nature, the plaintiff's lands were subject. The roadway, except where it crosses the defined banks of the streams and bayous, is in no proper sense within a watercourse. The alluvial lands of the Yazoo and Mississippi Delta were all built up by the deposits from the rivers. In a state of nature it is all subject to overflow, and if the roads in that country are to be so constructed as to preserve the nearest possible approach to a natural condition of waters, they must be placed upon trestles from one end of the valley to the other. "

The only possible conclusion in the case at bar is, not that the waters of Jones Bayou are dammed at all, nor that any stream of watercourse or even a swale through which the water flows in a channel has been obstructed, but simply that the roadbed interferes with the natural flow of the rain water on the surface of the earth at one place, to wit: a low, flat depression in no sense a watercourse.

See also Hatchett v. Railroad Company, 1 Miss., decisions page 38, in which it is held by our supreme court that the railroad company has the right to deal with the land condemned as it deems most beneficial to it. See, also, Illinois Central Railroad Company v. Miller, 68 Miss. 760. The case A. & M. V. R. R. Co. v. Beard, 48 So. 405, we submit is a case in point with the case at bar. Compare instruction number 4 asked for by the defendant, appellant, in this case with instruction number 27 asked for by the railroad company in the Beard case, supra, and they will be found to be in exactly the same language, and yet the court reversed the Beard case, because of the refusal of that instruction and we submit that the language of Mr. Justice FLETCHER in delivering the opinion of the court in the Beard case conclusively establishes the point that we are now contending for and this case must be reversed for the refusal of instruction number 4 for the defendant.

In the case at bar, we also insist that the court should have given the peremptory instruction for the defendant, because it does appear in this case that there is absolutely no conflict in the testimony and the obstruction complained of was an obstruction merely of surface rain water, and therefore, the appellee has no case at all.

Bedford, Allen & Bedford, for appellee.

The sole question raised by the direct appeal is simply whether or not a railroad company is liable for damages caused by the obstruction of any water not in a regular stream, regardless of the particular facts of each case. Appellant's view of the case is that in order for the railroad to be liable, in any event, its embankment must obstruct the flow of water in a stream or other natural watercourse. This in the very teeth of every adjudicated case in Mississippi. The law in Mississippi is well settled that when the contour of land is such that a railroad company must dam the natural outlet of surface water from farm lands, and the railroad company can prevent the injury without substantial additional inconvenience, expense or danger, they must prevent such injury. This is the rule laid down in the first adjudicated case in Mississippi on the subject: Sinai v. R. R. Co., 71 Miss. 547, 14 So. 78. The Sinai case has been, so far as we can find, uniformly approved and followed. R. R. Co. v. Paine (Miss.), 19 So. 199; R. R. Co. v. Beard, 93 Miss. 294, 48 So. 405; R. R. Co. v. Davis (Miss.), 19 So. 487; R. R. Co. v. Miller (Miss.), 10 So. 61; Ry. Co. v. Lackey, 72 Miss. 881; and R. R. Co. v. Miller, 68 Miss. 760.

The only question raised by the cross appeal is as to the proper measure of damages. The court below permitted the defendant to introduce testimony as to the probable cost of a ditch on land adjacent to that of plaintiff, sufficient to drain such adjacent land and then instructed the jury, by instruction number 2 for the defendant below, that they could not find for the plaintiff for more than it would have cost that plaintiff to have dug a ditch in the spring of 1909 into Jones Bayou and thereby relieve the land the drainage of which was complained of from the rain water and that if the jury believed, from the evidence, that such ditch could have been dug, giving the plaintiff as complete drainage...