72 Miss. 881 | Miss. | 1895
delivered the opinion of the court.
The evidence in this case shows with reasonable certainty that the roadbed of appellant’s railway rests upon an embankment extending through the entire farm of appellee and for an undisclosed distance on both sides. Town Creek.is a considerable stream running through the valley in which the farm lies, and the line of the railway runs, in general terms, parallel with the creek and separated from it in distances varying from 200 to
In the year 1889, the trestle complained of was put in, and about fifteen acres of the cultivated field has been rendered useless ever since, by reason of the waters flowing through this trestle with great force and in large volume on appellee’s place. From the nearest trestle in the embankment on the north (about 1,200 yards) to the nearest trestle in the embankment on the south (about a quarter or half mile) the trestle in the embankment in appellee’s field affords the only way of escape for the overflow waters from Town Creek, dammed by the long embankment. Through this opening (sixteen feet in width), the confined overflow waters pour, and the entire waters which, before the construction of the railway’s embankment, gently and evenly spread out over all of appellee’s field, now are discharged through this single outlet in great quantities and with much violence upon the few acres adjacent to the trestle, whereby, it is manifest, the appellee has been really damaged. Call the waters thus dammed and discharged through this small trestle overflow or surface waters, and the merits of the controversy will not be at all affected, for one may not collect surface water and discharge it injuriously upon the lands of another. This point is distinctly settled in Railroad v. Miller, 68 Miss., 760.
The contention of appellant’s counsel that no recovery should be had in this case because of compensation once made the owner of these lands in condemnation proceedings, is not sound. In
Affirmed.