Kansas City, Memphis & Birmingham Railroad v. Lackey, 72 Miss. 881

72 Miss. 881 | Miss. | 1895

Woods, J.,

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 600 feet. Between the lands shown to have been damaged and Town Creek, runs the railway line on the continuous embankment before referred to. Before the construction of the railroad in 1886, and afterward, until the cutting of its embankment and the putting in by the appellant of the trestle in its roadbed in appellee’s farm, good crops were uniformly made, notwithstanding the fact of the overflow of the lands by waters from the creek in time of freshet. These overflows spread gently and evenly, to the depth of about twelve inches, over the lands, and speedily, and without damage to the soil or its productive capacity, flowed^ff.

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 the condemnation proceedings, the owner received compensation from the railroad company only for such damages as he would sustain by the proper construction of its line. Neither the owner nor the commissioners who condemned the right of way and awarded compensation, would have been justified, the owner in asking, or the commissioners in imposing, any sum of money for damages to be done by an improper construction of the railroad thereafter. The presumption was that the railroad would properly construót its road, and hence no damages could properly have been awarded for injuries that could never occur, if appellant properly constructed its road. Sinai v. Railway Co., 71 Miss., 547. We find no error in the case.

Affirmed.