128 Ky. 26 | Ky. Ct. App. | 1908
Reversing.
Queen Long and her children live in Logan county, upon a small tract of land situated on the east side of the Louisville & Nashville Railroad. She bought the property in the year 1900, and has since lived upon it with her children. It contains about three-fourths of an acre. They make their living mainly by taking in washing. Shortly after they- moved to the place, they dug a well or deep spring on the land near the right of way of the railroad. This spring has since furnished a never-failing supply of water for household and domestic purposes. About June, 1906, one of the trains on the railroad killed a yearling heifer near her place, and the section crew under the supervision of the section foreman buried the carcass on the right of way on the opposite side of the track from the spring, and a little north of it. About a week or 10 days after the heifer w.as buried the water of the spring became very foul smelling and unfit for use. This condition continued for some months. Queen Long and her children brought this action against the railroad company for the pollution of the spring. The land where the animal was buried is higher than the land where the spring is, and the natural drain o.f the surface water was originally toward the spring, but the railroad had made a fill some six or eight feet high between the point where the cow was buried and the spring.- The fill was made when the railroad was built many years ago. The spring is 39 feet from the center of the track of the railroad, and the heifer was buried on the opposite side of the track and on the right of way about 70 feet in a straight line from the spring.. On this proof
The plaintiffs produced on the "trial the deed which had been made them for the property. They did not show title from 'the Commonwealth, and. this was unnecessary. They were' in possession. If the defendant had wrongfully polluted their spring, they may recover such damages as they have sustained without showing a title to the land. The defendant set up no claim to the spring, and the person in possession may recover for a trespass or to'rt against a wrongdoer without showing title. L. & N. R. R. Co. v. Moore, 101 S. W. 934, 31 Ky. Law. Rep. 141, 10 L. R. A. (N. S.) 579. The most serious question in the case is whether the proof shows any liability on the part of .the defendant. A person may lawfully bury a dead body on his own land. The railroad company had the fight to bury the heifer on its right of way. It was charged in the petition that the defendant negligently buried the animal so close to - the spring that the water became polluted. There is no proof that the defendant had any reason to-anticipate that the subterranean stream which fed the spring passed near the point where the heifer was buried. It is not shown that the heifer was-not properly buried, and it is manifest from the proof that the decomposed matter from the body of the heifer did not reach the spring on the surface of the ground. Two questions therefore arise for decision: (1) Is the defendant responsible in any event for the pollution of the-spring-from the - body -of' the heifer, although it had no reason-to suppose that -this'result would follow! (2) Is there enough in the evidence to show a want of proper care on the part .of the defendant in burying the heifer as it did!
If a person who has on his premises fire, water, gas, or electricity is not an insurer, and is only responsible for damages where proper care is not used, certainly a greater liability should not be placed upon one who buries a dead body upon his own land. The rule is universal that the owner may dig on his own land such wells as he needs, although in doing so. he may dry up his neighbor’s well; but that he may not do this maliciously or use the water unnecessarily. Houston & Texas Central R. R. Co. v. East, 98 Tex. 146, 81 S. W. 279, 66 L. R. A. 738, 107 Am. St. Rep. 620, 4 Am. & Eng. Ann. Cas. 827, and note. If the owner of the land may divert the water from his neighbor’s well, it is hard to understand why he should be responsible in damages when, without fault on his part, he accidentally pollutes the water by burying a dead body on his own land without any reason to suppose that the effect of this would be to pollute his neighbor’s spring. The rule is elementary that a person, is not liable for a mere accident which ordinary care on his part could not have anticipated or guarded against. The rule that a man must use his own property so as not to injure his neighbor has never been understood to make one an insurer in the lawful use of his property. If, in the lawful use of his property, a man accidentally does an injury to his neighbor which ordinary prudence would not have
2. As to the second question, the rule is that where there is room for an honest difference of opinion among intelligent .men as to whether the conduct of the defendant was that 'of an ordinarily prudent man, in view of all the facts and circumstances surrounding
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.