123 Ark. 1 | Ark. | 1916
The plaintiff, J. M. Jackson, instituted this action in the circuit court of Phillips County against the two defendant railway corporations to re- ■ cover damages alleged to have ¡been sustained to -his real property in the City of Helena on account of the raising of an embankment which changed the flow 'of the water and caused it to flow to and accumulate on plaintiff’s said property. One of the defendant companies is an Arkansas corporation, which holds the franchise, and the other is a foreign corporation operating the railroad along the line. No question is raised in the suit about misjoinder of the defendants or as to which one of the defendants is liable for the alleged injury, if there is any liability at all.
The real property alleged to have been injured consists of two lots on which there are three .store houses fronting east on Natchez street, at the southwest corner of Natchez and Missouri streets. Natchez street runs north and south and is sixty feet wide, the railroad operated by the defendants running along the east side of that street. The center of the track is ten feet west of the east line of the street. Originally the track was about on a level with the grade of the street, and, according to the testimony adduced by the plaintiff, there was a ditch running along the west side of the track at the end of the ties which carried a considerable quantity of water down the track to the next street on the south, Arkansas street, where it was taken care of without injury to adjacent property. In the year 1913, the defendants were compelled, on account of the raising of the track of another intersecting railroad, to raise this track about two or two and a half feet, and in doing so the embankment was sloped off from the west side of the track to about the center or crown of the street. The ditch just spoken of was, according to the testimony of the plaintiff, completely obliterated by the raising of the dump, .and no other means were provided for taking care of the additional water which was thrown over into the gutter on the west side of the street.
The theory of the plaintiff is that the additional water thrown over into the gutter overtaxed its 'capacity and could not be taken care of, and that when it rained the surplus water rose above the curb and ran under the plaintiff’s store houses. It is uncontradicted that the flow of the water was from east .to west — that the water came from the levee east of Natchez street and flowed over the railroad track, and that when the ditch was filled up there was nothing to prevent it from flowing on to the gutter and on the west side of Natchez street. The plaintiff alleged in his complaint that he was the owner of the property and the answer of the defendants contains a denial of that allegation. It is also denied in the answer that there was any ditch along the edge of the railroad track, and denied that the raising of the embankment caused any additional flow of water. Plaintiff alleged that permanent injury to the property was inflicted by the raising of the embankment and the digging of the ditch, which depreciated the value of 'the property, and the jury awarded damages for such permanent injury in the sum of $2,500. Defendants have appealed.
It is earnestly insisted that the testimony fails to make out a case of liability against the defendants, but after careful consideration of, the evidence we conclude that if the testimony be accepted in its light most favorable to the plaintiff’s cause of action there is enough to submit to the jury on the issue as to whether or not the injury was caused by the act of the defendants in raising the embankment and filling the ditch. There is a sharp conflict in the testimony as to whether or not there was any ditch there at all, but that conflict must be treated as settled in plaintiff’s favor by the verdict of the jury. There is also a sharp conflict in the testimony as to whether or not the surface Water rose above the curb and flowed on to plaintiff’s property — there being testimony adduced by the defendants which tends to show that there was not sufficient water from the heaviest rains to rise above the curb; but that issue, too, must be treated as settled by the verdict.
The argument is made, also, that it was surface water that flowed over towards plaintiff’s adjacent property, and also that the ditch was not a natural drainway, and that for those reasons the defendants are not liable. It is asserted that the defendant railroad companies had the same right as any other property owner to defend against surface water, and that upon that theory there could be no liability. The defendants invoke the doctrine announced by this and many other courts that surface water is a common enemy which any land owner may defend against with such measures as he may deem expedient, without laying himself liable to any other owner upon which the water is caused to flow. Levy v. Nash, 87 Ark. 41; McCoy v. Board of Directors of Plum Bayou Levee Dist., 95 Ark. 345.
The following instruction, requested by defendants,, was refused:
“V. The court instructs the jury that the defendant railroad company has no control over any part of the street adjoining the premises mentioned in the complaint, except that portion actually occupied by its roadbed and that any damages resulting from any defect in the drainage of surface water on or along said street caused by the failure of the officers of the city of Helena to use reasonable care in the maintenance and repair of the said street are not chargeable to this defendant and this defendant is not liable for any part thereof.”
Of course, the property owner is required to do whatever is reasonably necessarydo protect his property from injury, and can not permit the injury to occur and then claim full damages when he might have prevented it or lessened its effect by a reasonable expenditure. That question, however, is not raised on the present appeal, and we need not discuss it further, for it is sufficient to say that the rule announced in the instruction just referred to is not correct.
"We think that instruction should have been given. The testimony introduced by defendants tended to show that the flow of water was not sufficient to qverflow the gutter, and that if the water rose above the curbing and flowed under the store houses of plaintiff it was caused solely by the fact that the gutters were allowed to fill up with trash and were not cleaned out. The defendants were entitled to have that issue submitted to the jury, because if the gutters, as they existed at the time the embankment was raised, were sufficient to take care of the water, the defendants would not be rendered liable by the fact that they were subsequently allowed to fill up so as to incapacitate them from taking care of the water. There was an issue on that subject which should have been submitted to the jury, and we think that the court erred in refusing to do so.
The defendants in their answer denied the plaintiff’s ownership of the property in question, and they undertook to raise that question by requested instructions which the court refused. The testimony is undisputed on the question of ownership, but there is a conflict as to the time the embankment, was raised so as to inflict a permanent injury to the property. The property was originally owned by plaintiff’s grandfather, Mr. John P. Moore, who died in September, 1913, leaving his last will and testament whereby he devised the property in question to the plaintiff and seven other persons. The property was held by the devisees as tenants in common, plaintiff being the owner of an undivided eighth, until there was a partition of the lands of the estate in September, 1914, when this particular property fell to plaintiff in the division.
The testimony introduced by the plaintiff tends to show that the embankment was raised so as to cause the injury in October, 1913, which was after the death of Mr. Moore, the devisor. Defendant’s testimony tends to show that the embankment was raised during Mr. Moore’s lifetime. It was admitted that certain work was done as late as October, 1913, b.ut that this merely applied to raising’ one of the crossings and that the work of raising the embankment along the street was done some time prior to Mr. Moore’s death. The state of the testimony is that there is a conflict whether the embankment which caused • the injury was constructed before the death of Mr. Moore, but it is undisputed that it was completed before the plaintiff became the sole owner of the property.
This instruction was correct in any view of the case, and the court erred in refusing to give it. There is no controversy about the injury being a permanent one, if there was any injury caused by the defendants at all. In fact, the plaintiff brought Ms suit upon the theory that the injury was a permanent one, and made no attempt to establish any other kind of injury. There was no effort to prove that there had (been loss of rents or any other temporary injury by reason of the construction of the embankment. The measure of damages sought to be established, and which the court submitted to the jury, was the permanent depreciation of the value of the property by reason of the additional water which flowed from the street.
Now, if the injury occurred during the lifetime of Mr. Moore, the devisor, the right of action therefor did not descend to his heirs or 'devisees, but survived to his personal representatives, the executor or administrator. The law on that subject is very well settled. In Railway v. Greer, supra, we said: “The cause of action accrues when the damage is done, and accrues to the one who is the owner of the land at the time of the construction which causes the injury or damage.” To the same effect see Brown v. Arkansas Central Ry. Co., 72 Ark. 456; Illinois Cent. Ry. Co. v. Allen, 39 Ill. 205; Toledo, Wabash & West. Ry Co. v. Morgan, 72 Ill. 155; Roberts v. Northern Pacific Rd. Co., 158 U. S. 1; McFadden v. Johnson, 72 Penn. 336.
In Moore v. City of Boston, 62 Mass. 274, it was expressly decided that a right of action of a land owner against the city for property taken for public use survives to his executor or administrator, and not to the heirs.
Defendants attempted to raise the further question of the right of the plaintiff to recover for the whole damage, even though the injury occurred after the death of Mr. Moore and while plaintiff and the other devisees held the property as tenants in common.
Instruction No. 4, which reads as follows, was refused: “IV. The court instructs the jury that if it finds from the testimony that the plaintiff was the owner of the property mentioned in the complaint at the time of the commission of the said acts of negligence jointly with other owners as tenants in common then you will find for the plaintiff only .such pro rata part of the damages sustained by the property through the negligent acts of the defendant as his interest in the property bears to the whole interest in the property.”
The judgment must be reversed for the errors indicated, and the cause will be remanded for a new trial.