138 Ky. 257 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
Appellee recovered of appellant in the court below a verdict and judgment for &500 damages, resulting from the flooding of his land, and injury to. certain crops produced and growing thereon, caused,
We think it reasonably apparent from the evidence as a whole that if appellant had left the branch open, and provided a culvert at each of the two places where it is crossed by its roadbed, the branch and Greasy creek would have continued to carry off the water from appellee’s land, and thereby prevented the injury to his crops complained of, but by filling the branch the water which had been wont to flow from appellee’s land into its bed, and that which had been accustomed to temporarily back into it from Greasy creek when that stream overflowed its banks, was by the obstruction afforded by the bed of the railroad which constituted a fill along the entire north boundary to appellee’s land, forced and backed upon his land in such unusual quantities as to inundate it and overflow his crops. It likewise appears from some of the evidence that appellant further added to the increased flow of the water upon appellee’s land by leaving unfilled that part of the branch south of its railroad and opening a ditch on the south side of its railroad from the mouth of the branch and Greasy creek at the northeast corner of appellee’s land, to a point beyond the west line of his land; in doing which a part of the west bank of the creek, at figure 4” on the map, was removed or lowered to such an extent as to cause much of the water when the creek was high to leave its bed and channel, and run into ■the branch and ditch on the south side of the railroad,
In Pickerill v. City of Louisville, 125 Ky. 213, 100 S. W. 837, 20 Ky. Law Rep. 1239, a case much like the one before us, it was said: “This court has in. effect, though not in express terms, adopted, in respect to such cases as this, the rule of the civil law, which only subjects the lower estate to the easement or servitude óf receiving the natural flow of surface water from the upper estate. That is to say, the doctrine seems to be that where two estates join, and one is lower than the other, the lower must necessarily be subject to the natural flow of surface water from the upper one; if this proves to be an inconvenience, it arises only from the position of the lower estate, and in the nature of the case is 'unavoidable. • Therefore the owner of the lower ground has no right to erect embankments, or create other obstructions, whereby the natural flow of the surface water from the upper ground is stopped- or caused to back upon and overflow the upper ground. On the other hand, the owner of the upper ground has no right to make excavations, barriers, or drains upon his ground'by which the flow of surface water is diverted from its natural channel, and a new channel made on the lower ground, nor can he collect into one channel waters usually flowing off into his neighbor’s land by several channels,
The greater part of appellant’s evidence was directed to showing that appellee’s land was subject to overflow, or at any rate standing water, before the construction of its railroad, and that by ditching his land or erecting on the bank of Greasy creek, near its railroad, an embankment or levee, he might have prevented its overflow, or at least have lessened the injury to his crops, and thereby minimized his damages. While it is true some of appellee’s land was wet land, and for that reason more liable to injury from overflow of water in greater quantity than was natural or usual, it was not, according to the evidence, so wet as to interfere with its profitable cultivation, until the wrongful acts of appellant complained of caused its overflow; and if, as alleged in the petition and in large measure shown by the evidence, appellant, by negligently diverting the water from its natural and customary channels, or by obstructing its natural and usual course, caused it to overflow in greater and unusual quantity upon appellee’s land than was its wont, and to the injury of his crops, it does not lie in its mouth to complain that appellee did not minimize his damages. Indeed, he was under no duty to relieve appellant of the consequences of its negligence, and could have done nothing in the matter of minimizing his damages, that would have been so effectual as the restoration by appellant of the natural channels by which his land was drained and its overflow prevented, before they were closed or changed by appellant.
If the evidence had shown that the damages sustained by appellee from the overflowing of his land were inconsequential, or that he might at slight ex
Appellant’s objections to the instructions are not well founded. The four instructions given read as follows:
“(1) The court instructs the jury that if they believe from the evidence that the defendant at the time complained of in the petition herein built and constructed its roadbed on the north side of plaintiff’s land therein described, and thereby negligently, unlawfully, or without right filled or obstructed or diverted the channel of Greasy creek, or the branch running along the north side of plaintiff’s land, and thereby unlawfully and negligently diverted the flow of waters running in said creek or branch from their natural course, and caused them to overflow the plaintiff’s said land, and by reason thereof the plaintiff’s crops, or any portion thereof which were being cultivated by him during the years 1907 and 1908, were flooded, destroyed, or injured by ordinary rainfalls, then the jury should find for the plaintiff, provided they believed from the evidence that the said branch was at the time of the diversion of the waters therefrom, if there was such diversion, a natural water course, and in assessing the plaintiff’s damages, if any they should find, they will be governed by instruction No. 2.
“ (2) If the jury find their verdict for the plaintiff, they will award him such sum in damages as will rea
“(3) The defendant cannot be held responsible for any injury or damage to his crop or crops caused by extraordinary floods or overflows.
“(4) By the term ‘negligence,’ as used in these instructions, is meant the failure to exercise ordinary care, and ordinary care is that degree of care which an ordinhrily prudent person will usually exercise under the same or similar circumstances.”
Instruction No. 1 is predicated upon the cause of action stated in the petition, and is, we think, in proper form. It is insisted, however, that instruction 2 does not correctly give the measure of damages. The only damage asked in'the petition, or shown by the evidence, was for injury to appellee’s crops; the instruction confined the recovery, if any damages should be allowed, to reasonable compensation for the diminution in value to the crops, giving the limit in amount to each crop, and the limit as to the whole. Manifestly this was a substantially correct statement
We do not understand that instructions 3 and 4 are objected to; they are, however, substantially correct. We do not think the court erred in refusing the instructions asked by appellant, as those given contained the whole law of the case, and, when this is so, unnecessary instructions, however correct, are calculated to confuse or mislead the jury.
Judgment affirmed.