Renner v. St. Louis, Iron Mountain & Southern Railway Co., 197 Ill. App. 11

Renner v. St. Louis, Iron Mountain & Southern Railway Co.

197 Ill. App. 11 | Ill. App. Ct. | 1915

Mr. Presiding Justice Higbee

delivered the opinion of the court.

5. Railroads, § 345*—when liable to tenant for damages due to failure to construct proper culverts. The general rule applicable to tenants who lease property with a knowledge of injury already done to the leased property does not apply where the injury is caused by the construction of a railroad which is controlled by clause 5 of section 19 of the Railroad Act (J. & A. If 8754), providing that “in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of. the land requires for the drainage thereof.” „ 6. Railroads, § 332*—when railroad liable for nuisance, without notice to remove. The rule that one who comes into possession either as grantee or lessee of land on which a nuisance exists cannot be held liable for damages caused thereby prior to notice, and a request to remove the nuisance has been changed by clause 5 of section 19 of the Railroad Act (J. & A. 8754), in so far as applicable to railroads constructed after the passage of the statute. 7. Railroads, § 328*—when must construct necessary culverts and sluices. Under clause 5 of section 19 of the Railroad Act (J. & A. jf 8754), the construction of all culverts and sluices necessary for the drainage of water naturally draining through the land covered by the right of way is a condition precedent to the construction of a railroad after the passage of the act, the statute in positive and express terms prohibiting the construction of the railroad until such requirement is complied with. 8. Railroads—when burden on to show grounds for failure to construct required culverts and sluices. In an action against a railroad to recover for injuries to land caused by the failure of defendant to construct culverts and sluices through its embankment as required by clause 5 of section 19 of the Railroad Act (J. & A. K 8754), the burden is on defendant, where the embankment in question was constructed since the passage of the statute, affirmatively to show facts in excuse of its failure to comply with the statute. 9. Railroads, § 342*—when successive actions maintainable for injury due to improper construction of. Under clause 5 of section 19 of the Railroad Act (J. & A. 8754), the duty of a railroad company to construct and maintain its road across a stream in such manner as not to injure the adjacent land by throwing water back upon it is a continuing one, and each overflow resulting from a neglect to perform the duty required by the statute creates a new cause of action for the injury to land and crops caused thereby. 10. Railroads, § 315*—when tenant may assume that obstruction of drainage will not be continued. A tenant who leases premises with knowledge of the defective construction of railroad embankments on such premises which tend to obstruct drainage from his land, may act upon the presumption that the nuisance occasioned thereby would not be continued and that the railroad company would perform the continuing duty imposed by clause 5 of section 19 of the Railroad Act (J. & A. 1f 8754), to construct such culverts and sluices through its embankments as are necessary to drain adjacent land. 11. Railroads, § 345*—when tenant from year to year may maintain action for injury to crops due to overflow. In an action by a tenant to recover for injury to his crops by reason of the overflow of water on his land due to the imperfect construction of openings through a railroad embankment through which the water drained from plaintiff’s land, held that plaintiff’s action was not barred although it appeared that plaintiff was a tenant from year to year and had renewed his lease with a knowledge of the imperfections in the embankment and that such imperfections might injure such crops by causing an overflow of water thereon. 12. Railroads, § 352*—when instruction in language of statute relative to construction.of culverts and sluices proper. In an action against a railroad corporation- to recover for injury to crops as a result of the failure of defendant to comply with clause 5 of section 19 of the Railroad Act (J. & A. t 8754), providing that “in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the drainage thereof,” an instruction which stated the requirements of the statute held proper. 13. Instructions, § 151*—when may be refused. Requested instructions may be refused where such instructions are covered by other given instructions. 14. Railroads, § 350*—when evidence sufficient to sustain verdict. In an action by a tenant against a railroad to recover for injury to crops due to overflow, evidence held sufficient to entitle plaintiff to recover. 15. Railroads, § 352*—when instruction as to liability of railroad although tenant knew of condition of culverts proper. In an action by a tenant against a railroad company for damages for injury to crops sustained as a result of overflow caused by insufficient culverts, an instruction as to the liability of defendant, although plaintiff knew before he leased the land that the creek frequently overflowed its banks and of the condition of the railroad embankment, approved. 16. Railroads, § 352*—when instruction as to duty of proper construction of road over watercourses being continuing one, and each overflow creating cause of action proper. In an action by a tenant against a railroad company for damages for injury to crops sustained as a result of overflow caused by insufficient culverts, an instruction that the duty of the railroad to so construct its road across a natural watercourse as not to injure adjacent property owners by overflow was a continuing one, and that each successive overflow due to such cause created a new cause of action, approved. 17. Railroads, § 352*—when instruction as to liability to owner or tenant for injury. due to overflow proper. In an action by a tenant against a railroad company for damages for injury to crops sustained as a result of overflow caused by insufficient culverts, an instruction that defendant was liable for injury necessarily sustained by owner or tenant even though construction of road over natural watercourse skilfully done, approved.