Thompson v. Mobile, Jackson & Kansas City Railroad, 61 So. 596

Thompson v. Mobile, Jackson & Kansas City Railroad

61 So. 596 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

This suit was filed in the circuit court of Neshoba ■county by appellant for alleged damages to his land caused by the obstruction of the surface water, and also the obstruction of the flow of the streams draining his land, etc. The railroad company filed the general issue; *659and gave notice that they would rely upon the “act of God” in defense of the alleged damages.

The evidence shows indisputably that the land of appellant was overflowed, and that the overflow damaged the crops growing thereon, and there is testimony tending to show that a permanent damage to the land also followed from the water standing on the land for an unusual time. The evidence tends to show that the overflow was caused by an extraordinary and unusual rainstorm. The following instruction was given by the court at the request of the defendant railroad company: ‘ ‘ The court further charges the jury, for the defendant, that if the plaintiff has offered no evidence which will enable you with a reasonable certainty to ascertain what part of the damage was caused by an unusual and extraordinary act of God, if you should find that there was an unusual and extraordinary rainfall, then you will find for the defendant.” This instruction shifts the burden of proof to the plaintiff to disprove the affirmative plea of the defendant, and directs a verdict for defendant, if the plaintiff had failed to measure the damage caused by the rainstorm.

The following instruction was also given by the court at the request of defendant: “The court further charges the jury, for the defendant, that the railroad company was not bound to so construct its line across the said valley as in no way to materially interfere with the waters that run down the said valley and not in the bed or natural watercourse; but the defendant is only required to so maintain the said road as constructed across the said valley as not unreasonably or unnecessarily to interfere with the passage of the water in natural watercourses.” The first part of the instruction is too broad. The railroad company must provide for the natural flow of surface waters, if this can be done without undue expense, and without danger to the operation of the road.

We think that the latter part of this instruction was clearly erroneous. It appears from the evidence that *660the land in question was located in a valley, and that there were three different watercourses provided by nature to carry off the water falling in the watershed of this valley, which natural drains consisted of two wide and deep sloughs and one creek. The roadway of the railroad company was conducted across the bed of these xstreams upon trestles. The testimony tended to show that the railroad company, in the construction of its roadway, did not provide against the obstruction of the natural watercourses; and the instruction assumes that, although the jury might believe that the roadbed did obstruct the course of the natural watercourses, yet it would not be liable for any damages resulting from such failure, if the jury further believed from the evidence that the obstruction of the flow was not unreasonable. The instruction ignores the distinction between surface water and water flowing in natural channels.

In this state it has been held that the railroad must take care of the flow of the surface water, if to do s*o would not result in any danger to traffic, and if this could be done without incurring an additional expense out of all proportion to the injury of adjacent lands. From the necessities of the case, the courts adopted a rule with •regard to the flow of surface water applicable to railroads which would not apply to ordinary landowners. Sinai v. Railway Co., 71 Miss. 547, 14 South. 87. So far as the flow of water in natural courses is concerned the railroad company would be required to answer for any damage resulting from its obstruction of such watercourses, without reference to whether or not the obstruction was reasonable or unreasonable. In other words, the obstruction of a natural watercourse imposes upon the obstructor the obligation to answer for all damages flowing from such obstruction.

Reversed and remanded.