73 Miss. 678 | Miss. | 1896
delivered the opinion of the court.
In Sinai v. Railroad Co., 71 Miss., 547, we held that, under circumstances, a railroad company, whose roadbed obstructed surface water, and threw it back upon the lands of an adjoining owner, would be liable to him for the damages thereby
We need not state the facts of those cases, nor repeat at length what was therein said of the legal principles on which the decisions rest.
In the present appeal the facts are substantially these: The appellees own a tract of land near the junction of Big Sand creek and Yalobusha river; the river flows from the northeast to the southwest, and the general course of the appellant’s road is parallel with the river, and from a mile to a mile and a half east thereof; Big Sand creek comes in from the southeast, flowing to the northwest, until near the appellees’, land, when it is turned to the northeast, and, after passing a mile or more in that direction, turns to the north, and then, running nearly west, empties into the river; after leaving the lands of appellees, and before reaching the river, Big Sand creek receives the waters of Teoc creek, a stream flowing from southeast to northwest. In the irregular parallelogram, between the river and the creek, the roadbed of the defendant runs, at a distance of a mile or more from the river, and of a half mile, more or less, from the creek. Running out from the Big Sand creek, and in the direction of the river at its nearest points, are several bayous, with clearly defined, but' not deep, channels. These bayous continue as such beyond the line of the railroad, and some of them — possibly all — lose their character, and are merged into the basin east of the river. When the waters of the creek are high and those of the river are low, the waters from the creek and the overflowing waters and surface waters, run down through these bayous to or towards the river; but
This was the condition of things before the railroad was built, and from this it appears that the lands of the plaintiffs, situated between the creek and the river, are in a sort of basin, which have, to a greater or less degree, been always subject to overflow, the waters of the Big Sand creek overflowing them from east to west, when the river was low and the creek high, and the waters from the river overflowing them from west to east when the river was at flood. East of the creek are other lands of the plaintiffs, and damages in this action are sought for injury done to the lands both east and west of the creek.
When the railroad vfas constructed, in the year 1886, much of it, for the first mile or two south of the point where it crossed Big Sand cre^k, was built upon trestles. In the year 1892 the company filled up a large portion of these trestles with earth, forming, where filled, a solid roadbed, but, as appears from a map used on the trial of the cause and made a part of this record, there yet .remain about eighteen hundred feet of trestle work (including the bridge of three hundred feet across the Big Sand) from the point where the road crosses the creek to the first bayou south of and adjoining plaintiffs’ land, and of these trestles, nearly a thousand feet are over the bayous and along the low lands of the plaintiffs’ farm.
The plaintiffs allege that their ‘ ‘ said lands are situated in what is known as the Yazoo and Mississippi delta, and are almost level; that there are occasional elevations into' ridges of slight elevation, and occasional depressions of slight extent, which latter, at certain seasons, overflowed; that the streams passing through and near to said lands are very shallow, and their waters flow sluggishly; that the beds and banks of the streams are incapable of containing the waters in the rainy seasons, but they are bordered by low or overflowed lands, which, at such times, assist in carrying off the excess; that all of the small streams, bayous, sloughs and creeks draining the
The declaration further alleges that, when the railroad was built, trestles of sufficient sizes were left for the passage of the waters, but that the defendant, without due regard to the rights of the plaintiff, in the year 1892, filled up a large part of the trestles, obstructed the bayous, and left insufficient escape for the waters, thus throwing them back upon plaintiffs’ lands, increasing the depth of water upon the lands that were accustomed to overflow, overflowing other lands, and materially prolonging the period for which the overflows remained on the lands.
Stating the case as proved most favorably for the plaintiffs, it may be said that their property consists of what is known as “low lands,” subject to overflow in great part by ordinary floods, with a few ridges of not great extent, parts of which were above ordinary overflows, and possibly a small part not subject to overflow even in exceptionally high water;, that the construction of the road, and the filling in of the tres
The peremptory instruction prayed by the defendant was properly refused, for the reason that whether this obstructed bayou was a water course was, under the evidence, a question for the jury; and, if it was, the defendant was liable to the plaintiffs for such injury as they sustained by its obstruction, and, if no injury could be proved, to nominal damages. Chapman v. Copeland, 55 Miss., 476. In all other respects the course of the trial — the instructions given and refused — proceeded along radically erroneous lines.
The fundamental error which colored and controlled the whole case was that the defendant company was under the duty of so constructing its roadway as to afford exit for all except 1 £ unprecedented ’5 overflows, and in treating the filling of its trestles on the low lands as obstructions of a water course. Nature failed to afford sufficient exits for the waters which are the
In condemnation proceedings all special damages, present and prospective, to the owners of land, resulting or to result from properly constructing and maintaining its road, constitute, as to such owner, a single indivisible cause of action, and it is conclusively presumed that the commissioners, in making their award in cases of condemnation, have considered and awarded damages for all such injuries; and, if the way has been secured by contract with the owner, that he has demanded and received full compensation therefor. And if it may reasonably be supposed that a proper construction of the road will subject adjoining land to overflow, or obstruct its drainage, such damages should be estimated and allowed for. Sullivan v. Supervisors, 58 Miss., 790; Commissioners v. Harkleroads, 62 Miss., 807; Richardson v. Levee Commissioners, 68 Miss., 539; Railway Co. v. Wachter, 123 Ill., 440; Barnes v. Railway Co., 65 Mich., 251; Bell v. Railway Co., 101 N. C., 21; Moss v. Railway Co., 85 Mo., 86.
It is evident that, to construct a road on lands situated as
The judgmént is reversed mid cause remanded.