Yazoo & Mississippi Valley Railroad v. Davis, 73 Miss. 678

73 Miss. 678 | Miss. | 1896

Cooper, C. J.,

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 inflicted. In Railroad Co. v. Smith, 72 Miss., 677, we also held that, under some circumstances, a railroad company would not be liable to an adjoining owner for obstructing the flood waters of a stream, which were flowing in an unbroken current along .the course of the stream, and which would, ordinarily, under the rules of the common law, be considered and dealt with as a part of the stream.

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 when the waters of the river are at flood, they run eastward, through the bayous, to the creek.

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 said lands, flow in a westerly direction and empty into the Yalobusha river, which river flows in a southwesterly direction, but with a winding course, about two miles distant from their lands, said lands being about three or four miles distant from what is known as the ‘Hills,’ where the surface of the earth rises abruptly into hills of great elevations and dimensions; that there is a gradual slope in the earth’s surface westward from the foot of the hills to the Yalobusha river, and the usual and ordinary waters, passing through and near to the lands aforesaid from the east, found egress in a harmless course', by the two creeks, Big Sand and Teoc, into said river; that, in the rainy season, which annually occurs in the spring of the year, as well as at other times of heavy rainfalls, quantities of water rush down from the high lands, and, overflowing the two creeks, passed onto the adjacent low or overflowed lands, and were conveyed from off the lands of the plaintiffs by four streams or bayous, to wit: Sand bayou and a prong of Sand bayou, Stump bayou and a prong of Stump bayou.”

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 tresties has, to some extent, deepened the overflows from the surface water and the waters from Big Sand creek, where the Yalobusha river is low, and subjected to overflow on the whole body of the land, from thirty to one hundred acres, which, but for the roadway, might have been brought into cultivation; that no additional land is subject to overflow from the Yalobusha river, but that overflows from that river, as well as from the Big Sand, are somewhat prolonged in time when they do occur. There is no evidence that the road is improperly constructed, except as may be inferred from the foregoing facts; and there is nothing to show that to construct and maintain trestles would be as economical as to make the roadbed, or that, when constructed, they would form as safe or proper roadway. It is affirmatively shown that the trestles or bridges at the creek, and at all of the bayous except one, are of far greater capacity than the bayous and the creek, and it is not shown that any appreciable or ascertainable injury has re-suited from obstructing that bayou, the water flowing through that having been turned southward along the railroad, and emptying now into Stump bayou.

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 source of the plaintiffs’ injury, and it is not the law that the defendant was under the duty of so constructing- its roadway as to preserve the land of the plaintiffs from all injury by reason of water to which it would not have been subject in its natural state. The plaintiffs’ farm is so situated as to be subject to a sort of ebb and flow inundation — sometimes from the eastern waters of Big Sand creek, at others from the western waters of the Yalobusha river. Through this basin the company, either by contract or condemnation, obtained a right to locate its roadway. Power was conferred upon it by the legislature to build the road on condition only that, by contract or condemnation proceedings, it should compensate the owners whose property was to be taken. This it has done, and is the owner of the land, with the right to use it as such for the legitimate purposes for which it was secured. For all injuries flowing from the lawful and proper construction of its roadway, it has already paid.

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 were the plaintiffs, would inevitably, to some extent, obstruct the body of' vagrant water, composed of both overflow and surface water, to which, in a state of nature, the plaintiffs’ lands were subject. The roadway, except where it crosses the defined banks of the streams and bayous, is in no proper sense within a water course. The alluvial lands of the Yazoo and Mississippi Delta were all built up by the deposits from the rivers. In a state of nature it is all subject to overflow, and if the roads in that country are to be so constructed as to preserve the nearest possible approach to a natural condition of the waters, they must be placed upon trestles from one end of the valley to the other. We withdraw nothing of what we said in Sinai v. Railroad Co., 71 Miss., 547. A company having a right to construct its railroad may not, in disregard of the rights of adjoining proprietors, so construct its roadbed as to destroy the value of the lands of third persons, even though the injury be occasioned by turning back surface water upon such lands, if, with due regard to the duty it owes to the public, and in the reasonable use of its own property, and at no undue expense, it can, by putting in trestles, culverts, or other openings, provide a way through which such water may safely be allowed to escape. But that is not this case. On the contrary, to require the company to refrain from building its roadway by putting up embankments necessary to raise its line above the periodical floods, when large and numerous trestles are provided to give vent to the surrounding waters, would be to subordinate its rights of property to the unfounded demands of the adjoining owner, who has already received full compensation for the injury of which he complains.

The judgmént is reversed mid cause remanded.