Central of Georgia Railway Co. v. Windham

SIIARPE, J. The decision of this case does not call for the discussion of rights respecting the natural flow of water from dominant over -servient lands. The gravamen of the complaint lies in averments which are supported by evidence to effect that the defendant, in constructing its road-bed and depot grounds, made excavations, -ditches and culverts whereby surface rain water Avhi-ch otherwise Avould have run in a different direction, Avas conveyed to and allowed to overflow plaintiff’s lands to his damage, etc. Hpon the plainest principles, such subjection of the plaintiff’s lands to an unnatural and harmful servitude was a tort for [560] which the defendant was answerable.—Savannah etc. R. Co. v. Buford, 106 Ala. 303; Crabtree v. Baker, 75 Ala. 91 Nininger v. Norwood, 72 Ala. 277; Hughes v. Anderson, 68 Ala. 289; Polly v. McCall, 37 Ala. 20; Rychlicki v. St. Louis, 98 Mo. 497, 4 L. R. A. 594; Paddock v. Somes, 10 L. R. A. (Mo.) 254; Benson v. Chicago & A. R. R. Co., 78 Mo. 504; Rathke v. Gardner, 134 Mass. 14. In addition to actual damages recoverable in such a case punitive damages may be assessed if the wrong was vexatiously or wantonly done.—Hughes v. Anderson, supra. As a step towards proving a case for punitive damages it was competent to show knowledge on the part of defendant’s section foreman that plaintiff resided on the -overflowed land. Actual damages were allowable only for injuries sustained before the 'Commencement of the suit, but it was not error to allow evidence of continuing 'consequences by way of informing the jury of the original extent and character of the overflow.—Polly v. McCall, supra. Damages of which evidence was admitted were alleged in the complaint, and being within the issues the plaintiff was at liberty to prove them.—Reynolds v. Chynoweth, 68 Vt. 104; Onion v. Fullerton, 17 Vt. 359; Wheelock v. Wheelock, 5 Vt. 433. If too remote or inconsequential, action of the court should have been invoked to strike averments of them from the complaint or to instruct the jury against their allowance. Proof of the tendency of water to rot the house was not improper whatever might be said of its sufficiency. The foundation of the suit being the active creation of a nuisance, and not merely a wrong arising from negligence, the. degree of care used by the defendant in constructing water-ways is immaterial in determining the right to recover actual damages. The -defendant was liable for the direct consequences of its act whether resulting in the usual -or unusual course of events, and, therefore, the evidence sought to be elicited from the witness Dun, besides being merely cumulative, was immaterial unless to rebut evidence of malicious or wanton injury. The only evidence introduced directed to malice or wantonness was that tend561 ing to show tlm section foreman knew of plaintiff’s residence on the land. This in itself was insufficient to authorize a finding for punitive damages, and it not appearing that that question was submitted, to or passed on by the jury, it will not be presumed that the defendant was injured because the objection to the question addressed to Dun was sustained. No evidence was offered to show a way in which the plaintiff could have avoided the damages for which he sues, und charge 3 was, therefore, abstract. Under the principles we have stated the other charges were likewise properly refused. Let the judgment, be affirmed.