Ohio & Mississippi Railway Co. v. Elliott

Phillips, J. Appellant claims that appellee can not recover, he having acquired his interest in the land with full knowledge of the liability to overflow, and having planted his crops with that knowledge. For that injury, caused by the flooding of lands by the negligence or want of skill of the railroad company in constructing, maintaining or operating its road, it can not be held that proceedings by condemnation authorized an improper construction, maintaining or operation of the road. FTeither can it be held, where damage results from such improper construction, maintaining or operation of the road, that a grantee taking the land where the road - is so improperly constructed, maintained or operated, with full knowledge of such defects, may not recover for an injury consequent on such improper construction and maintenance. O. & M. Ry. Co. v. Wachter, 123 Ill. 440. In this case, the construction of the embankment in 1868, so as to fill the trestle with a solid embankment that prevented the flow of the water, where, in times of high water, it had formerly flowed, was an obstruction to the natural flow of the water; and when, in consequence of that obstruction, the surface of the land on the north side of the road, and the bed of the stream, were raised until the level of the land was almost equal to the level of the road-bed, that, to prevent the water from again flowing in the direction it did before the tilling of the trestle, the railroad company raised its road-bed and constructed an embankment to prevent that natural flow, is such an injury, that where the same caused the flooding of appellee’s land, he may have his action therefor. The statute of limitations did not bar this action. The evidence shows that although the trestle was filled and a solid embankment made about 1868, and the injury sued for was done in 1888, yet within five years of the time the injury complained of resulted, the embankment was raised and a dam constructed to prevent the water from passing in the direction it formerly and naturally flowed in, flowing over the road-bed where the trestle had formerly been. The deposits on the north side of the road having raised the land on that side until it was almost as high as the road-bed, in time of high water the water would flow over the road until again obstructed by increasing the height of the bed and the erection of a dam along the same to prevent that flow of the water. There was here no prescriptive right. The prescriptive right of appellant to maintain the embankment at existing height is a right that can not be extended by the act of appellant unless acquiesced in for a necessary time, and does not authorize the railroad company to increase the height of its embankment from time to time to purposely obstruct the natural flow of the water. Its prescriptive right is a right to maintain its embankment as originally constructed and on the presumption of a grant to flood lauds to the extent that lands would be flooded by so maintaining the embankment at such original height. There is no right to increase the height of the embankment to prevent the natural flow of the water in a natural direction, and claim such increased height as a prescriptive right, until the full term has run from the time of such increased height to give a prescriptive right. By increasing the height of the embankment within two years there was no prescriptive right to flow appellee’s land. By increasing the height of the road-bed and constructing the dam the water on appellee’s land was increased in quantity. To the extent the flowage was so increased it was unauthorized and was an injury for which appellee was entitled to recover, not barred by the statute of limitations. But to place the question as to the statute of limitations on another principle of law, it was said by the Supreme Court of Illinois, in the O. & M. Ry. Co. v. Wachter, supra: “ The proposition as formulated is: 6 The injury caused by the construction of an insufficient culvert in a railroad embankment is immediate and permanent, giving rise to but one cause of action.’ * * * The statement is not accurate as an abstract proposition, and even if it were, it is but in part applicable to the facts of the case, and is inconsistent with the theory upon which it was tried by both parties; considered as a general proposition it should at least be limited to the case of a railroad, built under authority of law, and in a reasonably proper and skillful manner, so as to avoid the infliction of all loss and injury not necessarily resulting from thus building and operating the road. The proposition as formulated, assumes that a railroad company has the right to construct and operate its road just as it pleases, without regard to whether the method adopted is sanctioned by good railroading or not; that it may build indifferent culverts or none at all over drains and streams on the line of its road, and by thus disregarding the ordinary rules observed in such cases, inundate and overflow in times of freshets large bodies of land and other property without incurring any other or different liability, except as to extent of damage, than of a company which, under like circumstances, has constructed its road-bed and culverts in streetin conformity with the well recognized and approved methods of railroad building. We do not concur in this view.” That case is conclusive of the question here presented by the statnte of limitations, as here a well defined place, where the water naturally flowed in times of high water, is obstructed, with no outlet left for the water to escape. It can not be held, therefore, that the facts show a state of case barred by the statute of limitations. The appellee was not to assume that the road so improperly constructed would be maintained in that manner. It is further insisted that the case made by the evidence is not the one stated in the declaration, as that the backwater was not caused by filling the trestle,- but by deposits which had filled and raised the ground north of the railroad track. We fail to see how the distinction may he taken between the flooding being caused by the filling of the trestle, and the filling of the trestle causing drift to be deposited, which raised the level of the land on the north of the road, thereby causing the flooding of the land. The filling of the trestle was the primary cause of the flowage. The jury was properly instructed and the special findings are not inconsistent with the general verdict. The judgment is affirmed. Judgment affirmed.