Stith v. L. & N. R. R.

Opinion op the cotjet by JUDGE PAYNTER Reversing. It is averred in the petition that the plaintiff is the owner of two houses and lots in or near Elizabethtown, Hardin county, adjoining the right of way of the defendant (appellee here); that they each have 106 feet front; that the défendant has an embankment in front of his property on its right of way, upon which its tracks are laid, which obstructs the natural flow of water from his and adjoining property; that the defendant has a culvert through its embankment, but it has carelessly, negligently, and wrongfully permitted it to become filled with mud and debris, so that water which flows from his and other property can not pass through it where it naturally should escape, and has carelessly, negligently, and wrongfully permitted it to remain in that condition; and that by reason thereof the flow 'of water is diverted from its natural [171] course of escape, and is forced upon the plaintiff’s property, near his dwelling house and stable, forming a pond, at times obstructing his free passage to and from his stable and dwelling, and at times becomes polluted, thus causing him great damage. Counsel earnestly discuss the question as to whether the rule of the civil or common law prevails in Kentucky with reference to surface water. The position of the appellee here is that the common-law rule prevails, insisting that under it the lower proprietor may improve his land, and may fox that purpose raise the surface, and is not liablé for damages caused by the consequent backing of surface water upon the adjoining proprietor; that this doctrine applies to a railroad; that it has the same right to make embankments upon its right of way for the purpose of laying its track thereon as the owner of a town lot has to raise the surface of his lot for the purpose of erecting a house thereon. So far as we are aware, this court has not in express terms said which rule prevails. A municipality can, under the right of eminent domain, condemn or acquire property for public streets and construct them under a charter and am ordinance. In Kemper v. City of Louisville, 14 Bush, 89, the street was laid off and constructed in accordance with the ordinance passed by the general council of the city of Louisville. On a certain lot water accumulated in such quantities as to create a small pond, and in a short time it was drained by a depression in the surface. To avoid such temporary inconveniences caused by the collection of the water, the owner elevated the lot above the natural surface, and was in the undisturbed use and enjoyment of the property at the time the street was constructed. In making that improvement a fill was thrown, across the natural drain, without sewer or culvert, so as to obstruct [172] the passage of the water; the result being that much of the lot was permanently covered with water, and the dwelling rendered almost uninhabitable. The city defended 'the action upon the ground that it had the right to construct the street and change the grade when it deemed it expedient, or the public good required it, and the owner of the lot was compelled to submit to such incidental damage resulting therefrom. The court ruled that the owner of the lot was entitled to recover upon the grounds that it was an invasion of his private rights, and was the taking of his private property for public uses, and it could not be done without compensation. The court made the case turn upon a constitutional right of the citizen. In this case the appellee had the right to acquire by purchase, gift, or condemnation) the right of way at the place where the injury isclaimed to have occurred. It had the same right to acquire the property and construct its right of way that a municipal corporation has to acquire land and construct a street. Each is done upon the ground that public necessity requires it. Before the present Constitution was adopted, this court, in Kemper v. City of Louisville, adjudged that, where the city constructed a street so as to close up the natural drainage of surface water, an action for damages could be maintained by the injured party. If a municipality, an arm of the State government, could mot construct a street, and stop the flow of surface water through its natural outlet, without becoming liable to the ow.ner of a lot upon which the water was backed thereby, certainly a railroad corporation can mot construct its road so as to produce the same kind of injury, and not be liable. Each, under the right of eminent domain, is authorized to take private property for public uses by making suitable compensation. The rule followed in the Kemper [173] Case is the same as that of the civil law, although the court does not give the rule of the civil law as a reason for so adjudging, but the Constitution of the State. If there was a question in Kentucky before the adoption of the present Constitution as to whether the civil or common law rule prevailed with reference to the disposition of surface water, it is no longer an open one. Section 242 of the present Constitution reads as follows: “Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid’before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. . . Independent of the Constitution, under the authority of the Kemper Case, if a railroad company constructs a fill, and in doing so interrupts the natural drainage of surface water, and in consequence of which it caused the surface water to flow over the land of the upper proprietor, it is guilty of an actionable wrong. Under the section of the Constitution quoted, it is perfectly clear that one whose lands are damaged, though not actually taken by a railroad corporation, can maintain an action for the injury. From the averments of the petition the appellee recognized that it was necessary that the surface water should pass along its natural outlet, and, to facilitate it, constructed a culvert. It permitted it t-o fill up so as not to carry the water off which accumulated at or near its mouth. If it was its duty, as we believe it was, to permit the water to flow through its natural outlet, then it was responsible for letting the culvert become filled up so as to prevent its outflow. The effect is [174] exactly the same as if the fill had been made without any culvert. The judgment is reversed for proceedings consistent with this 'opinion.