Sinai v. Louisville, New Orleans & Texas Railway Co.

Woods, J., delivered the opinion of the court. The cause of action of appellant is stated as follows, in-substance, in the'declaration: That Sinai was the owner and in possession of a valuable plantation in section 21, township 13, range 7, in Issaquena county, in this state, worth the sum of $20,000; that the plantation was in what is commonly known as the “Yazoo and Mississippi Delta,” where the lands are almost level, and the channels of the streams shallow and the flow of their waters sluggish, and the beds incapable of containing their contents in rainy seasons ; that the lands said to have been damaged in-this suit, lie between Deer creek and Mound bayou, on and near Otter bayou, Mound bayou being six miles west of Deer creek and two miles west of Otter bayou, and"all flowing on pai’allel lines in the same general southerly direction; that the three streams named are all natural water-courses, and that there is a gentle and gradual downward slope in the earth’s surface westward from the west bank of Deer creek, and a gradual downward slope eastward from the east bank of Mound bayou; that the lands on Otter bayou were good lands for agricultural purposes before the action of the appellee in — 551 — building the embankment complained of; that just south of and near to the plantation of appellant, the appellee built and constructed, from Deer creek to Mound bayou, an embankment of dirt and other material for a road-bed for a railroad'about four or five feet in height; .that this embankment, stretching across the slight depression of the surface of the earth between Deer creek and Mound bayou, collected, dammed and threw back on appellant’s plantation the rain waters and overflow waters from Otter bayou, which its banks could not hold in rainy seasons, which had theretofore been accustomed to flow, in their natural course, through and down the depression or swale between Deer creek and Otter bayou; that a great part of the rain water that falls on township) 13 north of appellant’s plantation, and a great part of the rain water that falls on township 14, lying north of township 13, all lying between Deer creek and Otter bayou, is gathered into small bayous, sloughs, depressions and a chain of natural lakes, and conducted to Otter bayou, and that these waters, united to that coming down in the channel of the bayou itself, cause the waters to overflow the banks of Otter bayou, and to flow out of the shallow bayous and depressions of Otter bayou to said embankment, where they are arrested, dammed and thrown back on said plantation, whereas, before said railroad embankment was erected, such overflow and rain waters were accustomed to pass harmlessly through the depressions and lowlands southward to that point, where they fell into Otter bayou lower down; that the said overflow and rain waters had no way of escape, except this southward way through said bayou and the depressions south of said railroad embankment, by which they were conducted into larger water-courses, and ultimately into the Mississippi river; that the lands embraced in, said plantation were in cultivation before and at the time said embankment was constructed; that appellee neglected to supply reasonable means of passing said overflow and other waters through said railway embankment, by reason whereof — 552 — said waters have been obstructed in their natural and customary flow, have been collected, dammed and thrown back, and said plantation covered with sands, trash and logs, and said waters made to remain on said plantation for an unusually long time, whereby the soil is covered, and .the value of the plantation diminished to the amount of $10,000; that appellee might have prevented all the injury complained of by putting a trestle no higher than said embankment for a short distance, and that said trestle would have been as good, safe and cheap for the railroad as the said embankment, and that appellee was aware of all these things before it built its said road-bed. To this declaration the railway company interposed its demurrer, averring its non-liahility for obstructing the flow of surface water, and, the court sustaining the demurrer, the appellant comes to this court. The question presented'is resolvable by the application of common law principles to new and changed conditions. At the ancient common law every land-owner fought and fenced against surface water as suited his necessities. It was a common enemy, which the land-holder dealt with according to his own pleasure, for his own protection. But this strict rule had its origin when the soil was used for agricultural purposes. In that primeval day of the law’s birth and growth, a railway corporation as a land-owner was undreamed of. Now, with a net-work of railway lands spread all over, the face of the country, we are called to deal, in the application of legal principles, with a condition of affairs not thought of when every man fought surface water to suit his own fancy. Still, then, as now, the rule was that each must so use his own as not to do unnecessary harm to another. Each proprietor has the right to the use and possession of his own soil; each has equality of proprietary rights, and upon each is imposed in organized society, regulated by law, resting on mutual concession, reciprocal duties and correlative obligations. No one, natural or artificial, has the absolute dominion — 553 — and unlimited control of his own lands. Blending these harmonious rules of the common law, and adopting them in their flexibility to the new order of sqciety, we shall do no .violence to either while we apply both to the case in hand. A railway corporation is an artificial being, created by the state for the public good. To this end, the artificial creation is clothed with great privileges and. powers. It may, and generally does, exercise one of the attributes'of sovereignty— to wit, the right of eminent domain. This is wisely permitted to subserve the general welfare — the public, all the, individual members of society, being supposed to be interested in and to be benefited by the attainments of the ends for which the railway corporation is created. Brit, in the use and exercise of its privileges- and powers, we must not assume that the state designed to disturb well-settled, general legal principles, and to absolve its creation from the observance of the same rules of conduct as apply to and govern the natural person. The railway corpoi’ation must not recklessly and wilfully use its powers to the injury of the citizen. It must use its privileges in such manner as may be necessary to meet the objects of its creation; but it must do so with reasonable care and skill. It may, by proper expropriation proceedings, take private property for its public use, but it must first make compensation to the owner despoiled, and. the owner, as well as any other citizens affected by its construction, has a right to insist that future evils, foreseen as likely to follow a particular method of exercising the powers granted the railway corporation, shall be guarded against, if the same can be conveniently and reasonably done, regal’d being had to the interests of the corporation as well as of the individual citizen. If in the execution of chartered rights it shall become necessary to do a particular act in a particular manner, it may safely do so, though evil may result to others; but if the same act may as well be done for .the railway’s interests in another way, and without hurt to others, reason and justice will require the adoption of the non-hurtful method of exe — 554 — outing its powers. The execution of its rights in a particular method foreseen to be fraught with peril and injury to others, when another method, equally safe, convenient and useful, is rejected, will subject the corporation to the imputation of wilful negligence. With railway corporations as with natural persons employed in the same or like work, it must be true that unnecessary and wanton injury may not be done one by another in the use and enjoyment of his proprietary rights. The rule possessing flexibility and adaptability to all conditions likely to arise, is that which guards the right of the land-owner to deal with his own as he will, qualified by the duty imposed upon him to so use his own as not to hurt his neighbor, if that be reasonably within his power." In the case at bar, to reach a right conclusion, we must consider the character and value of construction or embankment; the likely to be foreseen interference with the usual flow of the waters in. a region marked with the striking configuration of the Delta, as appears by the averments of the declaration; the exlent and amount of the injury done to adjacent land-owners compared with the cost and value of the embankment, and whether any other method of construction, equally safe, convenient and inexpensive might have been adopted. According to the averments of the declaration, injury to the extent of $10,000 has been done the plantation, when, the evil being easily foreseen, another method of construction, as cheap, as safe, as convenient, was open to the railway company when engaged in the construction of its line. The demurrer should have been overruled, and the railway company required to answer the case thus made against it. This view is perfectly in accord with that of Lawrence v. Railway Co., 71 Eng. Com. Law R., 643, as well as the following American cases : Shane v. Railroad Co., 71 Mo., 237; Thompson v. Androscoggin Co., 54 N. H., 545; Gilbert v. Savannah, etc., Railroad, 69 Ga., 396; Trustees v. Spears, 16 Ind., 441; Livingston v. McDonald, 21 Iowa, 160; Gillham v. Railroad — 555 — Co., 49 Ill., 484; Waterman v. Railroad Co., 30 Vt., 610 ; Pflegar v. Railroad Co., 28 Minn., 510; Little Rock & Ft. Smith Railway v. Chapman, 39 Ark., 463. Reversed and remanded.