24 Ky.L.Rptr. 2375
Court of Appeals of Kentucky.
May 6, 1903.
ACTION: Reversed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Matilda Childers against the Louisville & Nashville Railroad Company.
From a judgment for defendant, plaintiff appeals.

The appellant owns land at the end of one of the appellee's tunnels. The appellee, for the consideration of $55, in 1886, purchased the right of way over the land of the appellant, and about that time constructed the tunnel. When the tunnel was first built, the approaches to it for some distance next to the premises of the appellant were supported by timbers, and by reason of which a narrower cut was necessary to the approach of the tunnel. In 1896 the timbers decayed, and the appellee removed them, and sloped the sides of the cut, so that the distance from bottom to the top of the slope is from 150 to 200 feet. Ditches were cut along the track so as to carry away the surface water which was precipitated upon the track by the sides of the cut. The plaintiff's house is situated just below the track. Previous to the removal of the timbers, and sloping of the sides to the cut, the surface water was not discharged upon the land of the appellant so as to injure it in any way. Afterwards the surface water was carried upon her premises in such a way as to destroy her spring and render uninhabitable her residence. This action was brought to recover damages for that injury. The court gave peremptory instructions to find for the defendant. The question here is, did the court, in doing this, err?

The testimony offered in behalf of the plaintiff tends to show that her premises were not injured by surface water until the change in the cut which we have described; that it cut great gullies in her premises, that had practically destroyed her spring; that on one occasion, after a heavy rain, water was thrown upon her premises so as to carry away her shed and smokehouse; that her fences were carried away thereby. The plaintiff testified that the water ran in her spring every time it rained, and that she has been forced to abandon her house by reason of the water that has been cast upon her premises on account of the change in the tunnel and the construction of the ditches. The plaintiff also testified that, in her opinion, some of the water which formerly flowed through the other end of the tunnel, now, by reason of the ditches which had been dug, was brought toward her premises, and thrown upon them.

It is urged that, because the plaintiff had conveyed to the appellee the right of way, it had the right to construct the road in the manner in which it was, and if, in consequence of that, the plaintiff's property was injured, she is not entitled to recover. This contention is answered in Louisville & Nashville R. Go. v. Brinton (Ky.) 58 S. W. 604, wherein the court said: "The deed is one which simply purports to convey the right of way to the appellant. There is nothing in it which gives the appellant the right to make an unlawful use of property conveyed by it. The vendor had the right to rely upon the fact that the railroad would be constructed so as not to damage him by its wrongful act. It did not confer upon the appellant the right to accumulate water and discharge it in an artificial channel on the remaining part of his land, and thus produce a serious damage. No such damage was in the contemplation of the parties at the time the deed was executed. Neither does it relinquish a claim for damages for such an act." In that case the court quoted with approval Gould on Waters, wherein it said: "An owner of land has no right to rid his land of surface water, or superficially percolating water, by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor. This is alike the rule of the common and civil law. ***" It certainly was not in the contemplation of the parties when the right of way was granted that the appellee had the right to construct its road so as to cast surface water upon the grantor's premises so as to practically destroy them. Its reasonable and proper use of the right of way does not allow it to construct its railroad so as to produce the effect which the plaintiff's testimony tended to prove in this case. The court below seemed to be of the opinion that all the damage had been produced by the excessive rain on one occasion, which resulted in the carrying away of the shed and smokehouse, and for that reason the plaintiff was not entitled to recover. If the injury complained of was the result of a cloudburst or excessive rain, and the manner of the construction of the approach to the tunnel did not contribute to the injury of the plaintiff, then, of course, the appellee has no responsibility for the injury resulting on that particular occasion. This is a question for the jury. Besides, the testimony tended to show that every time it rained the water was discharged upon the plaintiff's premises to her damage. In our opinion, the case should have gone to the jury.

The judgment is reversed for proceedings consistent with this opinion.

Ky.App. 1903.
74 S.W. 241, 24 Ky.L.Rptr. 2375


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