Yazoo & Miss. Valley Railroad v. Brown , 99 Miss. 88 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

The appellee, Brown, sued the appellant, the Yazoo & Mississippi Yalley Railroad Company, for damages ■claimed to have been sustained by him through the inundation of his land, caused by a dam built by the appellant to divert Foster’s creek from its new channel on ■appellant’s right of way to its old channel on the land of appellee. F'rom a judgment in favor of the appellee for five hundred dollars, appellant prosecutes this appeal.

Appellee’s land adjoins appellant’s railroad right of way. Until some time in the spring of 1908, Foster’s ■creek ran through appellee’s land in the same general direction of, and only a short distance from, the railroad, being nearer at some points than at others. Appellant’s road was constructed more than twenty years before the alleged injury complained of. In its construction, where it adjoins appellee’s land, the railroad track is laid on an embankment, or fill, which was made necessary on account of the land traversed being low. The building of this embankment necessitated excavations from the right of way on either side, leaving depressions. During an overflow in the spring of 1908', the waters of Foster’s creek left their old channel on appellee’s land, ■and broke over into the depression so made on the west side of appellant’s track, forming a new channel on its right of way, where it has since continued to flow. By the flow of its waters through this new channel, it soon began to cut into and undermine the embankment on which appellant’s track is located. For the purpose of •diverting the waters of this stream back into the old channel, the appellant, during the year 1908, built dams across it, which were washed away.' In 1909, by driving down piling, a dam was finally constructed, which stood for a while and forced the water into the old channel: The gravamen of appellee’s suit is that the appellant had no right to construct this dam, and divert the waters back to the old channel; that, if it had such a right, it could not be exercised, unless the appellant first cleaned out the bed of the old channel, which had, since, the creek changed its course, been filled up to some extent by the deposit of sand and gravel, causing the waters, when turned back, to wash and destroy his land. The appellant assigned as error the refusal of the court below to instruct the jury to return a verdict in its favor.

Where a stream has left its accustomed channel, and formed a new channel on the land of an adjoining riparian owner, the latter has the right, by the erection of barriers, to turn the waters of such stream back from the new to the old channel. The maxim, “Aqua currit et debet cúrrete, ut cúrrete solebat,” applies. The waters of a stream ought to run in its old channel, and no one can justly complain that one who has the right to have them so run makes them run there. Tuthill v. Scott, 43 Vt. 525, 5 Am. Rep. 301; Pierce v. Kinney, 59 Barb. (N. Y.) 56; Gould on Waters (3d Ed.), § 204. And the riparian owner, on whose land the new channel is formed, may erect barriers and turn the waters of such stream back from the new to the old channel, without being required first to clean out such old channel, so as to restore it to the depth and condition it was in before the stream changed its course. Pierce v. Kinney, supra. The reason is the change in the course of the stream is the fault of neither owner. It is from natural causes. It is true in this case the depressions along appellant’s roadbed, made in the construction of its road, in connection with the high waters of the creek, caused the stream to leave its old channel and form a new one. But this was not appellant’s fault. By condemnation of or deed to its right of way it acquired the right to make the necessary excavations to build its roadbed, and if in properly constructing such, roadbed it resulted in the creek leaving its old channel, still appellant had the right to turn it from its new back to its old channel.

It is contended by appellee that he acquired a right, by prescription, to have the creek flow in the new channel; that the excavations which, in connection with the overflow, caused the new channel, were made more than twenty years before the bringing of this suit. There is no foundation in fact for such contention, for the testimony, without conflict, shows that the creek never left its old channel until the spring of 1908.

Appellee has no cause of action. The court should have directed a verdict for the appellant.

Reversed and remanded.