Yazoo & M. V. R. v. Sultan , 106 Miss. 373 ( 1913 )

Reed, J.,

delivered tlie opinion of the court.

This is an action brought by B. I. Sultan against the Yazoo & Mississippi Valley Bailroad Company to recover damages to crops caused by the obstruction of surface water. Mr. Sultan was the lessee for a term of three years of certain land in Bolivar county, situated along the line of the Yazoo & Mississippi Valley Bailroad, and between the right of way of the railroad and Jones Bayou.

It appears that the roadbed or embankment of the railroad caused an obstruction in the flow of the surface water, so that something over six acres of the land leased and cultivated by Mr. Sultan was overflowed, and the crops thereon were totally destroyed in the year 1909, and almost entirely destroyed in 1910. He estimated his loss for the two years at something less than five hun-. dred dollars.

It is in testimony that an opening or culvert through the railroad embankment could have been constructed at the cost of about seventy-five dollars, and that this would have allowed the' water impounded by the obstruction to pass away, and that such culvert would have made no difference as to the safety of the roadbed for the general travel over it. -It is also shown in the testimony that the land could have been sufficiently drained by the digging of a ditch from the railroad track to the bayou, and that the ditch would have cost not more than one hundred dollars.

To the declaration filed by Mr. Sultan, the railroad interposed a plea of general issue. No other plea was filed.

The court refused to grant a peremptory instruction for the defendant. Instruction number 2 for defendant was given by the court, and reads as follows: “The court instructs the jury for the defendant that in this case they cannot find a verdict for the plaintiff for more than it would have cost the plaintiff to have dug a ditch in the spring of 1909 into Jones Bayou and thereby relieved the lands, the drainage of which is complained, from the rain water, and, if the jury believe from the evidence that such a ditch could have been dug through the plaintiff’s land, giving the plaintiff as complete drainage through the said land as would have been without the roadbed of the defendant, that then it would have been his duty to have dug a ditch, and protected himself, and the measure of his damage, if he can recover at all, would be and is the cost of the ditch from the evidence.”

The jury returned a verdict in favor of Mr. Sultan, and assessed his damages at one hundred dollars. The railroad company appealed on the question of any liability whatever, and a cross appeal was taken by Mr. Sultan, claiming that the court erred in admitting evidence of the cost of digging a ditch, and in giving of instruction number 2 above set forth.

The law in this state touching the liability of the railroad company for damages caused by the obstruction of surface water by its roadbed or embankment, as in this case alleged, is well settled. Sinai v. Railroad Co., 71 Miss. 547, 14 So. 87. See, also, the case, recently decided by this court, of Thompson v. Mobile, J. & K. C. R. Co., 61 So. 596.

On the direct appeal we see no error by the trial court in ruling on the question of the railroad company’s liability.

In his cross appeal, Mr. Sultan contends that the court erred in giving instruction number 2, and in holding that the measure of Ms damage would be the cost of the ditch. He claims that he, being lessee, was not under obligation to dig this ditch in the spring of 1909, when his crops which were damaged were first planted. He also contends that, even if the owner of the land should be under such obligation in order to mitigate the damages, the same duty would not have rested upon him, a mere tenant.

Touching the question before us, that is, the duty of the injured party to prevent damage, we make the following quotation from Sutherland on Damages (3 Ed.),.sec. 90: “The measure of the duty is such care and diligence as a man of ordinary prudence would use under the circumstances. ... A lessee is not bound to go to an expenditure of three hundred dollars in constructing a ditch to protect his property from injury resulting from negligence in the construction of a railroad.”

Mr. Sutherland, to sustain his announcement of the law relative to the obligation of a lessee to make an expenditure in constructing a ditch, cites the case of Galveston, H. & S. A. Ry. Co. v. Borsky, 2 Tex. Civ. App. 545, 21 S. W. 1011. We find that the following is decided in the case cited: “Though it is 'the duty of a party to protect himself from the injurious consequences of the wrongful act of another, if he can do so by ordinary effort and care or at moderate expenses,’ such rule has no application in an action for damages against a railroad for the destruction of plaintiff’s crops by overflow, from the defective construction of defendant’s roadbed, where the injury could only have been prevented by the digging of a ditch at a cost of three hundred dollars; the digging of a ditch at such cost not being 'ordinary effort and cost’ or a ‘moderate expense.’ ” In delivering the opinion of the court in the Borsky case, PleasaNts, J., said: “The appellee was not required to make such an expenditure to protect his property from injury resulting from the alleged negligence of appellant. Besides, the evidence discloses that the appellee is not the owner, but the lessee, of the land upon which he was farming, and it is doubtful whether under any circumstances a lessee would be required to cut a ditch such as the one proposed for his protection against the wrongful act of another. A tenant under an ordinary lease would have no authority to make such change or alteration in the property of his landlord. ’ ’

The Texas court of civil appeals, on the same day that it decided the Borsky case, also rendered a decision in another case, Railroad v. Ryan, 21 S. W. 1013, in which it appears to make a distinction between the duty of the owner of the land and a tenant under circumstances like those in the present case. We take the following from the opinion in the Evan case: “In the Borsky case he was a tenant, and in this case the plaintiff appears to be the owner of the land. ’ ’

In the case of Railroad v. Horan, 23 Ill. App. 259, it was held that it was not the duty of the plaintiff to mitigate the injury by digging a ditch to drain off the water where the railroad company obstructed the natural flow of surface water. We take the following from the opinion in that case: “The appellee was a mere tenant, and had no right to dig such a ditch, and was not compelled to do so.”

Applying the law to the facts of this case, we believe that the trial court erred in giving instruction number 2 for defendant, and in confining the damage to be recovered by Mr. Sultan to the amount which it would have been necessary to expend during the spring of 1909 in constructing a ditch to drain the water impounded by the railroad'embankment into Jones Bayou.

Mr. Sultan, as lessee, was not bound to make an expenditure of one hundred dollars in digging a ditch through the land of his landlord in order to protect the crops which he expected to raise on the land from damage re-suiting from neglig’ence in the construction of the railroad embankment.

It is argued by counsel for the railroad company that the duty owing by Mr. Sultan to prevent damage is taken out of the rule that a tenant under an ordinary lease has no authority to make a change or alteration in the property of his landlord by constructing a ditch through it by reason of a provision in the contract of lease under which he held the land. This stipulation reads: -‘ ‘ The party of the second part [Sultan] further agrees to keep all ditches open and ditch banks clean.” We do not see any force in counsel’s argument. It is clear that the stipulation in the lease agreement refers to ditches already constructed on the land. We do not find anything in the agreement to authorize Mr. Sultan to dig new ditches. Without the authority from his landlord, we do not see that he had the right to construct a new ditch through the land.

Counsel for cross-appellant, Mr. Sultan, contend that, as there was only a plea of general issue filed, and no notice given of special matter thereunder, that testimony relating to mitigation of damages by digging the ditch was not admissible. This has been settled by the case of Grayson v. Brooks, Neely & Co., 64 Miss. 410, 1 So. 482, wherein Judge Cooper, delivering the opinion of the court, said: “Matters in mitigation of damages merely should be given in evidence under the general issue, for by that plea the defendant puts upon the plaintiff not only the proof of his injury but its extent.”

Affirmed on direct appeal, and reversed on cross appeal, and remanded for trial as to amount of damages.

Cook, J., takes no part in this decision.

Affirmed on direct appeal; reversed on cross appeal; remanded as to amount of damages.