Gebhardt v. St. Louis, Memphis & Southeastern Railroad ( 1907 )

BLAND, P. J.

(after stating the facts). — 1. Two points are relied on by defendant for a reversal of the judgment; first, that plaintiff’s instruction on the meas-use of damages is erroneous; and, second, that said instruction conflicts with defendant’s instruction No. 5, supra.

Defendant undertook to comply with section 1110, Revised Statutes 1899, by putting in the thirty-inch culvert and by the construction of the lateral ditches along the sides of its railroad. It is not contended in defendant’s brief that the old ditch was a natui’al water-course. The contention is that plaintiff might have constructed a sufficient ditch to protect his land, or that one could have been constructed, to convey all surface waters that flow through the culvert north to the old ditch, and for these reasons the measure of damages is the reasonable cost of such a ditch, plus the actual damages done the strawberries and plants. There would be some force in this contention, had not defendant constructed a ditch which it cieemed sufficient to protect plaintiff’s land. The gravamen of the charge is not, that defendant failed to construct a ditch, but that it negligently constructed a ditch inadequate to protect plaintiff’s land, and by reason of this negligence, plaintiff’s land was overflowed by surface Avaters and damaged. The negligence complained of AAras not one of omission but one of commission, and if proven by the evidence, defendant was liable for Avhatevor damages Avere caused by its negligent construction of the ditch at the mouth of its culvert north to the old ditch. In respect to these damages, plaintiff’s evidence tends to prove that the portion of his land that Avas OArerfloAved was rich, tillable land, worth tAvo hundred dollars per acre before the overflow, and by reason of clay, sand and gravel being deposited thereon, its value Avas depreciated one hundred and fifty dollars per acre. The deposit of clay, etc., and the consequential depreciation in value was not a mere passing, temporary injury to the land, but a permanent one for which plaintiff is entitled to recover, and we think his instruction on the measure of damages was proper.

2. Defendant’s fifth instruction was perhaps given to the jury for the purpose of confining them, in estimating the damages, to the immediate damages caused by the overflow, viz., injury to the strawberry bed. and the difference between the value of the land immediately before and immediately after the overflow. It is. not in conflict with plaintiff’s instruction on the measure of damages, in fact, it has no meaning or place in the case, unless it was given for the purpose above indicated.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.