Pelham & Havana Railroad v. Walker

Broyles, C. J.

The plaintiff sued the defendant railroad company for damage to his fish-pond, which was adjacent to the railroad’s right of way, and alleged that the defendant in building its railroad put in a fill across a stream just above the fish-pond, and constructed the road in a “cut,” with a ditch on both sides of the roadbed, and that this construction diverted the rainwater from its natural course of drainage and conveyed it into the fishpond (which was abundantly stocked with fish), thereby causing the waters of the pond to become polluted with mud, destroying the fish and permanently impairing the value of the pond. No negligence of any character was charged against the defendant. Upon the trial it was shown by undisputed evidence that the plaintiff, prior to the construction of the railroad, had by deed conveyed to the defendant the land upon which the railroad was subsequently constructed, adjacent to the fish-pond. In the deed it was expressly stipulated that the land should be used for no other purpose than that of a common carrier. The deed also recited that the grantor “reserves the privilege of raising the water in his fish-pond, which is adjacent to the right of way.” There was no evidence to show that the defendant had negligently or improperly constructed the railroad, or that it could have been constructed in some other way that would not have caused the alleged damage, or that the defendant negligently or improperly maintained its roadbed and right of way.

Under these facts the verdict for the defendant was the only possible legal result (see, in this connection, Southern Marble Co. v. Darnell, 94 Ga. 331, 31 S. E. 531; Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 117, 90 S. E. 960), and the errors in the charge of the court were harmless. The verdict having been demanded by the evidence, the court erred in granting a new trial, although it was the first grant thereof.

Judgment reversed.

Bloodworth, J., concurs; Luhe J., disqualified.