Illinois Cent. R. v. Wright

Cook, J.,

delivered the opinion of the court.

This cause is before this court on an appeal by the IIlinois Central Eailroad Company from a judgment of the circuit court of De Soto county, based on the verdict of a jury awarding the plaintiff, F. E. Wright, the sum of two thousand dollars as compensation for damage done to crops growing, upon lands adjacent to the right of way of said railroad company, the declaration in said cause averring, among other things, that in the construction and maintenance of its railroad embankment the defendant had disregarded the fact that this embankment obstructed the drainage of plaintiff’s lands, and that it had for many years negligently and willfully failed to provide the necessary culverts and other means for the water accumulating on said lands to pass underneath the tracks of said defendant so that the same might be quickly and finally disposed of through the channel provided by nature. The facts necessary to be stated are, in substance, as follows: At the point where the damage is alleged to have occurred the railroad runs north and south across a valley in which there was a natural drain or creek running from the east to the west. The railroad embankment was constructed across this valley so that it obstructed the natural drainage of the area to the east of the railroad, and, to meet this situation, the railroad company at the time of throwing up this embankment, about the year 1860, constructed under the embankment a brick culvert ten feet wide and nine and one-half feet high. In the year 1911, the appellee purchased the land lying in this valley on both sides of the railroad. The land purchased by the appellee which lies on the eastern side of the railroad consists of four hundred and nine acres, lying in the valley which runs eastward from the railroad, and running across this land to the brick culvert are two ditches, one leading from the northern slope of the valley, and the other from the southern slope. The land purchased by the appellee on the western side of the railroad consists of seventy-four acres which lies in a long, narrow strip, about three-fourths of a mile long, and two hundred or three hundred yards wide, and from the western end of the culvert across this strip of land there meanders a creek which is the natural drainage of this part of the valley.

On account of the gradual filling of the land in this valley, as well as the creek which drains westward from the culvert, the bed of this creek, both on the right of way and west thereof, is now five or six feet higher than the bottom of this culvert, and as a consequence mud and water stands in the culvert to the same level as the bottom of the ditch beyond. This leaves only about three or four feet of the top of the culvert which serves as drainage, and as a result, in times of rain, the water is dammed up at the east end of the culvert, and backs up and spreads over a portion of appellee’s land to the east of the railroad; thereby damaging the crop growing thereon. The railroad right of way is one hundred feet wide, the culvert sixty feet long, and the distance from the western mouth of the culvert to the western edge of the right of way is twenty feet. The testimony is practically undisputed that the level of the bottom of the ditch across this twenty feet from the mouth of the culvert to the western edge of the right of way is five or six feet higher than the bottom of the culvert, while the level of the bottom of the ditch west of the right of way and on and across appellee’s land is practically the same, and that this elevation of the bottom of the ditch acts as a dam at the western mouth of the culvert; thereby causing the culvert to fill up to the same level, leaving only the top portion of the culvert to function.

There are many questions discussed in the briefs of counsel which, under our view of this case, it will be unnecessary to consider. The appellee contends that the proximate cause of the injury and damage was the filling of the ditch in the space intervening between the mouth of the culvert and the western edge of the right of way, and the trial court instructed the jury, in effect, that the railroad company was negligent in failing to provide passageway for the water the entire width of the right of way, even though no passage for the water existed beyond the right of way, and that it was liable for any damage resulting from its failure in this regard.

The flow of water across this right of way is from east to west, and it is undisputed that the drainage from the east line of the right of way to the western end of the culvert is adequate if the flow of water was not obstructed west of that point. While it is conceded that the ditch on the right of way west of the culvert has filled until the level of the bottom thereof is several feet above the bottom of the culvert and that this obstructs the water at the mouth of the culvert, yet practically the same condition exists in the creek west of the right of way. The land west of the right of way is owned by the appellee, and the ditch which affords an outlet for this drainage across this land is filled with logs and debris, and the level of the bottom thereof is practically the same as that of the portion of the ditch which is on the right of way. If the ditch across the western part of the right of way should be opened to tbe depth of tbe culvert, it would only remove tbe obstruction or dam to tbe line of appellee’s property and would not afford tbe desired relief. If tbe culvert and ditcb on tbe right of way are to'remain open and function properly, it is manifest that corresponding drainage must be provided across tbe lands of appellee, and, until that is done, we do not think tbe appellant is required to do tbe useless thing of opening tbe ditcb on the right of way to a depth below tbe level of tbe drainage beyond. If tbe railroad company had provided a clear passage for tbe water tbe entire width of its right of way, we think tbe same results would have followed on account of tbe obstruction created by appellee’s land west of tbe right of way, and, this being true, tbe failure of tbe railroad company to open this ditcb cannot be held to be tbe proximate cause of tbe injury to appellee’s crops, since “nothing can be deemed tbe proximate cause of an injury unless, bad it not happened, tbe injury would not have occurred.” 1 Thompson Neg., section 56. When tbe appellee has removed tbe obstructions existing on bis own land and provided an adequate outlet thereon, a corresponding duty will rest upon tbe railroad company, but tbe act of tbe company in failing to provide a clear passage for tbe water was not an act “without which tbe damage would not have occurred,” and we think tbe peremptory instruction requested by tbe appellant company should have been granted.

Tbe judgment of tbe court below will therefore be reversed, and judgment entered here for tbe appellant.

Reversed, and judgment for appellant.