State v. Logan (Fla.). State, McGimpsey v. (Ala. App.). State, Maloy v. (Ala. App.). State, Morris v. (Ala. App.). State v. Parker (Fla.). State, Parker v. (Miss.) State, Perry v. (Ála.).. State, Pinkston v. (Ala. App.). State v. Poole (La.) State, Porter v. (Miss.). 606 Straughter v. State (Ala. App.). 926 184 State v. Pinellas County Power Co. (Fla.) 504 Stroder v. Tuscaloosa (Ala. App.) 926 926 Sullivan, Austin v. (Miss.).. 275 482 377 Summers v. State (Ala. App.). 456 State, Reeves v. (Ala. App.) 1 State, Robinson v. (Miss.).. 926 Sutton v. Cannon (Miss.) 377 Swinea, Ex parte (Ala.). 455 Swinea v. State (Ala.).. 24 87 87 926 Swinea v. State (Ala. App.) 86 Tait, American Ry. Exp. Co. v. (Ala.). 328 926 Tatum v. State (Ala. App.) 569 707 519 Taylor, America Mining Co. v. (Ala.) 761 82 Taylor v. Cathey (Ala.). Taylor v. Birmingham (Ala. App.) 927 834 Taylor v. Taylor (Miss.). 394 135 286 768 456 Texas & P. R. Co., Jeansonne v. (La.)... 410 87 Thames, Monroe Stock & Exchange Co. v. 86 (Ala.) 348 926 Theo. Hirsch Co. v. Scott (Fla.) 157 569 Thomas, Parrish v. (Fla.). 749 State v. Thompson (Ala.). State, Thompson v. (Fla.). 756 Thomas, Scott v. (Ala.). 778 527 Thomas v. Thomas (Ala.) 766 State, Tillery v. (Ala. App.). State, Turner v. (Miss.).. State, Tyson v. (Fla.).. State v. United Brothers of America and Sisters of True Love (Ala.). State, Walker v. (Ala. App.). 254 Thompson v. Menefee (Ala.) Thompson, State v. (Ala.).. 830 Thompson v. State (Fla.). 927 Thomason v. Garic (La.). 47 195 Thompson v. Commercial Nat. Bank (La.) 688 107 756 527 564 Thompson & Co. v. Vildibill (Ala.) 139 State, Walker v. (Miss.). State, Webster v. (Ala. App.). 9 Tillery v. State (Ala. App.). 927 State, Whitside v. (Ala. App.) State, Wells v. (Miss.). State, Werline v. (Ala. App.). State, White v. (Ala. App.). State, Wilkinson v. (Ala. App.). State, Williams v., two cases (Ala. State, Williamson v., two cases (Miss.) 201 T. J. Wilkinson & Son, G. A. Soden & Co. 674 v. (Miss.). 182 927 Townes, Garner v. (Miss.) 20 927 Town of Forest Park in Hillsborough 927 927 Town of Haines City, Bannon v. (Fla.)... 749 573 Town of Heflin, Beason v. (Ala. App.). 923 App.) 927 Town of Houston, Wright v. (Miss.). 395 536 541 34 Trahan, Elfant v. (La.). 404 35 Trichell, Cavell v. (La.). 249 ber Co. v. (Ala.)... 395 Tropical Paint & Oil Co., Tuscaloosa Lum917 236 914 Trost v. Beck (Ala.). 472 State, Windham v. (Ala. App.). 457 Truelsen v. Southern Lumber & Supply State, Wright v. (Ala. App.).. 458 Co. (Fla.). 267 State, Young v. (Ala. App.). 200 Turnbough & Sons, Illinois Cent. R. Co. v. State, Young v. (Ala. App.). 286 State, Youngblood v. (Ala. App.). 195 THE SOUTHERN REPORTER VOLUME 100 ILLINOIS CENT. R. Co. v. WRIGHT. (No. 23637.) R. Wright, the sum of $2,000 as compensation for damage done to crops growing upon lands adjacent to the right of way of said (Supreme Court of Mississippi, Division B. railroad company, the declaration in said April 7, 1924. Suggestion of Error Overruled May 26, 1924.) (Syllabus by Editorial Staff) 1. Waters and water courses 171(1)—| Railroad's failure to provide passageway for water held not proximate cause of injury. Where owner of land adjacent to railroad's right of way permitted creek, constituting a natural drain of his land on other side of right of way, to become filled with logs and débris, the railroad was not liable for damage to crops on such owner's land on other side of the right of way, by reason of its failure to provide a passageway for the water across right of way, since such failure on the part of the railroad was not the proximate cause of the injury, inasmuch as the drainage would have been obstructed by owner's own failure to keep ditch open, even if railroad had provided for adequate drainage across its right of way. 2. Negligence injury. 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 56(1)—"Proximate cause" of natural drainage of the area to the east of Nothing can be deemed the "proximate cause" of an injury, unless, had it not happened, the injury would not have occurred. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.] 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 10 feet wide and 92 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 Appeal from Circuit Court, De Soto Coun- which lies on the eastern side of the railty; Greek L. Rice, Judge. Action by F. R. Wright against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered. May, Sanders & McLaurin, of Jackson, for appellant. Wells, Stevens & Jones and Francis Harmon, all of Jackson, for appellee. COOK, J. This cause is before this court on an appeal by the Illinois Central Railroad Company from a judgment of the circuit court of De Soto county, based on the verdict of a jury awarding the plaintiff, F. road consists of 409 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 74 acres which lies in a long, narrow strip, about threefourths of a mile long, and 200 or 300 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-1 on the right of way. If the ditch across the western part of the right of way should be opened to the depth of the culvert, it would only remove the obstruction or dam to the line of appellee's property and would not afford the desired relief. If the culvert and ditch on the right of way are to remain open and function properly, it is manifest that corresponding drainage must be provid that is done, we do not think the appellant is required to do the useless thing of opening the ditch on the right of way to a depth below the level of the drainage beyond. If the railroad company had provided a clear passage for the water the entire width of its right of way, we think the same results would have followed on account of the ob which drains westward from the culvert, the bed of this creek, both on the right of way and west thereof, is now 5 or 6 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 3 or 4 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 easted across the lands of appellee, and, until 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 100 feet wide, the culvert 60 feet long, and the distance from the western mouth of the culvert to the western edge of the right of way is 20 feet. The testimony is practically undisputed that the level of the bot-struction created by appellee's land west of tom of the ditch across this 20 feet from the mouth of the culvert to the western edge of the right of way is 5 or 6 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. [1, 2] 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 débris, and the level of the bottom thereof is practically the same as that of the portion of the ditch which is the right of way, and, this being true, the failure of the railroad company to open this ditch cannot be held to be the proximate cause of the injury to appellee's crops, since "nothing can be deemed the proximate cause of an injury unless, had it not happened, the injury would not have occurred." 1 Thompson Neg. § 56. When the appellee has removed the obstructions existing on his own land and provided an adequate outlet thereon, a corresponding duty will rest upon the railroad company, but the act of the company in failing to provide a clear passage for the water was not an act "without which the damage would not have occurred," and we think the peremptory instruction requested by the appellant company should have been granted. The judgment of the court below will therefore be reversed, and judgment entered here for the appellant. Reversed, and judgment for appellant. WILKINSON COUNTY Y. FOSTER CREEK (Syllabus by the Court.) Taxation 493 (4)-When appeal from order of board equalizing assessment will lie, stated. An appeal from the board of supervisors in assessing and equalizing taxes does not lie until after the State Tax Commission has passed on the roll and equalized it with those of other counties, under sections 6-10, c. 323, Laws to 7769h1, and an appeal taken by a taxpayer 1920, Hemingway's Supplement 1921, §§ 7769d1 prior to the filing of the assessment roll with Tax Commission will be dismissed. Moller Vanderboom Lumber Co. v. Attala County, 99 South. 823, cited. Appeal from Circuit Court, Wilkinson County; R. L. Corban, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |