* Corpus Juris-Cyc. References: Railroads, 33Cyc., p. 161, n. 90; p. 353, n. 63; Waters, 40Cyc., p. 644, n. 26; p. 654, n. 90. On right of grantor of railroad right of way of his privy to recover damages for interference with surface water by construction of road, see annotation in 19 A.L.R. 487; 22 R.C.L. pp. 892, 895; 4 R.C.L. Supp. 1479. The appellee brought this action before a justice of the peace of Sunflower county against the appellant to recover damages alleged to have been done to appellee's land in the construction and maintenance by the appellant of its railroad, and recovered damages in the sum of two hundred dollars. From that judgment, appellant prosecuted an appeal to the circuit court of Sunflower county, where there was a trial, which resulted in a judgment for appellee in the sum of one hundred fifty dollars. From that judgment, appellant prosecutes this appeal.
The only error argued by appellant is the giving of the following instruction for the appellee:
"The court instructs the jury, for the plaintiff, that if you believe from the evidence that the natural flow of water on the lands in question is towards the right of way of the defendant's track, and that the embankment built up by the railroad for its track prevented the water from running off of the lands of plaintiff, and thus inundating the lands of plaintiff adjacent to the said right of way, and that plaintiff suffered thereby, then the defendant is liable." *Page 273
The appellant's criticism of the instruction is that it authorized the jury to find liability on its part for the alleged damage to appellee's land, regardless of whether appellant's roadbed and track was properly constructed and maintained or not. We think the appellant's objection to the instruction is well founded. It is not the law that a railroad company is liable to an adjacent landowner for the damages done his land by theproper construction of its roadbed and track. It is only liable for such damages resulting from the improper construction and maintenance of its roadbed and track. When a railroad company acquires a right of way for its roadbed and track through land, either by purchase or condemnation, there goes with such right of way exemption from liability to adjacent landowners for all damages done their land, resulting from the proper construction and maintenance of its roadbed and track.
The alleged damage to appellee's land was by surface or overflow waters. Such waters are a common enemy, and may be fought off by a landowner according to his necessities, without liability to an adjacent landowner for damages resulting therefrom. This principle is qualified by the rule that the railroad company must use the land condemned so as not to unnecessarily injure others. Hence a corporation, building a railroad in a manner which will naturally result in injury to another by obstructing the flow of surface and overflow waters, when another method, equally safe, convenient, and inexpensive, would not be injurious to others, is liable for such injury.Sinai v. Railroad Co., 71 Miss. 547, 14 So. 87; RailroadCo. v. Tays, 142 Miss. 743, 107 So. 871.
The instruction complained of ignored the principle laid down in those cases. It authorized the jury, as stated, to return a verdict for appellee, even though appellee's roadbed and track were properly constructed and maintained.
Reversed and remanded. *Page 274