HENRY v. GULF M. O.R. CO

Adams Long and James A. Finley, all of Tupelo, for appellants.

The Mobile and Ohio Railroad was constructed across Wilgo Creek bottom in Chickasaw County, Mississippi, in 1859, at a point just east of and adjacent to the lands now owned by defendants and cross-complainants. In constructing its line of track across this bottom two trestles were built to permit the flow of water. These trestles remained until December 1925, when one of them was filled in by the railroad company. In 1931 certain of these landowners filed suits in the courts of Lee County, Mississippi, against the Mobile and Ohio Railroad Company, alleging that the filling in of the trestle has retarded the flow of water down Wilgo Creek, causing it to back up and stand on plaintiffs' lands, thereby causing the destruction of their crops. In November 1931, the Mobile and Ohio Railroad Company filed its original bill in this case, in the chancery court of the second district of Chickasaw County, Mississippi, alleging that numerous suits had been filed against it in Lee County, Mississippi, charging that each suit was based on the same alleged cause of action and asking that the plaintiffs be enjoined from prosecuting said suits and that they be consolidated. A temporary injunction was granted and issued on November 8, 1931. On December 31, 1931, the defendants in this suit filed an answer to the original bill and a motion to dissolve the temporary injunction. On January 7, 1932, the motion to dissolve was heard, overruled and the injunction made permanent. An appeal from this decision was taken and affirmed by this Court. (See Henry v. Mobile O.R. Co., 163 Miss. 354, 142 So. 11). No further action was taken in said case until May 31, 1943, when the defendants or their successors in title filed their answer, adopting the answer filed on December 31, 1931, and their cross-bills. The case was tried on its merits, taken under advisement and on April 20, 1946, a decree was rendered in which the chancellor held that the trestle filled in did not span Wilgo Creek but spanned or was adjacent to a practically dead slough through which the passage of waters was negligible and that a preponderance of the evidence negatives the allegations of cross-complainants that the damage was caused by the filling in of the aforementioned trestle. We contend that the holding of the chancellor was manifestly wrong and against the overwhelming weight of the testimony.

Culverts or openings in a railroad embankment, where the embankment crosses a natural watercourse, must be constructed and maintained of such size and capacity as to provide not only for the flow of all water that can be carried in the channel, but also for all such overflow waters as definitely belong to that watercourse, and which according to the experience of the past are to be anticipated as likely to be present, at some time or times, along the said channel and are present along but outside of the channel only because the channel to which they belong is not able at the time to carry them, but to which they will return as soon as there is a sufficient recession to allow it.

Sinai v. Louisville, N.O. T.R. Co., 71 Miss. 547, 14 So. 87; Thompson v. Mobile, J. K.C.R. Co., 104 Miss. 651, 61 So. 596; Columbus G.R. Co. v. Taylor, 149 Miss. 269, 115 So. 200; New Orleans N.E.R. Co. v. Burdette (Miss.), 183 So. 915; 27 R.C.L. 1105, 1106, 1064, 1065; 67 C.J. 679, 680.

So far as the flow of water in natural watercourses is concerned, the railroad company is required to answer for any damages resulting from its obstruction of such watercourses whether the obstruction was reasonable or unreasonable.

Thompson v. Mobile, J. K.C.R. Co., supra; Mississippi Cent. R. Co. v. Caruth, 51 Miss. 77; Mississippi Cent. R. Co. v. Mason, 51 Miss. 234; New Orleans N.E.R. Co. v. Burdette, supra; Mobile O.R. Co. v. Tays, 142 Miss. 743, 107 So. 871.

It is immaterial whether the trestle which was filled in spanned Wilgo Creek or a slough because in either event it was an outlet for flood waters and was a natural watercourse.

Yazoo M.V.R. Co. v. Davis, 73 Miss. 678, 19 So. 487.

The closing or the keeping closed of a flowing stream of water by a railroad company is a continued nuisance and each year the railroad company so closes the watercourse it is a separate and distinct tort and can be made the basis of a separate action.

Yazoo M.V.R. Co. v. James, 118 Miss. 224, 79 So. 65; Mississippi Cent. R. Co. v. Magee, 93 Miss. 196, 46 So. 716; Rosamond v. Carroll County, 101 Miss. 701, 57 So. 979; Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 So. 26.

It is true that the Court has held that where a plaintiff recovers the full value of his land the same plaintiff, or his privies, cannot again sue for damages to crops.

Illinois Cent. R. Co. v. Miller, 68 Miss. 760, 10 So. 61.

But nowhere has our court said that if a suit for damages to the value of land fails that the plaintiff or his privies are in the future barred from suing for damages to crops that might occur from the same tort in subsequent years. The doctrine of res adjudicata is not applicable in the case at bar.

See Yazoo M.V.R. Co. v. James, supra; Mississippi Mills v. Smith, supra; Cantrell v. Lusk, 113 Miss. 137, 73 So. 885; Rosamond v. Carroll County, supra; Norris v. Harvey (Miss.), 145 So. 757; Illinois Cent. R. Co. v. Miller, supra; Mississippi Cent. R. Co. v. Magee, supra; Bare v. Hoffman, 79 Pa. 71, 21 Am. Rep. 42; Catello v. C.B. Q.R. Co., 298 Ill. 248, 131 N.E. 591; Chesapeake O.R. Co. v. Blankenship, 158 Ky. 270, 164 S.W. 943; Chicago Eastern R. Co. v. Loeb, 118 Ill. 203, 8 N.E. 460, 59 Am. Rep. 341; Chicago Forge Bolt Co. v. Sanche, 35 Ill. App. 174; Danville R. Co. v. Commonwealth, 73 Pa. St. 38; Fowle v. New Haven Northampton Co., 112 Mass. 334, 17 Am. Rep. 106; Gulf v. Chicago N.W.R. Co., 157 Ill. 125, 41 N.E. 643; Hardin v. Olympic Portland Cement Co., 154 Ky. 270, 164 S.W. 943; Kellog v. City of Kirksville, 149 Mo. App. 1, 129 S.W. 57; Moses v. Pittsburg, Ft. Wayne Chicago R. Co., 21 Ill. 516; Nashville v. Comar, 88 Tenn. 415, 12 S.W. 1027, 7 L.R.A. 465; Randle v. Pac. R. Co., 65 Mo. 332; Ridley v. Seaboard R. Co., 118 N.C. 996, 24 S.E. 730; Thackery v. Union Portland Cement Co., 154 P. 450; Wenona Zinc Co. v. Dunham, 56 Ill. App. 351; Richardson v. Boston, 19 How. 263, 15 L.Ed. 639; Baltimore P.R. Co. v. Fifth Baptist Church, 137 U.S. 568, 34 L.Ed. 784.

There is no merit in the contention that the cross-complainants should recover nothing because the trestle was filled in before they became owners of the land.

John R. Anderson, of Tupelo, and Carl Fox, of Mobile, Ala., for appellee.

On direct appeal the only question involved is whether there was sufficient evidence to support the chancellor's finding and decree that the common cause of action alleged in the original actions at law and the croos-bill did not in fact exist. In each of the eleven original actions at law and in the cross-bill, filed after the original actions had been transferred to the chancery court, plaintiffs alleged in substance and undertook to prove that Mobile and Ohio Railroad Company had in 1925, by filling one of two trestles in its embankment across Wilgo Creek bottom, obstructed the escape from plaintiff's lands of the flood waters of Wilgo Creek, causing the lands to overflow to a greater extent and the flood waters to remain on the lands for longer periods than before, to the damage of plaintiffs. The purpose of the rule of equity that, in such situations, the actions at law may all be removed to the chancery court and there disposed of in one trial, is to be determined once and for all whether or not the alleged cause of action, common to the multiple suits, exists or ever did exist in fact. If, in such case, the chancery court finds and adjudges that the wrong alleged to have been done by the defendant in the actions at law had not been done, it is a final adjudication of that fact, and no subsequent suits can be maintained by the original plaintiffs or their successors in title or privies in estate, for the same alleged wrong and damage to the same lands or crops thereon. That, of course, is elementary law. The court found and adjudged that the wrong alleged to have been done by Mobile and Ohio Railroad Company had never in fact been done. Most certainly the decree was not against the overwhelming weight of the evidence or manifestly wrong.

All of the present parties plaintiff purchased their lands from others who had acquired them from the original plaintiffs, except George and Mary Henry, who inherited theirs. All of them bought with full knowledge of the conditions that had existed for many years. All of them knew of the pending suits except, possibly, Maharry who denied knowledge of them. His father, B.F. Maharry, knew of them. If the lands had depreciated in productive value as they say, it must be assumed that they paid no more than the depreciated value, knowing as they admit that they would not produce good crops. They did not acquire any right of action their predecessors in title may have had. Their suits are for the value of crops which they say they would have raised but for the alleged obstruction of drainage, but which they knew when they purchased, according to their testimony, they could not raise unless the fill should be replaced with a culvert or another trestle. And they knew Mobile and Ohio was asserting and maintaining its right to retain the fill permanently in place. They have no cause of action.

Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292.

Where a complainant recovers the full value of his land in one suit, the same plaintiff or his privies cannot again sue for damages to crops.

Illinois Cent. R. Co. v. Miller, 68 Miss. 760, 10 So. 61; Cantrell v. Lusk et al., 113 Miss. 137, 73 So. 885. Chiles v. Champenois, 69 Miss. 603, 13 So. 840; Chiles v. Gallagher et al., 67 Miss. 413, 7 So. 208; Vanderslice v. Irondale Electric Light, etc., Co., 232 Pa. 435, 81 A. 445; Chesapeake O.R. Co. v. Salyer, 272 Ky. 171, 113 S.W.2d 1152.

A "dismissal with prejudice" is equivalent to an adjudication upon the merits and will operate as a bar to a future action, while a "dismissal without prejudice" means that existing rights of the parties are not affected by the dismissal but are as open to settlement and negotiation or legal controversy as if no judgment of dismissal had been entered.

Maib v. Maryland Casualty Co., 17 Wn.2d 47, 135 P.2d 71, 74.

See also Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609; Cole v. Fagan, 108 Miss. 100, 66 So. 400; W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8; Hickey v. Johnson (C.C.A. 8), 9 F.2d 498, 501; Fowler v. Osgood, 141 F. 20-24, 72 C.C.A. 276, 280, 4 L.R.A. (N.S.) 824; Mars v. McDougal, 40 F.2d 247, 249; Bank of America v. Jorjorian (Ill.), 24 N.E.2d 896, 897.

Argued orally by James A. Finley, for appellants, and by Carl Fox, for appellee.