not, still no right been created. In Railroad v. Hays. by prescription or limitation has Ferrell v. Ferrell, 1 Baxt., 334, this court, speaking by Judge Freeman, says: "The rule of a presumption of a grant from the State has been settled in Tennessee by several cases to be twenty years, and we think this rule may be as well applied to a right (of way) of the character now under consideration as to grants from the State. It is based on reasons of public policy and to quiet titles, and is a presumption of law in favor of a long continued possession" (citing several authorities). "We think, therefore, these cases, recognizing the period of presumption of a grant, furnish a sounder analogy on which to fix the rule of presumption of a deed where it is to be made out solely by use or enjoyment of the right than the period of seven years in our statute of limitations as to real property. "Perhaps we might hold with perfect propriety that these cases furnish evidence of the adoption of this period as the rule for presumption of a conveyance, required to be made by deed in all cases, when such conveyance is to be made out by enjoyment or use, without any written evidence of the inception of the claim, "A sound policy favors this view, as the fact of a deed could readily be shown within the period of seven years, if the party had one, while it might well be lost, or evidence of its existence be unattainable in the longer period of twenty years, and therefore the right be wrongfully imperiled." This holding was made in view of our statute of Railroad v. Hays. limitations, and the principles of construction now plaintiff in error were present considered of and For the strong and passed upon by the court. reasons given they were rejected as being against public policy and unsound in practice. The case turned upon the construction of the statute. No sufficient reason is urged why that opinion should be overruled. There is no one fact in the record to show that an easement to overflow the land existed under an uninterrupted and adverse exercise of the right for seven years," or for any other length of time. If it shall ever become a rule of this court to reverse because the court below has erroneously charged the law upon pleas raising questions of law, and in support of which no facts are introduced, it will in many cases give to defendants justly liable an indefinite delay in having their responsibility fixed by judgment, as immaterial and impertinent pleas will be constantly interposed. It is perfectly apparent from the record that no thought of claim to overflow the land ever occurred to Hays or to the managers of the railroad until after this suit was commenced. Every fact and circumstance (important and unimportant) proves conclusively that claim of any sort was ever asserted by the company or its agents against the claim of Hays to the absolute and unrestricted use of the land. no The construction of the ditch was with a view to drain the land, and that purpose was pursued until Railroad v. Hays. after the close of the war. Up to that period the railroad company recognized and obeyed its obligation to protect the lands from overflow, and has never since denied the existence of that obligation. The record shows that no benefit-an indispensable essential in the claim to an easement-ever did or could result to the said road from the overflow of the lands. Since the commencement of this suit, the company (as it takes care to prove) opened the ditch, the witness saying: “I am frequently called on to open these old ditches of this sort; opened a ditch last spring south of the railroad company's right of way through this land for the protection of the railroad, by order of the superintendent. The roadbed is low and damp." We are aware of no rule of law that gives a right by prescription or long use to a nuisance that gives benefit to no body or corporation, but works hurt and inconvenience to all, even as in this case, to the creator of the nuisance. The water was injurious to the road-bed, and on that account the ditch was opened. Prescription is defined to be, the manner of acquiring property by a long, honest and uninterrupted possession or use during the time required by law. The possession must have been long-continued, peaceable and without interruption: Bouvier's Law Dictionary. There has been, as we have seen, no such possession and use, in the case before us, for any length of time, either long or short, and we are satisfied the purpose to make the claim originated after suit was brought. The next question is, is the company liable for Railroad v. Hays. damages resulting from an overflow by surface water? In Colcough v. Nashville & Northwestern Railroad Company, 2 Head, 173, this court said: "The statutory remedy does not, however, contemplate or extend to damages or injuries to adjoining land not authorized by the charter, nor to damages resulting from carelessness, negligence or willful trespasses in the execution of the work." This language of Judge McKinney was approved in Carriger v. Railroad Company, 7 Lea, 389. The damages in the case at bar is to land not contemplated in the statutory remedy, and result from carelessness, negligence or willful trespass in keeping up the road-bed. "Land cannot be cultivated or enjoyed unless the springs which rise on the surface and the ruins that fall thereon be allowed to make their escape through the adjoining and neighboring lands. All lands, therefore, are of necessity burdened with the servitude of receiving and discharging all waters which flow down to them from land on a higher level, and if the Owner or occupier of the lower lands interposes artificial impediments in the way of the natural flow of the water through or across his lands, and by so doing causes causes the higher lands to be flooded, he is responsible in damages for infringing the natural rights of the possessor of such higher land to the natural outfall and drainage of the soil, unless he has gained a right to pen back water by contract, grant or prescription. So if the proprietor of the higher lands alters the natural condition of his property, and collects the surface and rain water together Railroad v. Hays. at the bottom of his estate and pours it in a concentrated form and in unnatural quantities upon the land below, he will be responsible for all damages thereof caused to the possessor of the lower lands": Addison on Torts, p. 95. This principle was cited and approved in Carriger's case, 7 Lea, and applies to It embraces rain and surface water, as this case. well as running streams. There can be in principle no distinction between the two kinds of water. The only questions arising are, has the conduct of the one party worked an injury to the property of the other? Has the railroad company, in the construction of its road-bed, or by its failure to keep it in proper condition, prevented the land owner from using and enjoying his estate? Has it so altered the natural condition of its right of way as to collect surface and rainwater together and throw it back in unnatural quantities upon the land of Hays, and cause damage thereto ? The facts conclusively show that all these things have been done and that damage has resulted. The railroad company has made itself a trespasser by its subsequent neglect to keep its property in repair, and is as much responsible for injuries resulting from that neglect as it would be for a failure, carelessness or negligence in the original construction of its road by which loss or damage was visited upon an adja cent land-owner. The petition to rehear is dismissed, and the judgment of affirmance entered at the last term is reinstated. |