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Davis v. Louisville & N. R. Co.

2. WATERS AND WATER COURSES. Duty of railroad to provide means for safe passage of surface waters such as might be anticipated.

It is the duty of a railway company in constructing and maintaining a railroad to provide sufficient means for the safe passage of accumulated surface waters, and this applies not only to ordinary rain falls, but to such as have occurred within past experience and observation, or might reasonably be anticipated from the physical surroundings and climatic conditions. (Post, pp. 6, 7.)

3. WATERS AND WATER COURSES. Right to have water flow upon lower lands may be lost by maintenance of artificial embankments for twenty years.

The right of owners of land to have surface water flow therefrom upon lower lands may be lost by the maintenance of artificial embankments on lands of servient estate for twenty years, and the servient estate may acquire counter easement to flow back water upon the lands of the dominant estate by such embankments. (Post, pp. 6, 7.)

Case cited and approved: Railway v. Mossman, 90 Tenn., 157.

4. WATERS AND WATER COURSES. Prescriptive right to back water upon higher land must be exercised so as to indicate claim of right.

As prescriptive right on part of owner of lower land to back surface water upon upper land is founded upon the supposition of a grant, it must be exercised or made use of in such a way as to indicate that it is claimed as a right. (Post, pp. 7, 8.)

5. WATERS AND WATER COURSES. Prescription runs against owner of higher land from time cause of action arises. Prescription cannot begin to run against the right of an owner of higher land to have the surface water flow upon lower land, because of the maintenance of embankments backing up the water, until a cause of action arises, and it does then begin to run. (Post, pp 7, 8.)

Davis v. Louisville & N. R. Co.

6. WATERS AND WATER COURSES. Prescription runs against higher owner from time culvert in railroad embankment proves insufficient.

While a cause of action arises at once upon the construction of an embankment of a permanent character which necessarily causes injury by backing up water, where a railroad in constructing an embankment recognized the right of the upper landowner by constructing a culvert, there was no cause of action, and prescription did not run against the upper owner, until experience showed the culvert to be insufficient to take care of the natural accumulation and flow of water. (Post, pp. 8-12.)

Case cited and approved: Sullens v. Chicago, etc., R. R. Co., 74 Iowa, 659.

Case cited and distinguished: Hocutt v. Wilmington, etc., Railroad, 124 N. C., 214.

7. WATERS AND WATER COURSES. Railroad claiming prescriptive right to maintain embankment has burden of proof.

In action for damages from water backed up by railroad embankment containing insufficient culvert, the burden was on the railroad company claiming a prescriptive right to show when the culvert first proved insufficient, and to show that more than twenty years before the cause of action arose the embankment and culvert actually caused overflows, and that such condition continued throughout that period. (Post, pp. 12-15.)

Cases cited and approved: Railroad v. Hays, 79 Tenn., 382; Gulf, etc., R. Co. v. Moseley, 20 L. R. A. (N.-S.), 886; Irvine v. Oelwein, L. R. A,, 1916E, 997.

8. ADVERSE POSSESSION. Must operate against persons capable of making grant.

To establish a right by prescription the acts by which it is sought to establish it must operate against persons capable of making a grant and in a condition to resist such acts. (Post, p. 15.) Cases cited and approved: Ferrell v. Ferrell, 60 Tenn., 329; Saunders v. Simpson, 97 Tenn., 382; McKinney v. Duncan, 121 Tenn., 265; Ferguson v. Prince, 136 Tenn., 543.

Davis v. Louisville & N. R. Co.

9. ADVERSE POSSESSION. Presumed in absence of evidence that persons against whom prescription claimed capable of suing. While it is part of the case of one claiming a prescriptive right to show affirmatively that owners of servient estate during the prescriptive period were competent to convey title, in the absence of any proof on the subject it will be presumed that they were cap able of suing or acquiescing in the prescription, and the fact that they were not sui juris or capable of granting a right must be pleaded and proved. (Post, pp. 15-17.)

10. ADVERSE POSSESSION. Claimant must show facts necessary to confer title.

One claiming title by adverse possession must make out his case by showing the facts necessary to confer title. (Post, pp. 15-17.) Cases cited and approved: Chaney v. Moore, 41 Tenn., 48; Cook v. Cook, 57 Tenn., 464; Alvis v. Oglesby, 87 Tenn., 172; Coal Co. v. Daniel, 100 Tenn., 65; Gross v. Disney, 95 Tenn., 592; Jones v. Coal Co., 133 Tenn., 159.

FROM MONTGOMERY.

Appeal from the Circuit Court of Montgomery County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.-HON. J. W. STOUT, sitting by interchange.

DANIEL & SAVAGE, for appellants.

AUSTIN PEAY, for appellee.

MR. L. D. SMITH, Special Justice, delivered the opinion of the Court.

These causes are before us on petitions. for certiorari filed on behalf of the defendants to have reviewed and

Davis v. Louisville & N. R. Co.

reversed the judgment of the court of civil appeals. In the circuit court the suits of the plaintiffs were dismissed, after the introduction of the evidence, upon motions made by the defendants for peremptory instructions. On appeal to the court of civil appeals this action was held to be erroneous and the causes remanded for a new trial. The cause of action is the same in each case, viz., damages for the alleged destruction of the plaintiffs' crops by an overflow of water caused by the construction of an embankment with an insufficient culvert. The case against the Louisville & Nashville Railroad Company is for damages accruing to the plaintiffs in the years 1916 and 1917, and the case against the defendant Payne as Agent of the United States government is for damages alleged to have accrued in the year 1918. The same questions are presented in both cases, and therefore they may be properly disposed of in one opinion, having been heard together in the lower courts.

The plaintiffs are the owners as tenants in common of a tract of land of about one hundred acres in Montgomery county, bounded on the north by the Cumberland river. The Louisville & Nashville Railroad was constructed through this land, dividing it into two fields of about equal size, the railroad paralleling the river. The land was low bottom land; water falling and flowing on it originally drained by natural flow toward the North to the Cumberland river through or by means of a natural channel. When the railroad was originally constructed it was placed over this natural drainage upon a trestle. Prior to the year 1896 this trestle was removed and an embankment constructed with a culvert therein. The land being low was subject to overflow from the Cumberland river which backed the water through this culvert to the upper side

Davis v. Louisville & N. R. Co.

of the embankment, and the culvert being insufficient in size to take care of the water which accumulated above and which was backed up by the Cumberland river gradually caused the land to fill up on both sides of the embankment, so that at the time the suits were brought the openings in the culvert on either side were below the level of the land itself.

That the plaintiffs' crops were damaged by the overflow of water is not a question of dispute here, and the questions presented in the record arise upon the plea of the defendants to the effect that the embankment on its right of way through the lands adjoining plaintiffs' land, and the culvert which runs through this embankment, had been constructed and maintained continuously and without interruption for more than twenty years before the damages alleged occurred, and that it had acquired by prescription the right to maintain the embankment and culvert, and consequently the right to overflow the plaintiffs' land. Therefore the plaintiffs were not entitled to recover for any injuries occurring to their crops by reason thereof.

The fact is established beyond controversy that the railroad company, more than twenty years prior to the institution of these suits, had constructed this particular embankment and culvert, and they had been maintained for a period of more than twenty years in that condition, but it is not conclusively shown that the land was caused to overflow or to have inflicted thereon any positive injury prior to the year 1901, at which time the filling up of the land was first observed.

It necessarily follows from the proof in this case that the cause of the plaintiffs' injuries was created and placed upon this land more than twenty years before the accrual

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