                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 93-CA-00342-SCT
ILLINOIS CENTRAL RAILROAD COMPANY
v.
THOMAS W. WATKINS, JR.

DATE OF JUDGMENT:                                     2/22/93
TRIAL JUDGE:                                          HON. GRAY EVANS
COURT FROM WHICH APPEALED:                            HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                              GLENN F. BECKHAM

                                                      RICHARD BENZ, JR.
ATTORNEY FOR APPELLEE:                                PAT M. BARRETT, JR.
NATURE OF THE CASE:                                   CIVIL - PROPERTY DAMAGE
DISPOSITION:                                          AFFIRMED - 3/14/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                       4/4/96




      BEFORE PRATHER, P.J., PITTMAN AND SMITH, JJ.


      PITTMAN, JUSTICE, FOR THE COURT:

                                                       I.

¶1. Illinois Central Railroad Company (hereinafter "Illinois Central") appeals a jury's award of damages in
favor of landowner Thomas Watkins based on Illinois Central's negligence. Specifically, the jury found
Illinois Central to be negligent in its maintenance of a culvert beneath one of its track beds, resulting in
damages to Watkins' crops. The premise of Illinois Central's appeal is that they cannot be responsible for
the acts of beavers on their property.

                                                      II.

¶2. Watkins owned land in Holmes County. Illinois Central owned a portion of land running through
Watkins' property upon which was a railroad track supported by an embankment. A culvert was
constructed through the embankment to allow surface water to flow through. This formerly was a natural
drain. Watkins' complaint alleged that the culvert under the track began "stopping up" around 1986 as a
result of Illinois Central's negligent maintenance of the property. Beavers built dams consisting of sticks and
mud which obstructed the flow of surface runoff water through the culvert, pooling the water on Watkins'
property. Twice, Watkins notified Illinois Central of the blockage. Twice, Illinois Central cleared the
blockage so the water would flow through the culvert. In the fall of 1991, Watkins hired a beaver trapper;
the obstruction problems stopped soon after this. However, the earlier obstructions caused water to stand,
damaging crops and otherwise interfering with Watkins' farming operations from the spring of 1986 through
the end of 1991. Watkins sued Illinois Central for monetary damages in the amount of $35,000 on the
theory that it negligently maintained its property. The jury found for Watkins and awarded him $15,000 in
damages.

¶3. Illinois Central's main contention is that it cannot be liable for the obstruction created by the beavers
under any correct instruction of the law pursuant to the facts of this case. It argues that the lower court
erred by failing to grant an instruction to this effect and denying Illinois Central's motion for judgment
notwithstanding the verdict. Illinois Central also contends that the lower court erred in granting jury
instruction P-2, which stated that if the jury found that Illinois Central allowed beaver dams in the culvert
which obstructed the flow of surface water, then it was negligent in doing so. Furthermore, Illinois Central
maintains that this instruction basically holds them strictly liable.

                                                       III.

¶4. Illinois Central cites authority from another jurisdiction that in effect states that no private individual can
be held liable for the trespass of animals which are by nature "wild." Seaboard Air Line R. Co. v.
Richmond-Petersburg Turnpike Authority, 202 Va. 1029, 121 S.E.2d 499 (1961) (bridge owner not
liable for damages to a parking lot underneath the bridge caused by pigeons roosting on the bridge).
Notwithstanding Seaboard, Illinois Central has a duty to maintain its roadbed including its culvert, so as not
to constrict the natural flow of surface waters from property of others. Yazoo & M.V.R. Co. v. Scott, 110
Miss. 443, 70 So. 459, 460 (1916), Sinai v. Louisville, N.O. & T.R. Co., 71 Miss. 547, 14 So. 87
(1893). In Yazoo & M.V.R. Co. v. Scott, Scott was the lessee of a plantation through which Illinois
Central's roadbed ran. Scott instituted an action for improper construction and maintenance of the roadbed.
The damage was due in part to the accumulation under the track of gravel, dirt and other debris, and this
accumulation obstructed the flow of water. Illinois Central contended, among other things, that it was not
liable for anything washed on the right of way by the rains or for the natural increase of elevation. This Court
held then, and holds today as well, that Illinois Central must maintain its roadbed with sufficient openings to
permit the flow of surface water.

¶5. Illinois Central has misconstrued Watkins' case. Watkins did not contend that Illinois Central was liable
simply for the activity of the beavers. His theory of negligence is that Illinois Central breached its duty to
maintain its property, that it knew of the beaver obstructions, that it twice unstopped the culvert, and that it
failed in its duty of maintenance by allowing the culvert to become stopped up. Jury instruction P-2, given
by the lower court, clearly manifests the negligence theory alleged by Watkins. Furthermore, the instruction
absolving Illinois Central of liability for the acts of wild animals was properly denied. This is not a wild
animal case. The wild animal defense amounts to a smokescreen covering the failure of Illinois Central in its
duty to maintain its roadbed. Look at the dispute between Watkins and Illinois Central Railroad as a race:
Watkins began the race at the culvert; Illinois Central would begin the race at the beaver dam. The race
starting place is at the railroad bed and culvert, not further down the maintenance track.

¶6. Moreover, Illinois Central contends that our opinion in Georgia Pacific Corp. v. Armstrong, 451
So.2d 201 (Miss.1984), excuses it from liability for failing to maintain its roadbed. Armstrong sued a lower
landowner and a timber company alleging that logging operations on the lower property impeded the natural
flow of water. This Court held that an upper riparian landowner may secure judicial relief if a lower riparian
landowner obstructs the flow of a stream or watercourse thereby causing the former's lands to flood. The
burden is upon the plaintiff to show that the acts of the lower riparian landowner were a substantial
contributing cause of the damages he suffered, and redress for this situation may be in the form of damages
and an injunction. Id. at 205.

¶7. Illinois Central maintains that the importance of this opinion was the Court's consideration of
Armstrong's entitlement to equitable relief. The Court ordered the defendants "to remove only those
obstructions from the canal that were cut with a saw or were used to build the bridges ... and the silt or
other obstructions that have accumulated thereon." Id. at 207. Furthermore, the Court said:

      The evidence shows that prior to the timber cutting operation, the condition of the canal ... was in
      some state of disrepair due to beaver activity in the area and natural erosion. The injunction does not
      require Georgia Pacific to remedy the damage done to the canal by natural causes.

Id. at 207.

¶8. We find Armstrong not to be in conflict with the case sub judice. In Armstrong we affirmed the
chancellor's finding that the defendants' logging operation was the sole proximate cause of Armstrong's
inadequate drainage. The injunction tracks that finding. It is not a ruling that landowners are not responsible
for natural causes. To hold as such in the case at hand would arguably absolve railroads from their duty to
maintain roadbeds if, for instance, a log floated into the culvert and obstructed the flow of water. In
essence, such a holding would severely curtail the maintenance duties of a railroad.

¶9. Illinois Central also implores us to consider the case of Roberts v. Brewer, 290 Ala. 329, 276 So.2d
574 (1973). The complainants filed a bill in equity court to abate the nuisance created due to a beaver dam
on Roberts' property that obstructed drainage and caused flooding of their lands. The Supreme Court of
Alabama affirmed the chancellor's order which denied monetary damages and a portion of the equitable
relief sought by the plaintiff. The chancellor found that the defendant "has no legal liability to remove the
obstruction to said stream formed by the beaver dam, and that Complainants' prayer for relief that
Respondent be ordered to remove the dam located on his property should be denied, but that
Complainants have shown by their evidence and testimony a right to equitable relief." Id. at 579. The
chancellor's equitable relief consisted of an order that the plaintiff be permitted to enter upon respondent's
land for the purpose of removing the beaver dam. Id. at 582. Illinois Central contends that such relief is the
proper remedy in the case at bar. Such a remedy may well cause more problems than it solves and more
litigation than anyone would desire.

¶10. We decline to apply this holding in a case where a railroad has a duty to maintain its culvert so that the
flow of water is not obstructed. In fact, we note the Alabama case of Tennessee, A. & G. Ry. v. Cardon,
27 Ala.App. 585, 177 So. 171, 172, cert. denied, 235 Ala. 53, 177 So. 173 (1937), as being more
applicable to Illinois Central's situation. In Cardon, the court found that a cause of action existed against the
railroad when its culverts became clogged, and the railroad, having notice of such condition, allowed it to
remain in that condition. Id. at 172.

¶11. Illinois Central had a duty to maintain its culverts. The evidence shows that mud and sticks obstructed
the culvert, Illinois Central knew of the condition and allowed it to remain. A jury could find that Illinois
Central was negligent in maintaining its property from these facts. Jury instruction P-2 adequately addresses
this theory. Furthermore, Illinois Central's peremptory instructions stating Illinois Central's lack of liability for
the acts of wild animals were properly denied. The judgment of the lower court is affirmed.

¶12. AFFIRMED.

DAN M. LEE, C.J., PRATHER and SULLIVAN, P.JJ., and BANKS, McRAE, JAMES L.
ROBERTS, Jr., SMITH and MILLS, JJ., concur.
