
    DRAINS AND DITCHES — RAILROADS.
    [Richland (5th) Circuit Court,
    January Term, 1910.]
    Taggart, Donahue and Voorhees, JJ.
    
       Sandusky, Mansfield & Newark Ry. v. Anna Henry et al.
    Accepting A County Ditch by Abutting Owner Relieves Railroad Company of its Obligation to Ditoh.
    A railroad company which has, as part consideration for a right of way grant, contracted with the abutting owner, to maintain a ditch and dike along the right of way, is released from the obligation of such contract when a county ditch is subsequently located along such ditch and brings to it other waters not otherwise draining into it and such abutting owner or his successors in title have notice of the establishment of such county ditch and pay the assessment imposed for its construction, and later pay another assessment for cleaning out such county ditch.
    Error to common pleas court.
    
      Cummings, McBride & Wolfe, for plaintiff in error:
    
      C. H. Workman and B. E. Hutchinson, for defendant in error:
    
      
      Reversed, no op., Sandusky, M. & N. Ry. v. Henry, 87 O. S. 000; 57 Bull. 503.
    
   PER CURIAM.

This is the second time this cause has been in this court upon error. The original action out of which this proceeding grows was brought by Anna Henry, widow of Benjamin Larimer and Fayetta F. Larimer for herself and as guardian of Blanche Larimer, child of Benjamin Larimer, to recover damages from the defendant railroad company for failure to maintain a ditch and dike along its right of way, adjacent to the real estate owned by said plaintiff, which it is claimed the defendant company, as a part consideration of the grant of said right of way, agreed,and contracted to do with the then owner, Robert Larimer; said contract being a covenant to run with the lands.

The defendant for a first defense admits it is a corporation and denies the allegations in the second amended petition and for a second defense says in effect that in 1892 the board of county commissioners, in a proceeding on the petition of J. R. Crabbs, et al., established a county ditch over and along said premises and oT'er and upon a ditch opened bv it along its right of way, the same being the ditch referred to in the plaintiffs’ second amended petition. And that by means of said ditch, so constructed by the board of county commissioners, a large territory of land was drained of waters that did not naturally flow into the ditch opened by the railroad company.

In the establishment of such ditch the predecessors in title of the lands now opened by plaintiffs were duly notified and assessed for benefits and paid the same; th^t this ditch has been, since that time, cleaned out by the county commissioners upon petitions filed for that purpose. That at each of said times, the parties owning plaintiff’s land were assessed and paid the same, and that by reason of the establishment of said county ditch over and along defendant’s ditch from the fact that waters from a large acreage of land are now drained thereto, but did not, formerly, naturally flow to that point, they are not compelled by this contract set forth in plaintiffs’ petition to further maintain said ditch or dike. They' further aver that the plaintiff Anna Henry was in possession of this land and entered into a contract with the commissioners, and other landowners, for the purpose of having the same tiled or partly tiled and agreed with other landowners that, if the commissioners would appropriate $100 for that purpose, she, and the other landowners would keep said ditch open and in repair.

When this cause was first before us it was reversed by this court for the reason that a demurrer had been sustained to the second defense. We are still of the opinion that this second defense is good and ought to have been submitted to the jury, and that the court erred in its charge in taking the same from the jury.

First. The contract relied upon by plaintiffs provides that the ditch and dike shall be maintained sufficient to drain and confine the waters naturally flowing thereto. The claim of the defendant is’ that there is a large amount of water now carried by this artificial ditch and other ditches to this point that did not naturally flow there, and therefore it cOuld not be compelled under its contract to maintain a ditch and dike that would take care of all this additional water, nor keep in repair .a dike that might be washed or injured by this additional water.

This was denied; it was a question of fact for the jury and 1 if the jury had found upon this issue in favor of the defendant, the plaintiff could not recover for damages suffered from the overflow of these additional waters.

So, in this respect, it clearly appears that the court was in error directing the jury to disregard the second defense, as appears on page 176 of the charge.

But this court is of the opinion that when the county commissioners established a county ditch over and upon the ditch which the owner of this land had contracted to be opened and maintained by the railroad company, that owner acquiescing therein, and paying his share of the costs, the railroad company was thereby released from further obligation under this contract.

The plaintiffs’ predecessor in title must have known at the time that this county ditch was established, that the land occupied by it must be appropriated by the county for that purpose and that the county commissioners would have charge of i said ditch; that it would be cleaned and kept only in the manner provided for by law; that if additional waters were to be conducted to this ditch it would bring additional debris and deposits into the ditch and require additional labor and expense in remov- ' ing the same, all of which was not contemplated in the contract of the railroad company. And by paying the assessment without protest or complaint in any manner that appears from the record, or advising the commissioners of his contract with the railroad company to maintain such a ditch, the owner of the land must be held to have admitted that the construction of such ditch was a benefit to his land, over and beyond the benefit secured to him by the contract of the railroad company. Otherwise, he should not have been required to have paid any part of the cost of the construction of the same. And the same is true as to cleaning out of this ditch. The owner of this adjacent land was assessed for the payment of the same; so that it clearly appears that, for years, the owner of this land recognized that the obligation of the company was ended and that thereafter the county would be compelled to clean and maintain this ditch, and for that purpose had the right to assess adjoining proprietors.

In order that defendant in error may test this question in the, Supreme Court of Ohio, we are disposed to hold that this judgment is contrary to law, instead of holding that it is against the manifest weight of the evidence.

Therefore, this judgment is reversed for the error . of the court in its charge to the jury and because the verdict and judgment of the court is contrary to law. Exceptions of defendant in error may be noted.  