Vinginian Ry. Co. v. Mullens
271 U.S. 220 (1926)

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U.S. Supreme Court

Vinginian Ry. Co. v. Mullens, 271 U.S. 220 (1926)

Vinginian Railway Company v. Mullens

No. 163

Argued January 21, 22, 1926

Decided May 24, 1926

271 U.S. 220

Syllabus

1. A railroad company is not liable for floodings of private land resulting from a condition of the railroad structure amounting to a nuisance when the nuisance was created by its predecessor in title, and where the injurious consequences occurred when the railroad had been taken over and was being operated by the government under the Federal Control Act. P. 271 U. S. 223.

2. A plaintiff who has brought and tried an action for damages to his land upon the ground that the defendant was liable as a tortfeasor cannot shift, on appeal, to a theory of contract liability. P. 271 U. S. 227.

Reversed.

Page 271 U. S. 221

Certiorari to a judgment of the Circuit Court of West Virginia,(which the Supreme Court of Appeals declined to review) awarding damages against the railway for injuries to the land of the plaintiff, Mullens, found to have resulted from obstruction and diversion of a stream by a railroad embankment.

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