U.S. Supreme Court
Vinginian Ry. Co. v. Mullens, 271 U.S. 220 (1926)
Vinginian Railway Company v. Mullens
Argued January 21, 22, 1926
Decided May 24, 1926
271 U.S. 220
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.
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.