*1 244 COURT SUPREME MISSOURI. OP Drainage
Adair District v. O. K. Co. Railroad totally dent. So that the evidence fails sustain the to plaintiff. petition of the The demurrer thereto should [Garrett have sustained. v. Transit Mo. 219 Co., 95-96.] l. c. petition
Whether can amend her she and state a relationship, present different not discuss. The need we judgment he must reversed. to a remand As whether ing plaintiff, of the cause will avail d'owe care to opinion. forecast an will, however, We remand cause. judgment
Let re- reversed cause manded. All concur.
ADAIR QUINCY, DRAINAGE DISTRICT OMAHA S & KANSA COMPANY, CITY RAILROAD
Appellant. One, December 1919. Division including water, Enemy. 1. SURFACE WATER: Common Surfact streams, overflowing water common flood from rivers is a against enemy, right off, persons which all a ward have which, right statute, provided by railroads unless have a otherwise thereon, protect by right-of-way building their erábankments though thereby up even such surface and overflow is' backed water injures crops onto of others. 2. OVERFLOW WATER: Railroad Embankment: Section 3150. 1909) requiring (Sec. 3150, company R. statute a S. railroad openings through construct suitable afford its roadbed so toas carry sufficient outlet to drain and off surface water whenever the draining of such water has been obstructed the construction railroad, apply of the does not when the effect the embankment through constructed railroad river bottom cause is to the surface water to flow towards channel -river and keep away flowing, fromit it. from Drainage 3. -: -: Act. 26 Section of the Circuit Court Drainage give drainage District Act 1913 does district right compel expense, company, a railroad at its own open passage way through up an embankment thrown across the slough old bed of lake river bottom into which rain ' surrounding lands and into drains which waters from the river overflow in times flood. Bridges: Pleading: Engineer’s í. -: -: -: No Flan. Whether Section Circuit Court Act District v. O. K. company applies compel a at all to a mandamus suit to openings through to construct suitable bottom, constructed simply low lands in a river or whether gives district a of action the costs *2 constructing bridge opening, a it cannot be in a manda- ruled allegation mus suit wherein the no and alternative writ contains engineer there is no evidence 'that had for the chief district prepared plan specifications openings, and for such company openings, must build such because by bridges required they by said section to be constructed are act according specifications plans, built to the of the and orders engineer for the district. 5. -: Obstructions in River Channel: Mandamus. In mandamus by cogent proof, relator must make out clear his case and and the right plain writ will clear, not lie unless his thereto is not and doubtful, drainage district, compel so where a sues to a railroad company to remove obstructions channel of evidence shows that at the time of the trial such obstructions substantially, though entirely had been removed, not they did materially, all, injure not cause the water to at if re- drainage ditches, peremptory lator’s go. will writ- Appeal from Adair Cooley, Circuit Court.—Hon. Jas. A.
Judge. Reversed.
Campbell & appellant. Ellison and J. G. Trimble for (1) pleadings In objec state at the: tbe time tion was to introduction of testimony; made quash they motions to the writ were have filed, should appellant’s reply, as sustained! there was re no (2) turn. it were there If drift in true injured river ditch, relator’s an ade had! bias quate remedy law and therefore mand'amus will Bailey Corp. lie. Extraordinary 2 on lib. Rem (3913), p. Bayard edies S. 800; v. U. States, United 127 having’ remedy adequate 246. Relator even at law, injured, if it had been maintain cannot mandamus. State ex rel. v. Gibson, 553; 187 Mr. State ex rel. v. Wurde man, 258; 187* Caruth v. 96 Richeson, 186; S. W. Mr. People Railway, Appellant ex rel. N. Y. 296. perfect bridges take trestle out of rail its way one of solid make earth. This and. MISSOURI. OF COURT SUPREME* v. O. K. Railroad District Vanlandingham directly 206 S. case,
is decided is 655, 271 Mo. Railroad, W. The 399. case Goll v. present applicable as Van as much case landingham case. respondent.
Higbee & Mills for (1) proceeding 5513, This Sec. authorized pp. R. 26, S. 1909', Sections amended plaintiff 249, 250 and 266, Laws district change straighten, widen, out, authorized clean deepen any course alter or flow water, volume any di ditch, district, concentrate, in or etc., out district; or divide or out vert the flow water in improvements building to remove or other fence, in or district, out of said order effect the drain *3 age in and reclamation of the land” the district. Plain tiff is entitled to invoice the of the court to remove to the obstructions flow the surface water of improvements; filling that is, the trestles with Marquette earth v. embankments. Pere Co. B, (Mich.) 303!; 122 N. Wi.' Q: Weilnan. C. & v. Board S.) Supervisors, of (N. 182 Fed. L. R. 291, 1117; A. 31 Drainage 188; District v. Railroad Kan. Co., 99 Riffe Ry. (syl. v. Cyo. 13); Co., 207 (2) W. S. 78 296. bridge Respondent admits that its it rebuilt over large river in 1910, and amount of ac driftwood bridge, in cumulated the channel of river of north it but claims has removed the driftwood. Some of this is still in channel driftwood river. The flow having of water been thus the channel neces obstructed, sarily up with filled covered sand which timbers deposit remain in the bed river. This tire the bed necessarily of the river obstructs flow water deeper the ditch cut no can. than the river. The in the river is lower of the than it. south north of (3) Drainage purpose The was Act enacted effecting the swamp reclamation of overflowed highly salutary repeals lands, is remedial. It common-enemy respecting doctrine of the common law District v. O. K. Railroad respondent surfa.ee The water. has no to con in struct embankments over lands their such solid protected by jury nor Constitution, the Federal deprive property does its Act with process Tranbarger, out due 35<S. law. Railroad v. Rep. affirming: Tranbarger Railroad, C. (cid:127) 46.Mo. to com mandamus suit
SMALL, C. This pel appellant to remove obstructions Chariton openings make in an embankment on River and openings way. right of The embankment is without except The pipe three four feet diameter. west commences about two hundred feet appellant’s bridge river and extends over said southwesterly one-half mile. It consti thence about boundary drainage tutes line of the relator the south built across of an lake district, old the bed depression dry usually which was land, except heavy in times of and was from five rains, to ten feet lower than of the for some bank distance drainage south of the embankment. north and miles, seven the north north district extends County seven thous- about embraces line Adair swamp The Chariton land. overflow and acres of course south crooked in a runs tortuous and River The main ditch the district. through the dis in 1911 extends built *4 was' district emptying river the into south, to trict from north bridge, appellant’s feet north hundred about four west. it to the bends where on the east of the river, side in the bends across built the land This ditch wasi twenty-éight and fee*t wide about was and river, the general deep. river The bottom the feet sixteen of the ditch. bottom ly than the lower about twelve feet contemplated the that plan when of construction This of the ditch the water would bottom arose river the and through the ditch out “scour” and and wash flow SUPREME COURT MISSOURI. OP District v. O. K. deepen widen, ultimately it. thus There not been and had sufficient in the river water flow .to the ditch appreciable spring the extent until summer and it 1915, and in had dirt caved and had accumulated in it to some time. extent charge among writ, in the alternative other things, company wrong in the negligently permitted large fully and and amounts of other material obstruct drift-wood and bridge, flow of. wrongfully near in said and said right-of-way on its embank erected a .solid point twenty high from ment fifteen feet from about two point hundred'feet west to a said about one-half mile west where its thereof, tracks previously piles on trestles, not con did openings through struct connect running drain with south of said lowland rail carry as to so outlet to road, afford drain off accumulating surface water on lands within said by reason district; the flow of thereof said river during high stages of water and the surface ac water cumulating on the lands within embraced said dis drainage, trict from overflowing rain-fall and of s-aid July, river months June 1915, were so up obstructed that the water backed and was caused the lands embraced overflow dis within the crops destroyed trict thereon, and the. ditches partially of relator were with filled sediment and flow of therein ren ditches and dered useless. put charged in
The return matters the alter- Any issue. matter the return was new writ native reply. by*the denied allegations
The evidence, main, sustained damage crops relator, on showed some lands district, ydthin com- overflow *5 K. y. District O. Adair plained been evidence that river had of. There was the years left it when before debris few such; appellant’s constructed, ob- hut was entirely, substantially, re- but structions any substan- to show evidence moved. the failed But drainage damage In district. to the the tial ditch of fact, most relator’s testified that one witnesses flood and: ditches he saw were scoured out- they deeper There before. were wider than were testimony. The embank- no to this was contradiction sixteen to water at ment caused times higher twenty-two it was inches on the north side than embankment, back 'the on the south side up- it, north of where on the longer stood it days It than it some otherwise would have done. along current run also east quite bridge, nearly south where it or turned escaped speed. with accelerated allegation in writ and the alternative There was no plans bridges specifications for no or evidence anv having been madle bv the other structures engineer, or character one, anv or of the size district appel openings embankment, of the compelled comply with the to make to lant would Be peremptory the embankment writ. To remove appellant’s before, trestle was restore the engineers reason $18,000. cost Appeals, For this would estimated appeal to which Citv Court Kansas taken, to this court. transferred was case ditch, showing plat boundaries A bv introduced wav district and part showing it, two south The material relator. ditch, follows: is as more of miles SUPREME COURT OP MISSOURI. District v. O. K. Railroad Co. *6 Drainage District v. O. Adair K. Kailroad granted hearing- the the court After evidence peremptory following’the which, alternative writ, writ, appellant company to remove the ob- commanded the in the river maintain structions “construct andi openings” through right-of-way said suitable road- ‘‘ mile, along ditches about half bed and one said point about two westward hundred feet west River, said over connect with Chariton carry including off the water, drains surface water, may accumulate on so such waters District, will *7 their that relator recover” etc. flow, costs, and appellant the the the
At commencement of trial, objected any to the introduction of “for the evidence writ reason that alternative does contain facts against sufficient cause of to constitute action this ’’ respondent. testimony, appellant At close relator’s the- of quash man- court the alternative of “the to writ moved cas?, in to damus heretofore this and dismiss issued ap- to this which overruled, which court cause,” excepted. pellant at close This motion was renewed excepted to. likewise of all overruled and evidence, on 1909, Revised 3150, I. Section Statutes part, pro proceeding in to at least based, seems be duty com every railroad it shall vides be pany, com- after the three months within , „ , , ., Water. . Surface ... pletion -to con cause road, of its through the openings across and “suitable structed . . . so railroad way of such roadbed and carry outlet to drain off sufficient and as afford along including such surface water, water, such has whenever the rail necessary by of such construction or rendered . fail” corporation . . shall such in and case road; any article, in this time limited “within so to do adjoining such railroad where person owning such land necessary authorized, hereby are drains ditches or MISSOURI. COURT SUPREME OF District v. O. K. days’ writing, giving thirty in such notice, after operator up'on owner railroad, or service said agent nearest station foreman, or section such cause openings, ditches, or culverts trestles to drains, may constructed such owner maintained, and against corporation, company; maintain an action such person failing so construct maintain such any competent jurisdic- ditches in drains, court expenses tion, 'be shall all costs, recover entitled damages, accruing incurred and construction openings, and maintainance of ditches, such drains, culverts or . corporation, trestles; . . and com- pany person failing comply provisions with the penalty this section shall incur a to exceed two hundred damages dollars and be liable all done duty, neglect neglect duty each shall be a separate offense.”
Since this case was tried Division court below, of this Two court, Goll Railroad, Mo. opinion by case similar to the one at Roy bar, 0., thoroughly construed section reviewed deci sions of this court to surface water, and re-affirmed the doctrine that common law, as declared to exist surface, in this State, including water, water from flood *8 overflowing enemy— rivers and is a streams', common against every whose Ishmaelite hand is man and every against man’s is hand it—and that a railroad company, except provided by as otherwise has statute, i: right to make way embankments on and its thereby property, off water surface from ward even though up it is injure to back caused and overflow and crops the lands and plain others. In that the case, a tiff farm owned thei on north side of the Missouri Glasgow, River, near and defendant’s the railroad wa on,the located bottom south side river. As of the originally partially constructed, was on through whipk trestles, the water drained off to the- south, but up, afterwards the trestles were filled with openings leaving out and thereby therein, the water K. District v. O. in times and river, from the obstructed flood, plain up. the the north and to to overflow back did The that said Section 3150 tiff's lands. court held destroy crops plaintiff, been whose apply not had The l. said, no court cause of action. c. 668: ed, the defendant “It to be whether remains considered Statutes. our Revised is liable under Section person deciding, presume, own will without We may right way adjoining ing sue defendant’s the we overlook However, section. cannot under such plain fact that the river between the railroad andi runs under considera The section land. statute tiff’s get purpose clearly rid of the very tion shows tb|e of streams would water surface water prevented run from roadbed, be the judgment, ning in our section, into watercourse. That openings require that shall cannot construed has channel of a made to let water out river whose purpose of drain The our whole obstructed. get age into rivers to be water laws seems Legislature keep it there. We concede may company may provide person or railroad that no yet done streams, it has not the overflow of but obstruct away this least in as cause.” so, such to affect ' presents . here. The same situation itself south on the east sidie of the river end relator’s ditch appellant's bridge some feet four north of hundred appellant’s feet east embankment three hundred wide). (the being hundred feet river itself about one river, on west side of The embankment northwardly up towards bend backed along) eastwardly flow and also caused river, near at or the embankment towards and into bridge. case, as in effect that, So Goll the water here was to cause flow keep it from towards the channel of the river and flowing away this, so it. case, And, *9 injured property was on claimed to have SUPREME COURT OF MISSOURI. v. O. K. District
opposite side of the river from embankment. Follow ing, authority and on case, Groll the Kansas the of City Appeals, opinion J., in an Court Ellison, Vanlandingham, that held one the relator’s witnesses nothing damage in this for the case, recover could crops by his overflow reason [Vanlandingham S. Railroad, shown here. W. 399.] hold, therefore, "We that Section not does judgment authorize the court in this circuit of. case. II. Indeed, learned for their relator counsel expressly disclaim that is founded brief this action upon proceed a Section but assert it is ing require Act, “under
Drainage Act. river obstruction TPTr)0vf,] 0-j? ^ and of the embankment that forms a dam over a nat ural drain that continues on south and with connects river, escaped' always which the floods have staged writ, river.” Tt is not in the alternative evidence, nor shown in the this natural dirain anything slough more than the old bed aof lake or lowland in the bottom west the Chariton River, upon itself, drained the rain water which fed overflowed' the Ever when out its banks. The fact it drained off flood water from land, river, as well as rain water from the did change its character as a surface water drain. supra 668) (l. case, court, p. In the Goll savs : c. good law, change, “In the absence of a reason kept possible water, like should as near within channels, old well defined fast and we shall hold to our rule that Missouri surface overflow water.” words, course,
In other this drain was not a water which, such as creek common law could obstructed, simply drain, but was ivater surface applied which at common as construed law, this *10 TEEM, OCTOBEB „ Drainage Adair District v. O. K. Co. Railroad lawfully by any landowner could State, Railroad, upon [Goll building his land. an embankment pra.] su upon by sections of relied Act page relator are. 26, and Laws 62, Sections seq. et empowers drainage Section 26
Said “to district straighten, change flow, clean out, widen, the course and deepen any or alter . . . ditch, in drain, river, or of district; said ... to or concentrate, out divert divide the of of to flow water in or out districts; said construct maintain main . . . and ditches, lateral and improvements any and works and other deemed neces- sary preserve to and maintain the or of works in out enlarge to construct district; or or said cause to be enlarged any bridges may constructed or and all any ditch, needed in or of said district across right drain, out way, grade, . . . railroad of tract, cut; All or any . . . construct all and im- works of and through provements public high- any . . or over .. way, right way, grade, of or track, railroad fill in cut building any of to remove fence, or district; or out improvements other out and district, of said or acquire right by have the do- control hold, shall nation and purchase, any land, if be, or and need condemn right way, ... out easement, railroad or right way, any ... or for for said district provided, purposes herein or for material be used constructing maintaining . . . for said works reclaiming draining, protecting in said lands supervisors] also [of . shall . Said board district. . right for the district, use of condemn have any property mot without said district land or within report acquired the court on the or condemned damages, assessing benefits and the commissioners provided by procedure that is now law shall follow the property appropriation taken or other for way.” rights telephone telegraph, 256/ COURT SUPREME MISSOURI. OP District v. O. K.
Relator’s contention above lan- guage gives said Section 26' the. district company open right compel the railroad the passage way for water the embankments on right way without its its own ex- consent, its pense, (cid:127) having acquired without first the district purchase so to donation, condemnation, *11 plain wholly provisions is untenable. The of said do, require clearly acquisi- set forth section above' the right purchase by of or donation, tion such condemna- tion. bridges contemplated provides: “All
Section enlargements bridges by already in of this and all act enlarged according to in shall existence compliance be.built and orders specifications plans, the with engineer approved by the the chief district. made or of bridge any . ... be needed a . If over . such corporation, secretary way any of the of of said give corporation supervisors shall such notice. board . . . failure . . such with- . A to construct specified in in the time order” authorizes the such bridge, dis- expense at the to construct the the trict by “which shall railroad, costs be collected board said supervisors corporation, by therefor, suit said necessary.” if applies all this at the above section
Whether mandamus to whether authorizes does, or it case, if it bridges, compel company to or the railroad build expense against one for the action limits they bridges building constructed been after have necessary drainage questions by district, are allegation no because there for us is to' decide, engineer chief no alternative writ and evidence'that plans prepared any any one ever relator openings bridges, for the specifications for such by made appellant’s commanded be in “bridges” other such No than this in case. the writ required plans with such are accordance are in v. O. District K. paid by by company for or built tbe said Sec- tion 30*. simply, general in retains ex- terms,
Section 62 all isting rights, given remedies, etc., dis- liens, by repealed by tricts are statute act, provides addition those- the act created itself and liberally that the act and shall construed. remedial nothing there So Act to that, support proceeding under in this review case. applies only
III. ob been "What has There is also- struction the embankment. com plaint by relator obstructions writ alternative But channel the river itself. evidence obstructions the time the trial shows such substantially, entirely, although removed, they not cause the did , , , in River. Obstructions (cid:127) -n injure materially, water to at all, if according relator’s In ditches. to the fact, evidence of relator’s witness saw tkiem before and after who *12 July, thereby flood June and the ditches were 1915, deeper washed “scoured as out,” to wider and so they than by plan as before, were intended their of construction. There evidence that the flow is some impeded may in the ditches been lrnve some probably may extent, but, if this so, have been, was, by appellant the embankment for is which not appreciable by liable, not, to debris extent, says “prac relator’s witness tically” proof requires all removed. burden cogent by relator to make out case clear its evi extraordinary remedy, dence. Mandamus an is plain lie relator’s unless thereto is will dear, [State, l. not doubtful. ex rel. Mo. Gibson, v. rel. 553; c. State 205 Mo. McIntosh, ex State 610; Bridge Mo. Hud State ex rel. v. Co., 74; ex rel. v. 255.] 226 Mo. l. c. son, SUPREME COURT MISSOURI. OF Attorney-General v. ex Sanderson.
State rel. opinion lower are of court have We should de- peremptory nied the re- writ. The case is therefore versed. Ragland,
Brown and concur. GO., opinion foregoing PER CURIAM:—-The Small, adopted opinion All is the court. C., judges concur. At rel.
THE ex FRANK McALLISTER, STATE W. torney-General, v. SANDERSON. JUDSON Banc,
In December 1919. requisite possesses 1. OFFICER: Removal. If an statu- official only tory qualifications, office mis- he can be removed from except performance duties, conduct with the connected of official transgression apart when some from those is made statute duties a cause for removal. Prosecuting Attorney; Suspension- 2. -: -: Disbarment. practice from of the law is *hot statute made re- a cause for moving attorney office.; prosecuting conduct but the his suspended may for which he was be a cause. -:-:-:-¡Continuance During Appeal. S. If judgment temporary admitted of' remains disbarment during appeal,- attorney only effective effect disable practice during period judg- suspension, law unless reversed, question ment is sooner does determine suspension whether as a result of his he be ousted from can attorney. prosecuting office as temporary prac- -: suspension --: License. A equivalent tice law practice. ñ’ot total revocation a license to deprive *13 suspension The simply effect of the is him his, during suspension period. the use of license Suspension Year; Statutory -:-:-: Construction. temporary suspension attorney A practice anof from the year, subject law for one does him to ouster from his office statute, prosecuting attorney. pronounce does penalty judgment such temporary as a suspension, result a of a