161 Mo. App. 472 | Mo. Ct. App. | 1912
Plaintiff is the owner of a farm near to defendant’s railroad track. A creek was close by. A part of the farm was pasture land and a part he had planted in corn. The pasture was injured and the corn destroyed by water which he charges defendant caused to flow over it, and this action for damages. resulted. The judgment in the trial court was for plaintiff.
The petition alleges that about the year 1870* defendant dug a ditch from a point where the creek crossed under its'railway track, near plaintiff’s land, to a point south where it again entered the creek, and thereby changed the natural course of the water from the creek to the ditch, and so it remained for more than thirty-five years prior to flooding plaintiff’s land, in 1907. That in consequence of this, the bed of the creek filled up to such extent as to he insufficient to carry off the water that naturally would flow through it in times of high water. It is further alleged.that defendant,- in the spring of 1907, constructed a dam across the north end of the ditch at the place where the creek emptied into the ditch, thereby preventing the water from flowing through, as it had since the ditch was dug, and thereby causing the water to back up and stand on plaintiff’s land, in consequence of which the crops, etc., were destroyed.
The evidence for the plaintiff tended to prove that the ditch at first lacked some fifteen feet of connecting with the creek. But in times of high water
The case may be thus stated: Defendant constructed a ditch near its roadway, up to a point a few feet from a creek which was a natural watercourse. In course of time overflows from the creek cut away this space so as to permit the principal part of the water, naturally finding outlet through the creek, to flow through, the ditch and finally find its way back into the creek a considerable distance further down. That the diversion of a large part of the water from the creek caused the bed to partly fill up and become obstructed. That after thus running in the ditch for -several years, the defendant put a dam across it up
It is thus seen that defendant, in damming the ditch, obstructed an artificial watercourse, which had the resulting effect to injure plaintiff’s crops. The law is stated to be that:
“If the artificial channel is substituted for a.natural one, or is created under such circumstances as indicated that it is to be permanent and to be a watercourse the same as though it was created by nature, riparian rights may attach to it.” [3 Farm ham on Water and Water Rights, p. 2430, sec. 827b.]
The same author (2 vol., p. 1837, sec. 575) again states that:
“In order to make the rule governing the obstruction of watercourses applicable in any case, a watercourse must be found to exist. But if a watercourse, in fact, exists, the fact that it is not an ancient one will not confer a right to obstruct it. And the rule is not changed by the fact that the water was flowing in an artificial channel.”
Judge Cooley said, in Freeman v. Weeks, 45 Mich. 335: “If, by common consent, the ditch was dug as a neighborhood drain and has remained open as a watercourse for a series of years, it ought to be governed by the same rules that apply to the cases of other watercourses.”
In Babbitt v. Safety Fund Nat. Bank, 169 Mass. 361, the court said: “Although the watercourse was artificially constructed, it may be rightfully located and maintained. . . Everybody whose property was liable to be affected by setting back the water had
And the same is decided in Missouri Pacific Ry. Co. v. Keys, 55 Kan. 205.
The foregoing authorities backed as they are by sound reason and justice, lead us to conclude that plaintiff made a case for damages.
Defendant asked a peremptory instruction that plaintiff could not recover, which was refused. Plaintiff’s instruction was based on the evidence in his behalf, and we cannot discover any objection to it. Defendant was given four instructions. A fifth one was asked and amended by the court in an unimportant though, not improper particular. It submitted that although the jury believed the jury believed the ditch conveyed a portion of the waters of the creek in times of high water and that such fact was in some measure responsible for the filling up of the creek and by reason thereof the overflow of water from the creek in 1907 backed upon and overflowed the land of the plaintiff, yet if the jury believed that plaintiff’s loss was occasioned “not by such waters being so backed up and remaining upon and killing said crops, but by continued and excessive rain falls,” etc., the verdict should be for defendant. The words italicized were interlined by the court, and we do not think it was error. Three instructions offered by defendant were refused; our reasons for approving of their refusal appear in what we have written.
We do not go over the reasons assigned by defendant in criticism of the judgment, and the argument based thereon, on account of the fact that what