47 Mo. App. 383 | Mo. Ct. App. | 1892
Lead Opinion
The plaintiff obtained a judgment before a justice of the peace and also in the circuit court, and the defendant by successive appeals has brought the case here for review. The plaintiff seeks to recover damages to his growing crops from the overflow of surface water. The plaintiff in his statement alleged that the overflow and the consequent damage to his growing crops grew out of the failure of the defendant to comply with section-2614 of the Revised Statutes which reads: “ It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, and of any corporation, company or person constructing any railroad, in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains or water courses, so as to afford sufficient outlet to drain and carry off the water along such railroad wherever the draining of such water has been obstructed or rendered necessary by the construction of such railroad. * * * And any corporation, company or person failing to comply with the provisions of this section shall incur a penalty not to exceed $500, and be liable for all damages done by said neglect of duty.”
It appears by the evidence that at the point of overflow the defendant’s railroad is constructed east and
For the defendant the court instructed that the law only required the defendant to construct ditches along the sides of its road of sufficient capacity to take care of the usual flow of surface water, and if the jury found, that the ditches provided were sufficient for that purpose, and the overflow was produced by an unusual rain, storm, then the finding must be for the defendant. The defendant also asked the court, but the court refused, to instruct on the theory that the plaintiff could not recover, unless it was found that the defendant, in turning the accumulated surface water over the plaintiff’s land, acted negligently. And the court also-, refused to instruct that, if there was a natural drain at the place in question, then the defendant was not liable.
The plaintiff’s action was brought and tried on the theory that the defendant, in the construction of its-road, had failed to comply with a statutory duty, and that such failure caused the damage to the plaintiff’s crops. The instructions of the court weré drawn on that-idea.. That the court was right in this, will better appear from a discussion of the instructions asked by the defendant.
The common-law rule as to surface water seems now to be the rule in this state; that is, that surface water is to be regarded as a “common enemy,” and that the owner of land has the right to so improve his land as to
If a hollow or depression as above described is a drain, within the meaning of the statute, then the ■defendant’s instructions ought to have been given. The statute uses the words “drain” and “ditch.” In common parlance the two words are used interchangeably, but technically speaking each has its own appropriate meaning, when used in certain connections. . The word ■ditch is mostly used to designate a trench on the surface of the ground, and the word drain is commonly used in connection with a sewer, sink or other under-surface ■drain. Outside of this we can find no distinctive difference in the meaning of the two words. But, in order to constitute either, there must be a well-defined channel or receptacle for the drainage of water. A mere depression in the surface of the earth, or a swale, with no channel or banks, cannot be called either a ditch or drain. We, therefore, conclude that the court did .right in refusing the defendant’s instructions.
It is also contended that the instructions of the •court are faulty in that the court failed to define the words ditches and drains, as used in the court’s instructions. If the court erred in this, it presents only a case of non-direction, of which the defendant cannot complain.
Concurrence Opinion
(concurring). — I concur in the result reached. The recovery below was for the sum of $5, and the plaintiff’s damages to that extent were clearly shown. There was evidence, which, if found true, would have made the defendant liable at common law, and the action does not in terms purport to be based on the statute, even if it can be construed to be a statutory action. The case is one wherein the errors of the trial court, conceding that there were such errors, did not “materially affect the merits,” and hence we would not be warranted in remanding the case for a new trial, wherein the same result seems almost unavoidable.
I cannot concur, however, in the construction placed upon the statute by my associates.. In my opinion the statute is leveled against the negligent obstruction of surface water, and not against its negligent discharge. It requires the construction of ditches and drains on each side of the railroad to connect with ditches, drains and water courses for the purpose of carrying off the water. Where the water naturally drains off from either side of the road, an artificial drain is not required. The construction of a railroad bank on the side of a slope necessarily obstructs the surface water on the upper side of the bank, but the statute does not contemplate that the railroad company in such a case is bound to build its track on an open trestle, or else connect each of its culverts, wherever the water passes through its bank from one side to kthe other, with an artificial ditch or drain leading to a water course, or if it fails to do so subject itself to a penalty of $500.
Webster defines a drain as “that by means of which anything is drained.” When the statute speaks of
That the railroad company, in the case at bar, permitted the water to run over its bank, at a place where' there was a well-defined drain or draw, with a continual fall to the Fabius river, which was a natural water course, is conceded by all the evidence. Since the railroad company could not enter upon the plaintiff’s land for the purpose of continuing that drain or draw in the form of an artificial drain or ditch to the Fabius river, it wás in my opinion not liable under the statute, although its liability at common law for a negligent collection and discharge of water remained, and furnished an ample remedy.