97 Mo. App. 103 | Mo. Ct. App. | 1902
— It may be seen by reference to 82 Mo. App.. 96, that when this cause was here on a former appeal the petition was in five counts, the first of which was to recover the value of a strip of ground on which was located the defendant’s right of way alleged to have been wrongfully and permanently appropriated. The second was to recover the damages sustained to the plaintiff’s land not so appropriated by reason of its being intersected by said railway. The third was for the unskillful and careless location and construction of the line of said railway and the bridges and culverts thereon so as to alter and impede the flow of water across the plaintiff’s land, causing the water to overflow and stand upon a large portion of the land and render the same unfit for cultivation. The fourth was to recover damages for the injury occasioned by such overflow in the year 1893, and the fifth count was to recover damages occasioned by such overflow in the year 1894.
After the cause was so remanded the plaintiff filed a. third amended petition, omitting therefrom the first, second and fourth counts contained in his former petition and retaining only the third and fifth — denominated in the amendment first and second counts.
The answer to the petition thus amended was a general denial. There was a trial and at the conclusion of the evidence the plaintiff dismissed as to the first count leaving only the second — the same as the fifth in the original petition. The verdict was for plaintiff on that count and defendant appealed.
The record brought before us by the present appeal discloses about these facts, namely: that defendant’s railway from Jefferson City west to Boonville is located on the north shore of the Missouri river and over and along the valley of that river, skirting as near as practicable the base .of adjacent bluffs and hills. The line of this railway between the two- terminal points just named passes through the land of the plaintiff. There is a small stream called “Lindsay’s Branch” starting back in the hills; it runs south nearly two miles to where it enters the Missouri river valley and there, after deflecting a little eastward, resumes its southerly course across a crescent-shaped piece of plaintiff’s land lying between the bluffs and the defendant’s railway track, passing under defendant’s track and from thence into plaintiff’s fields, lying on the south side of such track, a few hundred feet to a point from which it turns west and after going a half mile finally unites with the Bonne Femme.
The defendant’s track for some considerable distance east and west of where it crosses Lindsay’s branch' is laid on an embankment composed of mould, sand, etc., which is from a foot and a half to two feet
A few hundred feet north of the railway track the county road crosses the stream on a wooden bridge. About one hundred acres of the plaintiff’s land abuts against the railway track on the south, on either side of the bridge. A reference to the following map will assist in understanding the foregoing description of the locus in quo:
The law is well settled in this State that waters overflowing the banks of a stream must be regarded as surface water. Abbott v. Railway, 83 Mo. 280; Shane v. Railway, 71 Mo. 248. But in Brink v. Railway, 17 Mo. App. 177, where the overflow complained of was occasioned by the negligent act of the defendant in obstructing the natural water of a stream, it was held there was liability. And to the same effect is Munkres v. Railway, 72 Mo. 514. So the question in the present case is whether or not the overflow damaging plaintiff was occasioned by a negligent act of the defendant in obstructing the natural water of a stream.
It is not to be disputed that Lindsay branch is a natural stream or waterway; and it follows that if, as we think, the evidence tends to show the act of the defendant in placing the piles under its railway bridge in the center of that stream in such a way that when great rains fell in the basin of the stream the volume of the water to be carried off was greatly increased so that the drift brought down from the hills by the current was caught and stopped by the piles and a. dam or “rack heap” was thereby formed above the bridge
The testimony of the witnesses who had been familiar with the stream and its varied conditions for the last forty years was that they had never known it to overflow its banks above the railway bridge until after it was obstructed by the bridge piling. The consideration of this branch of the case has already been extended to & point beyond which we may not go, so that we must content ourselves with stating that it is our conclusion that the evidence was sufficient to justify the submission of the issue to the jury, and that, therefore, the trial court did not err in denying the defendant’s demurrer to the evidence.
The plaintiff; by filing his third amended petition in which only two of the five counts of his original petition were retained. thereby abandoned the several •causes of action stated in those counts. His action as
Without indicating onr opinion as to what would he the effect of. a judgment on the abandoned or. dismissed counts, it is sufficient to say that the defendant was entitled to the same.
We shall, therefore, reverse the judgment and remand the canse with directions that judgment be given for plaintiff on the second count of the third amended petition in accordance with the verdict of the jury, and that judgment he entered for defendant on each of the counts abandoned or dismissed in accordance with the facts and on the fourth count in the original petition in accordance with the verdict returned at the first trial, as well as for the costs that accrued thereon.