Gorman v. Chicago, Burlington & Quincy Railroad

166 Mo. App. 320 | Mo. Ct. App. | 1912

CAULFIELD, J.

(after stating the facts). — As the plaintiff’s counsel makes no claim that the petition states a cause of action under the statute .(Sec. 3150, R. S. 1909), we will not so consider it, but will treat it, as they treat it, as an attempt to state a cause of action at common law. As to the Statute of Limitations, the rulé, as we deduce it from the authorities, is, that where the nuisance is a permanent structure which causes damage and is bound to continue to do so as long as it remains the same, then the entire damage, present and prospective, accrues as soon as such actual damage begins and is discoverable, and is the *327subject of a single action, which must be brought within the period of limitation after such accrual. [Bird v. H. & St. J. Ry. Co., 30 Mo. App. 365; Powers v. St. L. I. M. & S. Ry. Co., 158 Mo. 87, 57 S. W. 1090; James v. City of Kansas, 83 Mo. 567; Fowle v. New Haven & Northampton Co., 112 Mass. 334; Town of Troy v. Cheshire R. R. Co., 3 Foster (N. H.) 83; Powers v. The City of Council Bluffs, 45 Iowa, 652; Stodghill v. The C. B. & Q. R. Co., 53 Iowa, 341.] Applying this rule to the facts disclosed by the petition we are of the opinion that the plaintiff’s cause of action, if she or her predecessor in title ever had any, for the mere stoppage and overflow or backing up of surface water, is barred by the Statute of Limitations. That particular form of damage was due solely to the erection and maintenance of the embankments without openings, etc. Whether the five or ten-year statute applies, we need not determine, as the time which,has elapsed is greater than required by either. Such embankments were so erected in 1893, more than sixteen years before this suit was brought. They were railroad embankments, “solid embankments about fifteen feet high,” which are “about as permanent as anything that human hands can make.” [Stodghill v. The C. B. & Q. R. R. Co., supra.] The natural lay and conformation of all the ground in the vicinity was such that the drainage of the surface water was towards the place where the embankments were erected, so that necessarily and immediately they caused such water to back up and overflow the plaintiff’s land. From the facts and circumstances stated in the petition it must have been apparent that it would continue to have that effect as long as the embankments remained the same. Plaintiff makes this certain by alleging “that by reason of the overflow of plaintiff’s said property and its liability to be so overflowed as aforesaid neither plaintiff nor the said Francis G-orman was able to sell or lease said property or to use same for any purpose or de*328rive any income therefrom since the date of the construction of said embankments

With this view of the case it is unnecessary for us to decide whether plaintiff or her predecessor in title ever had any cause of action on account of the turning back upon the plaintiff’s land of mere surface water; or whether either of the defendants could be held liable for injury due to an erection made by their predecessor in title, and not by them; or whether the defendant St. Louis and Kansas City Land Company' is liable for injuries due solely to an erection not on its land nor under its control.

But we find on perusing the petition the plaintiff does not confine her complaint to injuries due solely to the erection and maintenance of said embankments or to the turning back and overflowing her land with mere surface water. She goes farther, and charges that the waters gathered by the embankment “stood upon defendants’ property and formed a pond thereon into which defendants’ drain or permit to drain or flow other ivaters, slops and filth from a roundhouse, a boarding house and privies in the vicinity; that said pond overflowed defendants’ said property and onto plaintiff’s said property and at times covers and stands upon the whole thereof, carrying and depositing said filth thereon; that the waters in said pond are and always have been foul and emit foul odors and the deposit of said filth on plaintiff’s said property and the said overflow thereof has depreciated the value thereof $3700.” What would be the effect if it appeared that this filth came down upon the defendants’ land over plaintiff’s land, or came upon defendants’ land without its active permission we need not determine. The petition states no such case. As we interpret this language the word “permit” is not used in the sense of “passively suffered” but it charges the defendants with affirmative action in permitting other waters, slops and filth to drain into the pond and over*329flow it upon the plaintiff’s land, etc. And it charges that both of the defendants are guilty in this respect.

We have no doubt that so considered the petition states a cause of action, and is good against a demurrer, though much of its contents might have been stricken out on motion. While because of the Statute of Limitations already discussed, if for no other reason, the plaintiff cannot now complain that the embankments cause her land to be overflowed by water in its natural volume and state, it i's quite clear to us that to the extent plaintiff has been damaged through the pollution and artificial increase 'Of the waters which overflowed her lands, she has a right to recover against the defendants, they having caused or affirmatively permitted such pollution and artificial increase. [Gould on Waters (3 Ed.), sec. 278; Gawtry v. Leland, 31 N. J. Eq. 385; Lockett v. Fort Worth, etc. Ry. Co., 78 Texas, 211, 14 S. W. 564.] This was not the kind of damage which was a natural and necessary consequence of the original erection of the embankments and it could not have been recovered for in a single suit in advance, as could that which we have held is barred. Of course she cannot now recover for any damage, however caused, which has not accrued within five years before this suit was commenced, (Sec. 1889, R. S. 1909). The judgment is reversed and the cause remanded.

Reynolds, P. J., and Nortoni, J., concur.