Lawrence L. HAWKINS and Louise S. Hawkins, Respondents, v. BURLINGTON NORTHERN, INC., Appellant (two cases).
No. 58443.
Supreme Court of Missouri, En Banc.
Sept. 9, 1974.
Rehearing Denied Oct. 14, 1974.
511 S.W.2d 593
Appellant has not sustained his burden of demonstrating a lack of rational basis for the legislative classification here attacked. The fact that the Missouri statute might, as appellant contends, have been modeled after the Federal 1970 Comprehensive Drug Abuse and Control Act (
Judgment affirmed.
BARDGETT, P. J., and HOLMAN, J., concur.
SEILER, J., not sitting.
Clyde J. Linde, Billy S. Sparks, Kansas City, for appellant; Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel.
Sam D. Parker, Jack W. R. Headley, Kansas City; for The Atchison, Topeka and Santa Fe Railway Company.
PER CURIAM:
After opinion, the Court of Appeals, Kansas City District, transferred these two cases, consolidated for purposes of appeal, to this court. The opinion was written by Pritchard, J., and made the following disposition of the same:
“These two flooding cases were consolidated upon appeal. The first, No. KCD 26077, was tried in DeKalb County upon the theory of common law trespass for flooding of a portion of 24 acres of land for the years 1951, 1952 and 1953, and resulted in a judgment pursuant to the verdict of a jury for a total of $4,100.00 for the three counts for actual damage. The second, No. KCD 26187, was tried in Clinton County upon the theory of common law nuisance for flooding of a portion of 18 acres of land for the years 1962, 1963, 1965 and 1966. The Clinton County case resulted in judgment after jury verdict in the total amount of $4,956.75 actual and $8,000.00 punitive damages for the four counts of the petition.
The facts which are common to both cases are these: In 1949, Burlington‘s predecessor condemned a portion of 75 acres in order to construct railroad tracks to provide a shorter route between Kansas City and Chicago. Before the condemnation award, respondents bought 75 or 80 acres, which they had rented since 1946, from their aunt. The $10,000.00 purchase price was made up of $6,500.00 from the
Prior to the time in 1950 when Burlington began construction of the line, the natural drainage of the area was from about 340 acres coming out of hills and draining north toward Turkey Creek, down a slope of 3 to 4 degrees. There were then two natural drainage ditches, an east ditch called the Anderson ditch, and the west ditch called the north-south ditch. Respectively, these two ditches drained 240 and 40 acres, and met and joined with what is known as the Hawkins ditch (which drained to the west) below and off of Burlington‘s right of way, adjacent to respondents’ 18 acres claimed to have been flooded. Anderson and Hawkins, in 1947, prior to respondents’ purchase of the land from their aunt, hired a bulldozer to straighten and clean out their ditches, which were then about 12 feet wide at the bottom and 4 to 5 feet deep with a 2 to 1 slope on each side. About 20 acres north of the right of way drained into the ditch below it, about where Burlington‘s culvert was later constructed. As shown by the plats and maps, the Anderson ditch flowed northwesterly, and about where the embankment was later constructed curved to the left and west and flowed directly into the Hawkins ditch. The north-south ditch flowed north and joined the Hawkins ditch at about right angles. The construction of the culvert caused both ditches to join in one stream the Hawkins ditch at about a right angle, not in alignment with any previous drainage pattern, rather than as before, the Anderson ditch (draining the larger area) flowing directly into it, and the north-south ditch (draining about 40 acres) flowing separately into it at right angles.
In 1950 Burlington constructed an embankment 18 feet high through the area of the two ditches, and their course to the south of the embankment was altered so that the flow of water would meet 200 feet to the west of the Anderson ditch and 125 feet east of the north-south ditch, after which the water would pass through a culvert, the original channels of both ditches being thereby blocked on the south side of the embankment. The culvert was constructed of concrete, 8 by 8 feet in size, and according to respondents’ civil engineer expert, Col. des Islets, was properly placed, adequate in size, and the ditches below it were adequate to handle the water, but the problem was in getting the water from the culvert into the (Hawkins) ditch below so that the water would turn 40 to 45 degrees to the left and flow in the right direction. As it was at the time of the trials, Col. des Islets described, in the DeKalb County trial, what Burlington‘s engineer had done in these words: ‘He did a fine job as far as adequacy of size is concerned, but when it come to the outlet he disregarded the nature of the water flow and failed to take care of it the way he should have and put it back in the stream where it belonged. * * * Now, the thing that is happening right now: the water comes out here and hits against this bank. And as it drops down into the bank, it starts a boiling like this and forms a water dam. As it gets higher it forms a water dam. Now, the higher that water comes on the bottom end of that box the less flow will come through the box. This is pretty reasonable. I think anybody can understand that. So the higher this boil comes back up, the slower your water comes through the box. And that‘s the trouble with this thing right here. Now, what it needs is to be projected out here and a 45-degree wall taken here so that it will come down and bounce right off and there is plenty of room for it to get away. As soon as it gets away from there that box will keep flowing freely all the time. As that box flows freely all the time, it will more than adequately drain the area above. * * * Well, what happens: now it washes against that bank and it‘s probably since I saw it probably taking that bank down low enough that the water probably flows right across this man‘s property and seeks a way back in down below here and would in time actually change the whole stream bed right straight
Prior to the time that the embankment was constructed and the ditches were altered, respondents had not suffered crop damage from floods. The first crop loss flooding after 1946 occurred in 1950 while Burlington was putting up the framework for the culvert, which resulted in the framework wood being scattered over the 18 acre tract below the embankment. The tracts involved consisted of bottom land, and respondents conceded that there had been some flooding from rains of two inches, but denied that there had been crop damage before the embankment and culvert were constructed.
Mr. Hawkins testified that beginning in 1950 respondents have repeatedly complained to Burlington about the flooding, and have requested it to remedy the situation but it has refused to make any attempt to remedy it ‘which attitude and posture continues to this day.’ According to him, since the embankment was completed, water backs up to 12 feet deep on the south side of the culvert and floods about 3 acres, then goes through the sloped culvert then on 25 to 30 feet where it hits the Anderson-Hawkins ditch. The water must then turn about 45 degrees (to the left) to go down that ditch, but it does not do so but arches over the ditch bank when 1 1/2 inches of rain fall, which occurs quite a few times in the area where respondents live. Since the culvert was installed, the 1 1/2 inches of rain falling within a short time, causes the water to ‘pond’ above and to the south of the culvert after which it shoots out the lower end of the culvert with great velocity, carrying it over the drainage ditch onto respondents’ 18 acre field below. The water then goes out across the field, up to 2 feet deep, turns toward its west end, and empties into a field north of where Mr. Hawkins had built a bridge across his ditch. Photographs taken in 1954, 1961, 1964 and 1966, show the ditch full of water and water flowing (in quantity) over the 18 acre tract. The 1966 flooding occurred after a rain of 11.2 inches, most of it falling within an hour. According to Mr. Hawkins, when his ditch became full of water it would not flow because the water therein had lost its velocity. ‘The ditch fills up from just a pull of gravity on the fall from this, and it is stopped. There is no place for the water to go with the force it comes down that bridge, except right over the way you have directed it out over that field.’ Mr. Hawkins testified further about the crop damages sustained by him as a result of rains in various years after the embankment and culvert were constructed, but no issue is here made as to damages except for the giving of certain instructions relating to punitive damages, and for the refusal of a withdrawal instruction as to any damage to lands north of the embankment. Thus, the matter of actual damages need not be discussed.
Appellant‘s first point, common to both appeals, is that the judgment should be reversed outright because its duty and liability is governed by
The pertinent part of
The general rule as to exclusiveness of a statutory remedy is stated in 1 C.J.S. Actions, § 6c., p. 976: ‘Where a statute prescribing a remedy does not create a new right or liability, but merely provides a new remedy for an independent right or liability already existing, the general rule is that the remedy thus given is not regarded as exclusive but as merely cumulative of other existing remedies, and does not take away a preexisting remedy, or, as more specifically stated, if a statute gives a new remedy in the affirmative, and contains no negative, express or implied, of the old remedy, the new remedy is merely cumulative; and in such a case, the party having the right may resort to either the preexisting or the new remedy, * * *.’ The general rule applies whether the preexisting right or liability is one previously enforceable at common law, or by virtue of some other statute or constitutional provision; and whether it was previously enforceable at law or in equity; * * *.’ See also 1 Am.Jur.2d Actions,
In Corrington v. Kalicak, 319 S.W.2d 888, 892 [4-7] (Mo.App.1959), a flooding case resulting from the obstruction of the flow of water in a natural watercourse, the court observed, ‘The facts in this case suggest several theories of liability for the damages plaintiffs claim to have suffered: (a) an action based upon negligence (the theory most often relied upon in flooding cases); (b) an action based upon nuisance; (c) an action invoking
Because of the proper application of the common law remedies of trespass and nuisance, the words of the statute requiring the railroad to construct and maintain suitable openings through the right-
Argument is made by appellant that respondents’ position that a wing wall could have been constructed to turn the water down the natural Hawkins ditch is untenable because appellant had no right to go beyond its own right of way for that purpose. It would perhaps suffice to say that the evidence conflicted (in the trespass case) as to whether it was in fact necessary for appellant to have gone beyond its own property for this purpose, and therefore, the matter was for the jury to determine. However, in Cottier v. Chicago, B. & Q. R. Co., 33 S.W.2d 173, 177[2, 3] (Mo.App.1930), it was noted that if the railroad lacked sufficient right of way to build a ditch conduit it was empowered to obtain all the right of way necessary for that purpose, as applicable also to the nuisance case. Along with the general condemnation statutes,
In the DeKalb County trespass case, appellant here attacks Instruction No. 3, which is:
‘Your verdict must be for plaintiffs, on each of the three counts if you believe: First, the defendant in constructing and
It is first said that the instruction contained none of the elements which would set forth a violation of
Appellant says its withdrawal Instruction B, withdrawing the issue of damages to the 18 acres north of the right-of-way, should not have been refused. It argues that the evidence shows that it complied with the ‘open-up’ statute,
Appellant in the Clinton County nuisance case also makes attacks on the verdict directing instructions applicable to the four counts of the petition. The instructions
‘Your verdict must be for the plaintiffs on Count I of their petition if you believe: First, Defendant diverted the waters of the Anderson ditch and the north-south ditch and combined them in a stream funneled through the culvert or box in its roadbed, and Second, during the year 1962 in times of rains of one and one-half (1 1/2) inches or more in a relatively short time said culvert caused the waters to pond and stand at the entrance to said culvert and to be discharged out of the other end over the drainage ditch into, over and across plaintiff‘s field, and Third, such floodings created and left pools of stagnant water, hindered plaintiffs in their farm operations, drowned out and destroyed their crops and substantially impaired plaintiffs’ use and enjoyment of their farm and home, and Fourth, such use by defendant of its property over plaintiffs’ repeated protests was unreasonable. MAI 22.06 modified.’
Appellant again says that this instruction ignores
Instruction No. 2A (and the other verdict directing instructions) follows MAI 22.06, and is modified only to hypothesize the ultimate facts of this nuisance case. There was evidence to support each submission of the nuisance instruction: The creation of a culvert improperly constructed (again without an adequate wing wall to divert the watercourse down the natural Hawkins channel); the ponding of water at the entrance to the culvert, and the discharge of water at its other end over and across respondents’ land. The floodings created and left pools of stagnant water (not stated above, but testified to by Mr. Hawkins), hindered farm operations and destroyed crops which substantially impaired respondents’ use of their property.
In nuisance cases, as in trespass cases, there is no requirement that negligence be the basis of liability. Vaughn v. Missouri Power & Light Co., 89 S.W.2d 699, 702 [1-12] (Mo.App.1935); Blydenburgh v. Amelung, 309 S.W.2d 150, 152 [1-3] (Mo.App.1958). Nor does MAI now require a finding of causation (which appellant says should have been done, but which contention was not set forth in its motion for new trial), nor of actual damages (because as the Committee‘s Comments to MAI 22.06 recite, it is not an essential element to plaintiffs’ case—plaintiffs may be entitled to at least nominal damages).
On the issue of punitive damages, the court gave four identical instructions relating to the verdict-directing instructions, as to the four counts. Instruction No. 6A, being the same as the others, is:
‘If you find the issues in favor of the plaintiffs on Count I, and if you believe the conduct of the defendant as submitted in Instruction No. 2A was wilful, wanton, or malicious, then in addition to any damages to which you find plaintiffs entitled under Instruction No. 5, you may award the plaintiffs an additional amount as punitive damages in such sum as you believe will serve to punish the defendant and to deter it and others from like conduct.’ [This is the form of MAI 10.01.]
In repetition, appellant argues that this instruction was not warranted because, it says, the evidence showed it complied with
After giving consideration to the oral arguments made in this court, the supplemental briefs submitted and the original briefs filed in the Court of Appeals, we believe that the opinion of that court, herein quoted verbatim, properly disposed of all issues on appeal. The parties, in very comprehensive and exhaustive briefs, have cited most every available case to sustain their respective positions; but, necessarily, they recognize that the authoritative force of each must be measured by the facts upon which it was ruled. Nothing could be gained by further discussion of the precedents mentioned in the opinion of the Court of Appeals, and we do note that appellant has not suggested that any controlling decision has been overlooked.
We do observe, nevertheless, that appellant has based its argument on the assumption that it had complied fully with
The judgments in both cases are affirmed.
SEILER, Acting C. J., and MORGAN, BARDGETT and HENLEY, JJ., concur.
FINCH, J., dissents in separate dissenting opinion filed.
STOCKARD and HOUSER, Special Judges, dissent and concur in separate dissenting opinion of FINCH, J.
DONNELLY, C. J., and HOLMAN, J., not sitting.
FINCH, Judge (dissenting).
I respectfully dissent from the principal opinion herein.
In the case of White v. Wabash R. R., 240 Mo.App. 344, 207 S.W.2d 505 (1947), Judge Cave, writing for the Kansas City Court of Appeals, reviewed the subject of
“But plaintiffs contend that, even under the common-law doctrine, the dominant proprietor, in his fight against surface water, cannot collect the same in a large body, conduct it by artificial means, as by a ditch, and discharge it upon the servient estate in an increased volume. That doctrine is thoroughly established in this state when certain facts exist. Tucker v. Hagan, Mo.App., 300 S.W. 301, 303; Kiger v. Sanko, Mo.App., 1 S.W.2d 218; Farrar v. Shuss, 221 Mo.App. 472, 475, 282 S.W. 512, and many other cases cited in those opinions. But when those cases are analyzed they do not involve a consideration of
Sec. 5222, RSMo 1939, Mo.R.S.A. , and are not decided upon the rights and obligations which that section gives and imposes upon a railroad company. Those, and similar cases, are discussing and deciding a situation where the owner of the dominant estate (not a railroad company) collects surface water in an artificial ditch or pond and discharges it upon the servient estate at a point where there is not a natural watercourse. In other words, the dominant estate does not permit the surface water to follow the natural contour of the land and flow onto the servient estate in a multitude of places, but rather collects the same into a concentrated area and discharges it in a large volume upon the servient estate at a point where there is no natural drain on the servient estate to carry it away.“However,
Sec. 5222 , supra, requires the company, within three months after the completion of the construction of a railroad in any county in the state, ‘to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and 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, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad; * * *.’ (Italics supplied.) Thus the railroad is required by statute to construct and maintain suitable ditches and drains along its tracts or right-of-way for the very purpose of collecting surface water and draining it into other ditches, drains or watercourses where it will be carried away. This is an obligation not required of other owners of a dominant estate.”
Shortly thereafter, this court decided the leading case of Smithpeter v. Wabash R. R., 360 Mo. 835, 231 S.W.2d 135 (Mo. banc 1950). Plaintiff had obtained a verdict for damages resulting from floodwaters produced by the impoundment by the railroad of waters from Wakenda Creek including surface water. Recovery was made on the basis that the opening constructed by the railroad in its embankment pursuant to
“The statute,
Sec. 5222 , made it the defendant‘s duty ‘to cause to be constructed and maintained suitable openings across and through the right of way and 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, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary bythe construction of such railroad,’ etc. The defendant was under the statutory duty to maintain suitable openings through its right of way (to connect with the Wakenda watercourse south of its track) to afford sufficient outlet for the water, including surface water, because the draining and escape of that water is naturally obstructed by the railroad embankment unless the railroad permits it to pass through to the south side. No railroad may dam up a flowing watercourse. No railroad may back up the water flowing in a natural watercourse. The opening under its bridge must be sufficient to permit all water coming down the watercourse to flow through the railroad embankment, even in flood times. Jones v. Chicago, B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5; Goll v. Chicago & A. R. R. Co., 271 Mo. 655, 197 S.W. 244; Brown v. St. Louis & S. F. R. Co., 212 Mo.App. 541, 248 S.W. 12. Under this statute a railroad must have an opening through its embankment sufficient to let through the water, including surface water, which reaches its embankment. When the water reaches the railroad embankment it must either be permitted by the railroad to get through the embankment or it will (as it did in this case) flood the land above.”
The railroad contended that plaintiff had not shown that there were sufficient ditches, drains, or watercourses below the railroad embankment sufficient to carry off the water coming through defendant‘s embankment. For this reason, said the railroad, plaintiff was not entitled to recover damages on the basis that the opening was not sufficient and had caused impoundment of the water above the embankment. This court overruled that contention, saying l.c. 141:
“We do not agree that a railroad‘s duty is so limited under that statute. Analysis of the statute discloses nothing therein which limits the railroad‘s duty to passing through its embankment only such water as can be carried off below. In
Sec. 5222 , we find neither words nor context which warrants any such construction. The statutory duty is that the railroad must construct and maintain ‘suitable openings’ through its embankment, to connect with watercourses, ‘so as to afford sufficient outlet’ (through its embankment) i. e., to permit all water (including flood water) to get through its embankment to the lower side, ‘whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad.’ Jones v. Chicago, B. & Q. R. Co., supra. There is not one word in the statute limiting the water the railroad must let through its embankment to such water as can be carried off within the banks of the drain, ditch or watercourse below the railroad. Nor is there anything in the statute intimating the railroad‘s duty is discharged if the water above the embankment and required to be let through cannot be carried off within the banks of the existing ‘ditch, drain or watercourse.’ The statute does not require the watercourse below the bridge be ‘sufficient’ to carry away water drained through the embankment.“It is required that there be a ditch, drain or watercourse into which the opening in the embankment allows the water to flow. * * * But there is no statutory requirement as to the sufficiency, or the size, or the water carrying capacity of the connecting ditch, drain or watercourse extending below the embankment.”
The court then proceeded to discuss and overrule earlier Court of Appeals opinions which had held that the ditch, drain or watercourse below the embankment must be amply sufficient to carry the water let through the embankment.
The court summed up as follows, l.c. 143:
“To judicially declare that a railroad is required under this statute to pass through its embankment only such water
as will not overflow the ditch, drain or watercourse running from the downstream side of its embankment, in effect, is to declare that a railroad may itself determine the extent of its duty under this statute. That would nullify the statute. Nor can the law be written that a railroad must be able to correctly gauge, under any and all conditions and at all places, or under any circumstances, the adequacy, sufficiency or water carrying capacity of a lower ditch, drain or watercourse, and thus at its peril let only so much (and no more) water through its embankment. Such a construction would place upon the railroad an even greater burden than the instant statute, and, likewise, would circumvent the plain purpose of the statute‘s enactment. The legislative intent was that, under the circumstances stated in the statute, a railroad embankment shall not serve as an artificial dam to back up water upon a dominant owner to the damage of the latter.”
While the court‘s discussion focused particularly on the fact that the railroad‘s obligation to allow all water to pass through the embankment was contingent only on the existence of a ditch, drain or watercourse below the outlet and not upon the size or capacity of such ditch, drain or watercourse, it is clear that the court in Smithpeter and in White was saying that the obligations and rights of railroads are governed by the statute in question. The opinion states that the statute may not be construed or applied so as to impose on railroads greater obligations than those specified in the statute. It follows that the rights and obligations of appellant herein with respect to both impoundment and release of water diverted from watercourses (including surface water) are those spelled out in
Appellant herein contends that the evidence in these cases shows full compliance by it with the requirements of
When
The principal opinion recognizes that, as appellant contends, plaintiffs’ verdict-directing instructions do ignore
As noted above, plaintiffs submitted these cases to the jury on the basis of nuisance and trespass rather than on the basis of breach of the statutory obligations. Even if we assume the correctness of plaintiffs’ contention that they may sue in this manner rather than by employing the rights of action granted in subsections 1 or 3 of
There was also an issue as to whether the court erred in submitting the issue of punitive damages in the Clinton County case and whether the instructions as given were correct. In view of my conclusion that plaintiffs’ verdict-directing instructions in both cases are erroneous, I do not reach the issues with respect to punitive damages.
I would reverse and remand because of error in plaintiffs’ verdict-directing instructions.