Jones v. Wabash, St. Louis & Pacific Railway Co.

18 Mo. App. 251 | Mo. Ct. App. | 1885

Opinion by

Hall, J.

The single question presented by the record in this case, is, whether the facts alleged in the petition and established by plaintiff’s proof, as alleged, are sufficient to constitute a cause of action.

First, then, was the water, alleged to have been obstructed and thereby retained upon plaintiff’s land by defendant, surface water, or was it the water of certain named water courses, to-wit: the sloughs or swales described in the petition ?

We are clearly of the opinion that these sloughs or swales can not be considered as water courses. In Benson v. R. R. Co. (78 Mo. 514), it is said: “The best legal definition of the term, ‘water course’ which I have, found, is that given by Dixon, C. J., in Hoyt v. City of Hudson (27 Wis. 661), ‘there must be a stream usually flowing in a particular direction, though it need not flow continually. It must flow in a definite channel, having a bed, sides, or banks, and usually discharge itself into some other stream, or other body of .water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual or other extraordinary causes. It does not include the water flowing in the hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not in jhe legal contemplation water courses.’ ”

In accordance with this , definition, those sloughs or swales were not water courses as to the water flowing therein, supplied by rains or melting snows. Nor do we think those sloughs or swales were water courses as to the “water flowing over the country, which had escaped from the banks or natural channel of a running stream of water.” If, as to the former water, they were not water courses, then, as to the latter water, they were not water courses. The same rule applies to both kinds of water. If the former water-was surface water, then the latter water was surface water. “The same rule would apply to water flowing over the country, which had escaped from the banks or natural channel of a running stream of water, by reason of a flood in the stream occasioned by heavy rains or the melting of snow upon the surrounding country.” McCormick v. R. R. Co., 57 Mo. 438.

The water in this case was surface water. And the facts alleged in the petition, and established by proof, did not constitute a cause of action. “So it follows that plaintiffs could not recover any damage resulting from the accumulation of mere surface water running from tlieir land.” Benson v. R. R. Co., supra; Abbott v. R. R. Co., 83 Mo. 271.

In this case there was neither alleged nor proved any negligence or carelessness in the construction of the defendant’ s railroad bed, trestles, and track, so as to bring it within the exception made in the case of McCormick v. R. R. Co. (57 Mo. 438).

The judgment of the circuit court is reversed and the cause is remanded.

All concur.