180 Mo. App. 169 | Mo. Ct. App. | 1914
Defendant is a railway corporation which built a line of railroad through and over plaintiffs’ land lying in Johnson county. Near these lands there is a wide depression or basin and in building its road over this defendant found it necessary to construct a fill or dam extending into plaintiff’s lands, reaching thirty feet in height at its greatest elevation. A natural hollow or ditch had received the surface waters from surrounding lands and carried them down to a natural outlet, known as Scaly Bark Creek. But defendants’ fill was built across this ditch and across the entire basin without a culvert or other outlet; in consequence of which the waters flowing from rains were dammed into a lake extending back over the entire basin, in some places to a great depth and
Afterwards, defendant constructed a reservoir and also a spillway,leading from the reservoir under its track at a point on defendant’s land west of the west edge of this large hody of water and dug a drain ditch on the north of the fill from the bank of the lake leading to the reservoir and spillway, whereby the water was discharged under the track, across the right of way and onto plaintiff’s lands on the south in such concentrated volume and force as to wash ditches of. great depth and width and practically to destroy the value of much of it. This action was brought to recover damages for such injury and plaintiff had judgment in the trial court.
If there was no more in the case than what we have stated there could be no doubt of defendant’s liability; the law being that while one may protect himself against surface water he cannot so divert its natural escape by collecting it in a body and letting it out over his neighbor’s lands. [Rychlicki v. St. Louis, 98 Mo. 497; Paddock v. Somes, 102 Mo. 226; Grant v. Ry. Co., 149 Mo. App. 306.]
But it was shown that after defendant had acquired a right of way over plaintiffs land it began another proceeding against plaintiff wherein it sought to have and did have about three acres of his land adjoining its right of way condemned for a reservoir and that it dug a ditch leading from the lake to and through this land to a point where it constructed the spillway under its tracks whereby the overflow water from the lake escaped south onto other parts of plaintiff’s land as stated. In this proceeding plaintiff was allowed as damages the sum of $425, and defendant insists that that sum under the issues in the case, covered every phase of the damages to his land; but that even if it did not, it could and should have done so if plaintiff
It appears that the proceedings to condemn the small tract for the reservoir were instituted before a justice of the peace who appointed three commissioners, and that these assessed damages unsatisfactory to the railway and it appealed to the circuit court. In the latter court the report of damages made by the commissioners before the justice was set aside and new commissioners appointed who assessed damages so small in amount that they were unsatisfactory to the plaintiff and their, report was set aside by the circuit court and a trial then had in such court with the aid of a jury and a verdict rendered against the railroad company for $425. Before this last trial the railway company had appropriated the land, by constructing’ the reservoir and spillway. And in the course of that trial every element of damage to plaintiff arising from the reservoir and spillway was seen, realized and considered.
Plaintiff seeks to avoid such bar to his present claim by the insistence that it was not tried in the former proceeding. In this he is in error as a matter of fact. He says that in the first action “the investigation was confined to the land taken, the construction of the reservoir and the effects thereof on the market value of the whole farm, without reference to any condition that might result therefrom affecting, the lands on the south side of the right of way, subsequent thereto, or at any time whatever.” The record of the former trial in no way supports that view. On the contrary the evidence taken at the other trial and the instructions thereon show that every issue as made by the evidence in this case, was considered and contested at that time.
In the first place plaintiff and others testified in this case as to the damage to the whole tract, north and south of the railroad, in consequence of the reservoir
The foregoing demonstrates that the parties actually contested the cause of action in the trial of damages for the condemnation of the land for the reservoir. But if we should concede they did not do so in point of fact, yet it is manifest they might have done so, and that concludes them as well as if they had done so. The injurious effect of the reservoir and the spillway throwing the water on plaintiff’s land was apparent and the damages were susceptible of being then estimated. The nature of the injury was permanent and
The result of the foregoing views is to reverse the judgment.