70 Mo. 359 | Mo. | 1879
Lead Opinion
When this case was here in 1874, (57 Mo. 433,) the court clearly indicated the ground upon which the plaintiff’s right of recovery must be based. The opinion in the case adopted the views of Lowrie, J., in Kauffman v. Griesemer, 26 Pa. St. 415. And I doubt if they can be expressed more forcibly or plainly than in the very language of this eminent judge : “ "Where two fields adjoin,” says Judge Lowrie, “and one is lower than the other, the lower must necessarily be subject to all the natural how of water from the upper one * * Hence the owner of the lower ground has no right to erect embankments whereby the natural How of the water from the upper ground shall be stopped; nor has the owner of the upper ground a right to make any excavations or drains Dy which the How of water is diverted from its natural channel, and a new channel made on the lower ground; nor can he collect into one channel waters usually flowing off into his neighbor’s fields by several channels, and thus increase the wash upon the lower fields. * * if the owner of
These general principles were in truth drawn-from the Roman law, but fully recognized to be sound in English and American adjudications, and were the basis of the decision of this court when the case was here before. As Judge Tories, who delivered the opinion of the court, observed: “The plaintiff complains that the defendant had so constructed its road that the embankment made therefor had collected a large body of surface and overflowed water on the east side of its road-bed, where the same adjoined the land of plaintiff, and that after said water had been so collected in a large body or pond, the defendant negligently and maliciously cut an artificial channel from said body of water through the embankment of its roadbed, and drained all of said large body of water on to plaint
The theory of the present action is based on the following facts stated in the amended’ petition: The plaintiff owns fifty acres of land on the west side of the railroad, and charges that on the east side of said road a large body of water was collected by the embankment on which the road was built, partly from the high lands adjoining, but principally from the overflow of Contrary creek, and the back water from it produced by a bridge over it, built by defendant, which is alleged to be too narrow to allow the water, in heavy rains, to pass through it, and that in 1870 the defendant put a culvert or box or artificial channel, which discharged all the water thus collected upon plaintiff’s land and produced the injuries complained of. As the-plaintiff' took a non-suit because of the instructions given by the court, the Only question for our consideration is, whether these instructions were a fair exposition of the law to the jury, as it had been previously declared by this court, and since the propriety of instructions depends very much on the tendency of the evidence, one way or another, and they are not designed to be mere abstractions, it is proper, in order to determine their propriety, to look into the facts sworn to and those denied by the witnesses at the trial.'
The facts which the plaintiff’s evidence tended to
Supposing these facts to have been established, the liability of defendant to an action for the damages occasioned thereby, is plain if the doctrine asserted in this case before, and in all the cases on this subject, so far as 1 have
There was no evidence whatever to justify such an instruction. It was submitting to the jury a question of fact, upon which all the evidence as to the land before and after the road was built, contradicted the hypothesis which they were authorized to find, and which, from its very nature, was impossible. The object of this instruction, as of the one succeeding it, seems to have been -to impress upon the jury that if the same amount of water would have fallen on plaintiff’s land, without any railroad embankment, that was conveyed to it through this artificial channel made by the defendant, the construction of this culvert or box was no ground of action. But this, as we have seen, is not the law. There is a great difference between allowing the surface water and the water accumulated by the overflow of the creek, to percolate through a thousand or ten. thousand avenues, as it would have done ii no railroad was there to intercept it, and by an embankment gathering it into one pond and precipitating it through a single channel upon plaintiff’s land. And this is exactly what the court declared the defendant had a right to do, in the fourth instruction, and what this court declared in the former opinion the defendant had no right to do.
The fourth instruction is as follows : The defendant and the right-to construct all such culverts or drains as at
The fifth instruction is.as follows: “Though the jury find from the evidence that in June, 1871, the stream called Contrary creek broke through or overflowed its natural banks and passed into the 'basin mentioned, and through the culvert or waterway placed in said basin by defendant, under or across the embankment made by defendant, dividing said basin, and upon plaintiff’s land, and thereby caused the injuries complained of herein,'yet. the jury must find for defendant, unless they further find from the evidence that said stream did, at the time of .the injury so complained of, break through or overflow its banks in the manner and with the effect as above stated, in consequence of improper or negligent construction of the bridge across said stream used as a railroad bridge by defendant.”
This instruction is of the same complexion as the others which were given. It evades the gravamen of the charge, which was the precipitation of a large body of water collected by the road-bed on the plaintiff’s land. It is immaterial how the water got there, whether by natural channels from the hills or highlands, or by back water from the creek; the defendant had no right to concentrate it in a single channel and force it on to plaintiff’s land. This is the doctrine as established by all the authorities, and the sufficiency or insufficiency of the bridge was entirely immaterial, if the back water from the creek did, in point of fact, find its way into this basin. The defendant had a right, undoubtedly, to protect its road, and to do so had
In regard to the evidence excluded, of the witness Rector, the court may have been right on the theory of the case adopted by the circuit court, but I think the evidence was of no consequence, and whether excluded or admitted, was immaterial, since other evidence clearly showed that the elevation ,of the embankment of the road would necessitate a consequent proportionate depression, and this depression would suffice to carry off the back water down to the basin or pond. The evidence, I think, should have been admitted upon the theory which this court sanctioned, but it was not material to a recovery. The judgment will be reversed and the cause remanded.
Dissenting Opinion
Dissenting. — The defendant's road running-north and south bisects an elliptical basin with no outlet, having a superficial area of about eight acres, and its greatest diameter east and west, which annually received the surface watei’ from the surrounding country, and at. its eastern extremity an occasional overflow from Contrary creek.
In.November, 1870, the defendant, in order to protect its embankment on which its track was laid across said basin, put in and through said embankment in the basin an 18x18 inch box, eighteen inches below the ties, to prevent the surface water from so accumulating on the east side of the road-bed as to flood the track. -Six months after this
When this case was before this court in 1874, Judge Varies, in delivering the opinion of the court, said: “ The general rule, however, is, that either municipal corporations, or private persons, may so occupy and improve their land, and use it for such purposes as they may see fit, either by grading-or filling up low places, or by erecting buildings thereon, or by making any other improvement thereon to make it fit for cultivation or other profitable or desirable enjoyment; and it makes no difference that the effect of such improvement is to change the flow of the -surface water accumulating or falling on the surrounding country, so as to either increase' or diminish the' quantity- of such water, which had previously flowed upon the land of the
There can be no question as to the correctness of these views, and I have made such copious extracts from the