226 S.W. 637 | Mo. Ct. App. | 1920
Lead Opinion
This action, instituted on March 31, 1916, was brought by a landowner against the St. Louis and San Francisco Railroad Company and its Receivers, for damages to crops from overflow of water obstructed until it backed over and was held on plaintiff's land by defendants' roadbed and line of railway. The cause of action relied upon is that given by section 3150, Revised Statutes 1909. The petition originally was in three counts, the first alleging damage to crops from an overflow in October, 1914, the second, a similar injury from an overflow in May, 1915, and the third stating another loss on account of an overflow in September, 1915. Upon the trial the suit was dismissed as to the company itself, the cause proceeding against the Receivers who were shown to have been in charge of and operating the railway, having been put in charge thereof, in April, 1913, and who have been in charge thereof ever since. At the close of the case, a demurrer was *685 offered by the defendant Receivers to the evidence under each count. The court indicated that it would sustain the demurrer to the second count because the evidence conclusively showed the overflow of May, 1915, was from a flood or rainfall of unusual and unprecedented character, whereupon plaintiff dismissed the second count, leaving the case standing upon the first and third counts wherein plaintiff asked judgment for $562.50 and $525 respectively. The court overruled the demurrers to these counts and submitted the case to the jury. A verdict for plaintiff was returned for $281.25 on the first count and $262.50 on the second. The Receivers have appealed.
Grand River, in Henry County, at the locality involved herein, flows almost south but somewhat in a southeasterly direction and is crossed by the railroad on its bridge. From this bridge the river flows in a more southerly direction. The railroad, at said locality, runs from the northeast to the southwest, that is, as the railroad on the north or east side of the river approaches said stream it does so from a northeasterly direction, and from the crossing point, runs southwesterly and then southerly until, at a distance of about a half mile south of the bridge, it reaches high ground, much higher than the banks of the river and wholly out of reach of any overflow of water therefrom.
Deepwater Creek runs in an easterly direction toward Grand River and empties into the latter at a point about 300 feet above the railroad bridge. Plaintiff's farm of 110 acres lies south of Deepwater Creek, and Cooper Creek, running north into Deepwater, forms the eastern boundary of said farm. As thus located, plaintiff's land is about a mile west of the nearest point of the railway track as it runs from the bridge in a southwesterly direction and curves to the south on its way to the high land above mentioned.
In addition to the drainage into Grand River afforded through Cooper and Deepwater Creeks, flowing as above indicated, there is a natural drain across the territory *686 lying south of Deepwater and between plaintiff's land and Grand River. This natural drain began not far east of Cooper Creek and, prior to the construction of the embankment, ran eastwardly into Grand River at a point about a quarter of a mile south of where the railroad bridge is now located. This natural drain consisted partly of a "chain of lakes," (to use an expression of the witnesses) and a depression connecting them and continuing on to the river. The railroad, from the bridge southwest and south over the above mentioned territory lying between plaintiff's land and Grand River, was constructed on a solid embankment fifteen feet high having no openings therein and running from the south end of the bridge to the high ground above mentioned. Said embankment crosses said natural drain about a quarter of a mile south of the bridge. At the point where the embankment crosses said drain, the latter is six feet deep and about 200 feet wide and the embankment forms a solid dam across it. The bottom of the drain at this point is about fifteen feet lower than the ground at the south end of the bridge. The ditch running along the west, or northwest and upper, side of the railroad embankment from the drain toward Grand River, is grown up with small trees, etc.
The bridge across Grand River is about 250 feet in length and is 25 feet above the river, but plaintiff's evidence shows that two of the piers are out in the course of the river's channel and carrying capacity, and they obstruct the water as it flows under the bridge. There was no evidence to contradict this. When Grand River got high, the water which did not pass out under the bridge flowed out along the embankment in the so called ditch alongside it into the drain and was there held by the embankment along with all other water, surface or otherwise, that came through the drain across the territory hereinabove mentioned. And when water was thus impeded at the bridge, it increased the water in the channel above so that Deepwater and Cooper Creeks also overflowed into the drain until this backed up and stood *687 on plaintiff's land. Finally after sufficient time had elapsed for the water to pass out through the decreased opening under the bridge in Grand River, the waters thus held back by the bridge and the embankment would escape in that way. But, being so held back, they encroached and stood upon plaintiff's land, and remained there so long that his matured crops were injured and destroyed.
The evidence in plaintiff's behalf is that prior to the erection of the railroad embankment the water flowing in this drain across the territory above mentioned continued on until it emptied into Grand River about a quarter of a mile below the bridge site. Grand River has a large water shed and many tributaries above the bridge, and an immense volume of water comes down it to be carried off even in ordinary times; and the reducing of the channel under the bridge and the closing of the drain (which operated as an assistant outlet in carrying the water further down the river), caused the water to back up to and be held upon plaintiff's land until it eventually escaped under the bridge as hereinbefore stated, and in the meantime his crops were ruined. Prior to the years in question, overflows occurred, and the water held back rose so high that, at the place where the embankment crossed the drain, the water got higher than the embankment and broke it, and on one of such occasions 800 feet of the embankment washed out whereupon the waters went away rapidly. The embankment was replaced and it and the track were strengthened by cables fastened to trees, etc., so that, presumably, for that reason the extraordinarily high flood of May, 1915, did not wash it out. The waters, dammed up in the overflows of October, 1914, and September, 1915, for which the suit was brought, did not break over the embankment, but they rose to a sufficient height to back up and cover plaintiff's land to such a depth and for such a length of time that his crops were destroyed.
A reading of plaintiff's petition will disclose that it does not confine itself to charge that, defendants *688
negligently maintained merely the embankment across the natural drain and failed to keep openings in it and to keep open lateral ditches along it to carry off said water. The petition sets out the situation and surroundings at the locality in question and then charges that the embankment, solid in character and without openings, completely obstructed the waters, surface or otherwise, flowing in said drain and all of them were forced to flow in the channel under said bridge, and that "said bridge is so constructed and maintained that its piers and abutmentsextend into the natural channel of said river and obstruct thenatural flow of waters therein" etc., and that by reason of the obstruction of the natural drain and "the obstruction of the channel of said Grand River by the piers and supports of said bridge" and the maintenance of the embankments on both sides of the river, the waters, surface or otherwise, were dammed up and obstructed. It then charges that it was the duty of defendants to construct and maintain "suitable openings" through and across the right of way and roadbed of said railroad and suitable lateral ditches to connect with said natural drain and with Grand River so as to afford sufficient outlet to carry off the waters, including surface water, at and along "the place and placesabove described;" and that the said water was and is obstructed, and its drainage is rendered necessary, "by the construction and maintenance of said railroad in their manner described." The petition then charged that because of the construction and maintenance of the roadbed and embankments and because of the failure to maintain suitable openings and to keep open lateral ditches as hereinbefore described, so as to afford sufficient outlet to drain and carry off overflow water, surface water and rainfall, the same collected and was dammed up "because of saidobstructions" and plaintiff's crop was damaged. So that it is manifest the petition is not limited to the mere damming up of the natural drain with the embankment but includes also the obstructing of the channel of Grand River under said bridge. It is charged that the petition states no cause of *689
action. This contention rests upon the theory that the case is grounded solely upon the obstructing of the natural drain and that the latter is not such a drain as is contemplated in section 3150. So far as plaintiff's pleading is concerned, as we have heretofore shown, two obstructions, that of the channel under the bridge and that of the natural drain, are alleged; and in view of the fact that the outlet afforded by the natural drain is alleged to have been completely closed up and the only other avenue of drainage, the channel of the river under the bridge, wasobstructed and reduced, we are wholly unable to perceive wherein it can be said that the petition fails to state a cause of action. We think that unquestionably it does; but even if it stated one defectively, it is now good after verdict because no attack was made thereon prior thereto. [Applegate v. Quincy, Omaha, etc., R. Co.,
The claim that the drain is not within the purview of the statute seems to rest upon more than the mere fact that it is not a watercourse in the sense of a running stream with well defined banks. It is well defined but is not a ditch or a running stream. It does not have to be such to come within the statute. [Pace v. St. Louis, etc. R. Co.,
Indeed, if an embankment collects and holds surface water andprevents it from getting into a watercourse ditch or drain so as to pass off, then it is the duty of the railroad under the statute to afford an outlet to such water, even though the embankment does not actually cross or dam up a drain. For, the purpose of the statute is not merely to prevent the damming up of a drain, but to compel the railroad to furnish an outlet for surface water which, but for the railroad, would reach a watercourse or drain. But defendants' contention goes deeper than the mere objection to the physical characteristics of a drain. Although the embankment obstructs the flow of water from rainfall on the territory drained by the aforesaid natural drain, yet the water which caused the damage to plaintiff's crops was caused by overflows from the two creeks above named and from the river. In the case of Goll v. Chicago, etc., R. Co.,
It will be observed that in the Goll case, as well as in the case of Vanlandingham v. Quincy, etc., R. Co., 206 S.W. 399, the property damaged was on one side of the river while the railroad embankment charged to have obstructed the water was on the other side; and in the case of Adair Drainage District v. Quincy, etc., R. Co.,
The court however refused to sustain the point saying at pp. 75-76:
"But the right to maintain a railroad embankment or other artificial structure in such a manner as to deflect surface water from its usual course, and thereby injure the land of another, has little reference to the substantial enjoyment of the railroad right of way. Nor is it at all essential to the protection of the railroad itself from surface water. It cannot reasonably be contended that a railroad cannot be maintained and operated as safely and as conveniently over bridge, trestle, culvert, or other opening calculated to admit the passage of surface water, as upon a solid embankment, *694 or that there is any substantial advantage in favor of the latter except that it avoids the expenditure necessary to be made for the construction and maintenance of openings in order that the embankment shall no longer be the occasion of injury to the lands of others."
At page 77 the court say —
"The present regulation is for the prevention of damage attributable to the railroad embankment itself, and amounts merely to an application of the maxim sic utere tuo ut alienumnon laedas. Of course, compliance with it involves the expenditure of money; but so does compliance with regulations requiring a railroad company to keep its roadbed and right to way free from combustible matters; to provide its locomotive engines with spark arresters; to fence its tracks; to provide cattle guards and gates at crossings, or bridges or viaducts, or the like."
and at page 78 say —
"Railroad embankments, stretching unbroken across tracts of land that are liable to injury from surface waters, differ so materially from other artificial constructions and improvements to which the doctrine of the "common enemy" applies, that there is very plainly a substantial ground for classification with respect to the object of the legislation."
So that it would seem the statute clearly does require the railroad to make openings for water which its embankment keepsfrom going into a watercourse and in that way draining off, even if it is overflow or surface water. The cases of Goll v. Chicago, etc., R. Co., and Adair Drainage District v. Quincy, etc., R. Co., supra, do not purport to overrule or disturb the Cox or Tranbarger cases, nor is it to be conceived that they judicially repeal a plain provision of the statute. On the contrary, the reason of the holding in the Goll and similar cases is because, under the facts in those cases, there was no watercourse intowhich the obstructed water would have drained had openings been made. *695 Hence the embankments in those cases were not preventing thewater from getting into the Missouri river or into a ditch, drain or watercourse with which the statute says the railroad must maintain connections. . . .
The fact that plaintiff's land does not adjoin or abut upon the railroad, cannot prevent or defeat his recovery. The statute in giving an action for damages, does not limit it to adjoining landowners, though the right to construct the ditches, etc., and sue the railroad for the expense thereof if the latter does not build them, is confined to adjoining landowners. But, as todamages caused by a failure to obey the statute, it says the railroad company, or person operating the same, shall be liable for "all damages done by said neglect of duty." The principle necessarily deducible from the language in Cox v. Hannibal and St. Joseph R. Co., supra, and from the holdings in Skinner v. St. Louis Iron Mountain, etc., R. Co.,
Plaintiff's evidence tends to show that the floods of October, 1914, and September, 1915, covered by the two counts, were not unusual or extraordinary, and hence we are wholly without warrant in holding that the demurrers to the evidence should have been sustained on the theory the floods were conclusively shown to be extraordinary or unprecedented.
The defendants did not plead that the floods were unusual or extraordinary. There was no evidence that those causing the damage sued for in the first and third counts were unprecedented but, on the other hand, the *696 evidence is that they were not. So that, as such issue was not in the case, the plaintiff's instructions were not fatally erroneous in not excluding unusual, unprecedented or extraordinary floods. . . .
The judgment is reversed and the cause remanded for a new trial. All concur.
Addendum
The case of Adair Drainage District v. Q.O. K.C. Railroad,
We have again carefully examined the record and we find that plaintiff's instruction No. 1 covering the entire case and directing a verdict mentions only the obstruction to the drain without including or saying anything about the obstruction to the river channel under the bridge. We believe that it would be impossible to separate the damage done by the obstruction in the river channel from that done by the embankment. However, we now find that there was evidence on both sides that the bridge was obstructed. Defendants have filed here photographs showing large piers in the bed of the *697 river which necessarily must have obstructed the channel of the river to some extent. Defendants' witness Busch, their assistant engineer, testified that there were two piers in the river channel ten feet square at the bottom and four feet square at the top. The obstruction of the river being conceded, it was unnecessary to submit that matter to the jury.
We also think there is no question but there was evidence tending to show that the embankment obstructed the drain for the reason that there were overflows in previous years and at those times the waters were held back and rose so high at the point where the embankment crossed the drain that the water was higher than the embankment and broke over and on one occasion washed out several hundred feet of the embankment, whereupon the waters went away rapidly. The embankment was replaced and so strengthened and braced that it became indestructible from the ravages of such waters. This constituted evidence of obstruction of the drain by the embankment. [Grace v. M.K. T. Ry. Co., 212 S.W. 41, 42.]
There was no error in the court failing to tell the jury what constituted a "suitable" opening. It was held in King v. Lusk, et al., 196 S.W. 67, 69, that "suitable openings" means "openings of sufficient size to carry such a volume of water as could reasonably be expected to pass through them." There was no evidence in the case at bar of any extraordinary or unprecedented rainfall and that was not an issue in the case. In the case of King v. Lusk, supra, there was evidence of unprecedented rainfall and that there were openings present but they were claimed to have been inadequate. Here it was admitted that the channel of the river was obstructed and that there were no openings. So it is apparent that the question of the suitability of openings was not an issue in the case. Defendants recognized this in instruction No. 1 where they refer to "additional" openings.
We find that there was no error in the trial of the case and the judgment will therefore be affirmed. All concur. *698