29 Mo. App. 68 | Mo. Ct. App. | 1888
The only question in this case is as to the correctness of the two instructions given for the plaintiff. That question is, was it the duty of defendant, under the facts hypothetically stated in the instructions, to have made in the railroad embankment sufficient openings and water-ways to carry off the surplus water \ The water which overflowed the banks of the Marmaton river and spread over the surrounding country was surface water. McCormick v. Railroad, 57 Mo. 438. The duty of the defendant, under the facts stated, was no greater than would have been the duty of any other land proprietor under the same facts. The question in this case must, therefore, be answered in accordance with the rule relating to surface water, free from embarrassment on account of any other rule or principle of law.
There is an irreconcilable conflict between the decisions in this country concerning surface water. The courts of certain states, in their decisions on the subject, adhere to the rule of the civil law, while the courts of the other states follow what is known as the common-law rule. The decisions of our Supreme Court on this subject have not been uniform. In McCormick v. Rail
The rule of the civil law is thus stated by Judge Dillon: “By the civil law, certain easements, or services (as they were termed by that law), were based upon the relative situation of the premises; and the lower land owed to the higher land the service or servitude of being bound to receive all the water which naturally (without the hand of man) flowed down upon it. The inferior proprietor- could not obstruct the flow to the injury of the superior proprietor, nor could the latter make the servitude more burdensome. Livingston v. McDonald, 21 Iowa, 168. The coimnon-law rule is thus stated by Dixon, C. J. : “The doctrine of the common law is, that there exists no such natural easement or servitude in favor of the owner of the superior or higher ground, or fields, as to mere surface water, or such as falls or accumulates by rain or the melting of snow, and. that the proprietor of the inferior or lower tenement or estate may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon, or off on to, or over, the lands of other proprietors without liability for injuries ensuing from such obstruction or diversion.” Hoyt v. City of Hudson, 27 Wis. 656. The ground of difference between the two rules is thus made clear. Under the civil law there was a natural easement or servitude in favor of the owner of the superior or higher ground, by reason of which the proprietor of the inferior or lower ground was bound to receive on to Ms ground all the sur
Nowhere has the reason, in support of this view of the common-law doctrine been more clearly or forcibly stated than in the opinion of Dixon, C. J., on the motion 'for rehearing in Pettigrew v. Evansville, 25 Wis. 236. In disposing of certain objections made to the original opinion it is said: “ The other objections urged proceed upon what we conceive to be a misapprehension, on the part of counsel, as to the effect of the adjudged cases, as well those in Massachusetts, upon , which counsel rely, as elsewhere. They fail, as it seems to us, to properly discriminate between those cases where the proprietor may, by improvements and structures on his own land, turn away the surface water running thereon from the lands of others, and the case at bar, or the case of a proprietor, who, by a ditch or other artificial channel, proposes to turn his surface water, collected in a stream, directly upon the land of another so as greatly to injure it and destroy its value. In cases of the former class, if the proprietor, in obstructing the flow, or turning away, the water which comes from the land of another, changes its direction, as in general he must, and it then runs off upon the land of a third person, where before it would not have run, and causes damage, no action will lie in favor of such third person for the injury. As to such third person it is damnum absque injuria, because the proprietor who obstructs the flow and gives to the water a new direction is acting in pursuance of a strict legal light. It is his right to occupy and enjoy his own land wdthoflt the inconvenience or damage resulting from the surface water flowing thereon from the lands of others,
We have quoted at such length from the opinion by Judge Dixon in order to show the difference in principle between those cases where the proprietor simply obstructs and turns away surface water which would otherwise flow onto his land from the lands of others, and those cases where the proprietor precipitates surface water, which has accumulated on his land, in a body or increased quantities upon his neighbor’s land, for the reason that the plaintiff’s counsel seek to apply the principle of the latter class of cases to the present case, whereas in our opinion that principle is not applicable to the present case. In the present case, the defendant, as the inferior proprietor, simply protected itself from
Judgment reversed and cause remanded.