156 S.W. 694 (Mo. 1913), Tranbarger v. Chicago & Alton Railroad Company

Citation:156 S.W. 694, 250 Mo. 46
Opinion Judge:BOND, J. Per Curiam.
Party Name:HENRY A. TRANBARGER v. CHICAGO & ALTON RAILROAD COMPANY, Appellant
Attorney:Scarritt, Scarritt, Jones & Miller for appellant. Charles M. Hay, J. W. Tincher and Silver & Dumm for respondent.
Judge Panel:BOND, J. Brown, Bond, Walker and Faris, JJ., concur; Woodson, J., not sitting; Lamm, C. J., and Graves, J., dissent in toto. BROWN
Case Date:May 10, 1913
Court:Supreme Court of Missouri
 
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Page 694

156 S.W. 694 (Mo. 1913)

250 Mo. 46

HENRY A. TRANBARGER

v.

CHICAGO & ALTON RAILROAD COMPANY, Appellant

Supreme Court of Missouri

May 10, 1913

Appeal from Cole Circuit Court. -- Hon. William H. Martin, Judge.

Affirmed (as modified).

Scarritt, Scarritt, Jones & Miller for appellant.

(1) The charter and franchise constitutes a contract between the State and the Louisiana & Missouri River Railroad Company and its privies, that is, its lessee. United States v. Railroad, 118 U.S. 327. That a legislative grant is a contract has been repeatedly ruled. Terrill v. Taylor, 9 Cranch, 50; Pawlett v. Clark, 9 Cranch. 332; Dartmouth College v. Woodward, 4 Wheat. 656; Charles River Bridge v. Warren Bridge, 11 Peters, 603; Walla Walla v. Water Co., 172 U.S. 9; Hovel v. Kansas City H. R. Co., 79 Mo. 632; State ex rel. v. Gas Co., 104 Mo. 472. It was not the law of Missouri at the time that franchise was granted, and this railroad built thereunder, that the railroad had to construct ditches or drains through its roadbed to carry off surface water. The statute requiring such drains through railroad beds to provide for surface water was not passed until 1907. Laws 1907, p. 169. At the time defendant's franchise was granted and the road built, the law of Missouri was that surface water was a common enemy against which every land-owner, including a railroad, should protect himself as best he could. McCormick v. Railroad, 57 Mo. 433; Paddock v. Somes, 102 Mo. 226; Ready v. Railroad, 98 Mo.App. 467. The law of Missouri at that time must be read into and forms a part of the contract made by the railroad company with the State. The grant of a franchise to a railroad company carries with it the right to make necessary embankments for its roadbed. Benson v. Railroad, 78 Mo. 504. In addition to this, defendant has acquired a prescriptive right to maintain this solid embankment by reason of the fact that it has been so maintained for over thirty years. Smith v. Sedalia, 152 Mo. 283; Powers v. Railroad, 71 Mo.App. 540; Bird v. Railroad, 30 Mo.App. 365; Ridley v. Railroad, 24 S.E. 730. An attempt by mere statute, without condemnation proceedings or other process of law, to require defendant to reconstruct its railroad at this time and to give an easement through and across its right of way for a watercourse or surface water drainage is, therefore, unconstitutional for two reasons. In the first place, it impairs the obligation of the contract between the State and this railroad, and, in the second place, it would be taking defendant's property without due compensation. Railroad v. Gordon, 157 Mo. 71. (2) There was no drain or watercourse with which to connect railroad ditches or openings. Under the statute upon which this action is based, Sec. 1110, R.S. 1899, as amended by Laws 1907, p. 169, a railroad company is not required to construct openings or ditches either through or alongside its railroad unless there are other "ditches, drains or watercourses" with which the railroad company may connect its ditches or drains and thereby carry away the water. Field v. Railroad, 21 Mo.App. 600; Collier v. Railroad, 48 Mo.App. 398; DeLapp v. Railroad, 69 Mo.App. 572; Graves v. Railroad, 69 Mo.App. 574. (3) The damage to plaintiff in question was caused by a flood. It was not caused by ordinary surface water obstructed in its usual flow by the construction of its roadbed. Under section 1110 in question a railroad company is required only to provide ditches or drains through and alongside its roadbed sufficient to take care of the usual and ordinary flow of water, and is not required to take care of unusual and extraordinary flows of water, that is, it is not required to provide for a flood. James v. Railroad, 69 Mo.App. 437; Coleman v. Railroad, 36 Mo.App. 476; Ellet v. Railroad, 76 Mo. 518. (4) The statute in question places a liability upon a railroad company only when the natural and usual flow of surface water has been obstructed or made necessary "by the construction of such railroad." If there is no natural and usual flow of water at a given point at the time a railroad constructs its roadbed the railroad cannot be held liable for collection of water against its bank at that point if such water is made to commence to flow in that direction long after the construction of the railroad. The statute is a penal statute and must be strictly construed against plaintiff and in favor of the railroad. It does not provide that where a railroad has been built for twenty or thirty years and through some changed condition, that did not exist at the time the road was built, water is made to flow against the railroad embankment, at a certain place, the company may be required under a penalty to reconstruct its roadbed so as to conform to the new condition of things. But the statute only requires these ditches "whenever the drain of such water has been obstructed or rendered necessary by the construction of such railroad." There is no contention in the case at bar that when the railroad was constructed along the place in question there was not any usual or natural flow of water, the draining of which was obstructed by the construction of the road. There is no pretense that any surface water ever flowed or tried to flow across that place until the flood of 1903.

Charles M. Hay, J. W. Tincher and Silver & Dumm for respondent.

(1) The defendant attempts to raise a constitutional question by alleging that the act requiring railroad companies to construct the ditches and openings required by the section under which this suit is brought, is an impairment of the contract embodied in the charter and franchise of the lessor of this defendant, granted to it by the Legislature in 1870. We do not deny that the charter and franchise constitutes a...

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