Tranbarger v. Chicago & Alton Railroad Company

• Decision Date: 10 May 1913
• Parties: HENRY A. TRANBARGER v. CHICAGO & ALTON RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

156 S.W. 694

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 contract between the State and the Louisiana & Missouri River Railroad Company and its lessee; but we insist that the State has the right in the exercise of its police power, from time to time, to make requirements and demands of the defendant and other railroad companies in the interest of the public welfare and of the rights of property of others. Gorman v. Railroad, 26 Mo. 441; Matthews v. Railroad, 121 Mo. 298; Blackmore v. Railroad, 162 Mo. 455; Cooley on Constitutional Limitations (6 Ed.), p. 707; Cox v. Railroad, 174 Mo. 595; McFarland v. Railroad, 175 Mo. 433. Defendant cannot assert the right to obstruct the flow of water in this case by virtue of long occupancy of the site of its line of railroad. To acquire a right by prescription there must not only be long occupancy but an adverse occupancy. Smith v. Sedalia, 152 Mo. 297; 6 W. & P. Jud. Defendant., p. 5521; 19 Am. & Eng. Ency. Law, p. 200; Cox v. Railroad, 174 Mo. 595. (2) The "act of God" must be sole cause of damage. If negligence on the part of the defendant concurs to produce the injury, defendant is liable. Warehouse Co. v. Railroad, 124 Mo.App. 545; Wolf v. Express Co., 43 Mo. 421; Davis v. Railroad, 89 Mo. 340; Prince v. Compress Co., 112 Mo.App. 49. (3) Defendant seems to take the position that no openings are necessary unless there is a natural and usual flow of water at a given point at the time a railroad constructs its roadbed. We do not understand it to be necessary that there be a usual, in the sense of a constant, flow of water to render openings necessary. If there be such a lay of the land that, at times of overflow, which must be expected along river bottoms, water will flow in certain channels or drains, it would clearly be incumbent on the company not to dam up such channels or drains. At the time of the construction of the Chicago and Alton road and through all the intervening years, the lay of the land in question has been the same; a drain along the Missouri river bluffs on the Callaway side.

BOND, J. Brown, Bond, Walker and Faris, JJ., concur; Woodson, J., not sitting; Lamm, C. J., and Graves, J., dissent in toto.

OPINION

In Banc.

STATEMENT BY THE COURT.

Plaintiff's petition states, in substance, that he is the owner of sixty acres of farming land lying in Cedar City, Callaway county Missouri, in what are known as the Missouri River bottoms that it is the habit of said river to overflow these bottoms from the west to the east in times of high water; that defendant's railroad also extends across the Missouri River bottoms from southwest to northeast and along the east line or boundary of plaintiff's land; that the roadbed of its track is constructed of a solid earth embankment; varying in height from four to seven feet, and is not provided with culverts, openings or drains of any kind across, through or under the same for the escape of surface water, but constitutes a solid barrier for collecting such waters and causes them to back over and flood the lands of plaintiff, which would not be overflowed except for that obstruction; that the construction and maintenance of defendant's road in this condition was had and continued for more than three months before the day of June, 1908, when the Missouri River overflowed its banks and its water ran west to east across the bottom until it reached the embankment on said defendant's right of way, which repelled it so that it backed over, across and upon plaintiff's said land, wholly covering and flooding the same, thereby totally destroying eighteen acres of corn of the value of $ 515, five acres of potatoes of the value of $ 450, and twelve acres of wheat of the value of $ 207, and damaging and injuring plaintiff to the aggregate of said sums; that this loss was suffered by plaintiff solely because of the negligent failure of defendant to construct suitable openings across and through the solid embankment on which the tracks of its railroad were laid, and suitable ditches and drains along the side of its roadbed to connect with an...