Brink v. Kansas City, St. J. & C. B. Ry. Co.

• Decision Date: 30 March 1885
• Parties: ELIJAH BRINK, Respondent v. THE KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

17 Mo.App. 177

ELIJAH BRINK, Respondent v. THE KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

March 30, 1885

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.

Affirmed, less the reduction conceded by the remitittur.

Statement of case by the court:

This is an action to recover damages against the defendant, a railroad corporation, for obstructing natural water courses whereby the plaintiff's lands were flooded with water and his crops destroyed. The material averments of the petition are: That the plaintiff in June, 1879, was the owner of a farm in Platte county, through which defendant's road passed; that on the west of said land, crossed by said road runs a creek called Milton creek, and on the east of the land runs another creek known as Rush creek, both of said streams running due south, the beds of which were always sufficient to drain away all the water flowing into it from any cause whatever before the same were obstructed, as hereafter mentioned, carrying off the same without damage to the adjacent land or crop.

That said defendant built bridges over the two streams, the one over Rush creek, in section 33, known as bridge No. 18, and the one over Milton creek, known as bridge No. 19, in section 32, both in township No. 34, of range No. 51; that the said bridges were so carelessly and negligently built, and the beds of said streams were so obstructed by piling of logs driven in the channel at Rush creek and sawed off between the water and the bridge, and by other obstructions, and at Milton creek by filling the bed of the stream with piling and other obstructions, and otherwise so carelessly and negligently constructing the said two bridges, and so recklessly obstructing the beds of the said creeks as to prevent the free run of the water of the two creeks, as had always been the case before.

That on the 27th day of June last, during and after a heavy rain, the water at the said two creeks was dammed up at the said two bridges, Nos. 18 and 19, and overflowed plaintiff's farm land as aforesaid with the surplus water being diverted from its natural course, caused as aforesaid by the negligence and carelessness of defendant in carelessly and negligently building said bridges, and by the obstructions placed in said stream aforesaid in the building of the same, and that said waters overflowing plaintiff's land, destroyed large quantities of wheat, corn, and other grain; destroyed fences and otherwise greatly damaged plaintiff in a large sum to-wit: in the sum of $1,500, for which he prays judgment.

The answer contained a general denial; and then further pleaded that the waters doing the alleged injury were surface water, falling on high lands east of the plaintiff's farm and flowing down over the surface of the ground on to plaintiff's field; that the natural streams of said creeks were not adequate to the office of carrying off the water that flowed into them on the occasion in question, which was a freshet of unusual and extraordinary character; that the injury to the plaintiff resulted from the incapacity of the banks of said streams to contain the amount of water collected in them from the highlands, and not from any negligence of defendant contributing directly thereto. The answer further alleged that plaintiff's land is swampy, and annually subject to overflow from the waters of the Platte and Missouri rivers near by, and that the injury to plaintiff's land south of the railroad track was occasioned by water backing from Platte river; and that defendant was guilty of negligence in and about Milton creek bridge which caused the water to flow back there from and submerge his land.

The reply tendered the general issue as to the new matter contained in the answer.

The evidence showed that Milton creek and Rush creek flowed from north to south. The former was in section 32, the latter in section 33. Rush creek had its rise about eight or ten miles in the hills, and was a stream of considerable size. Milton creek was a much smaller stream, and with but little water in it in ordinary seasons. Rush creek at the railroad bridge was from fifty to sixty feet wide, and its channel seven or eight feet deep. Milton creek bridge was about twenty-five feet span, and the depth of channel about four or five feet. Between the two bridges the surface of the ground is flat, and the track of the road is thrown up along there in places four or five feet high. The accumulated waters, on the occasion in question, coming from whatever direction they did, broke ultimately through this railroad embankment, and flooded the fields on the south side, destroying plaintiff's crops.

The evidence, pertinent to the question involved in this appeal, is set out in the opinion of the court.

The court of its own motion gave the following declarations of law:

No. 1. The court instructs the jury as follows: The defendant had the right to construct its road over and along the land mentioned in the pleading, and over and across the two creeks in question, to-wit: Milton creek and Rush creek, and to that end might lawfully construct and maintain bridges across said creeks, and each of them, but it was its duty to so construct and maintain said bridges as to permit the water and drift that are accustomed to flow down said streams, and each of them, both at low and ordinary high stages of water, to pass through freely and without unreasonable obstruction. It is not its duty, nor is it required to so construct or maintain the bridges as to permit the water and drift to pass through without obstruction at times of unexpected and extraordinary floods or freshets.

No. 2. If you find from all the evidence in this case that the defendant repaired or reconstructed, or rebuilt said bridges over said streams, and in doing this drove piles in the said streams for supports to said bridges, and suffered the same to remain, or if at said Rush creek said bridge was reconstructed and the piles placed in the stream were left partly above the bed of the creek, and that by reason of said piles or supports being so left, and allowed to remain in said stream under said bridges, the waters of said creek became dammed up, and were diverted from their natural or accustomed channel or course of flowing, and caused them to flow in a new direction along the railroad track of defendant, and that thereby, and by reason thereof, the whole or any considerable portion of the waters of said creeks, so turned and diverted, flowed upon and over the lands of the plaintiff described in the petition, about the date alleged, and by reason thereof plaintiff's crops mentioned in the petition were damaged, then you should find for the plaintiff, unless you also further find that said waters were thus turned and diverted by reason of an unexpected and extraordinary freshet or flood, and not by reason of any want of capacity of said bridges to meet the demands of ordinary stages of high water. If you find for the plaintiff, you will assess his damages at such an amount as would be a fair equivalent and compensation for the damage done to his crops and fences by the waters so diverted and caused to flow upon plaintiff's lands and crops. If the same were destroyed, or wholly lost, the damage will be the fair value of the same on the ground. You may add to such amount interest at the rate of 6 per cent. per annum from the date of the commencement of this suit.

No. 3. If upon the other hand you find from all the evidence in the case, that said bridges were repaired, reconstructed, or supported by the pilings, or if the unused pilings were not cut with the surface of the bed of the creek; still, if from all the evidence you are satisfied that said bridges, at the date the damages are claimed to have been done to plaintiff's crops, were of sufficient capacity, and sufficiently free from obstructions placed there by defendant to allow the waters of said stream to pass without any material obstruction at all times of low and ordinary high stages of water; that at the time of the alleged injuries to the plaintiff's crops there was an unexpected and extraordinary freshet or flood, and because of this, said bridges were unable and insufficient to allow said waters to pass through with their drift and they became dammed up and flowed upon the plaintiff, then he is without remedy, and you must find for defendant.

No. 4. If you find from all the evidence that there was an extraordinary rainstorm, flood, or freshet, and you also find that defendant placed and suffered to remain in these streams or either of them, used or unused piles, and that the piles so placed or suffered to remain therein materially obstructed the flow of the water of these streams at ordinary high stages of water; and that both of these causes, to-wit: the extraordinary flood or freshet and the obstructions of the character aforesaid, at the same time combined and directly caused the waters to flow in a new channel and along the line of defendant's road, and thence into plaintiff's fields, and caused the injury and damage complained of, then the plaintiff is entitled to recover, but in that event he can only be allowed such damages as were brought about by reason of such obstructions under said bridges as would not have occurred had said bridges been sufficient, and only sufficient and adequate to allow the water to pass reasonably free in ordinary high stages of water.

No. 5. If you find from the evidence that plaintiff, or plaintiff and another, placed a watergate at the Milton creek bridge and so constructed or hung the same that it prevented the free flow of water and drift, and this to any extent obstructed and caused the water to flow along the...