Payne v. The Kansas City, St. Joseph & Council Bluffs Railroad Company

Citation20 S.W. 322,112 Mo. 6
PartiesPayne, Appellant, v. The Kansas City, St. Joseph & Council Bluffs Railroad Company
Decision Date31 October 1892
CourtUnited States State Supreme Court of Missouri

Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

T. C Wood and M. McKillop for appellant.

(1) The court erred in refusing to give instruction number 11 asked by plaintiff. There was abundance of evidence that said company had become the successor in the ownership and control of said railroad from and after the year 1870, and had kept up, maintained and repaired said dam. Brown v Railroad, 12 N. Y. Ct. App. 486; Pinney v Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575; Wayland v. Railroad, 75 Mo. 549. (2) The court erred in refusing to give instruction number 13 as asked by plaintiff. Pumpley v. Green Bay Co., 13 Wall. 166; Sinnickson v. Johnson, 2 Harr. (N. J.) 129; Gardiner v. Newburg, 2 Johns. Ch. 162; Angell on Watercourses, sec. 465a; Hooker v. N. H. & H. Co., 14 Conn. 146; Rowe v. Bridge Co., 21 Pick. 344; Stevens v. Canal, 12 Mass. 466. And the existence of the power to so take private property may be raised at any stage of the proceedings. City of Hopkins v. Railroad, 79 Mo. 98. (3) The court erred in refusing to give instruction number 14 prayed for by plaintiff. Givens v. Van Studdiford, 4 Mo.App. 498; s. c., 72 Mo. 129. (4) The court erred in refusing to give instruction number 15 on the measure of damages prayed for by plaintiff. Pinney v. Berry, 61 Mo. 359; Givens v. Van Studdiford, 86 Mo. 149; Dillon on Municipal Corporations [3 Ed.] note 1 to sec. 1038; Chicago v. Huenebrein, 85 Ill. 594. (5) The court erred in refusing instructions numbers 3 and 7 as asked for by plaintiff. (6) The court erred in giving instruction number 1 prayed for by defendant. (7) The court erred in giving instructions numbers 2, 3, 4, 5 and 6, prayed for by defendant. McCowan v. Railroad, 23 Mo.App. 203; Wood on Nuisances [2 Ed.] sec. 865; Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575; Culver v. Railroad, 38 Mo.App. 130. (8) The court erred in giving instruction number 7, asked for by defendant. Rychlicki v. St. Louis, 98 Mo. 497.

Spencer, Burnes & Mosman for respondent.

(1) The court did not err in refusing plaintiff's eleventh, thirteenth and fourteenth instructions, or in modifying plaintiff's third and seventh instructions, or in giving defendant's first, second, third, fourth, fifth and sixth instructions. "The grant of the right to build the dam is clear and certain, and this grant carries with it all the incidental rights and powers which were requisite to the efficacious and beneficial exercise and enjoyment of the right." Slatten v. Railroad, 29 Iowa 152; Miller v. New York, 109 U.S. 385; Trans. Co. v. Chicago, 99 U.S. 640; Bellinger v. Railroad, 23 N.Y. 47; Radcliff's Ex'rs v. Mayor, 4 N.Y. 203; Boothby v. Railroad, 51 Me. 318; Abbott v. Railroad, 81 Mo. 271. "It is a logical sequence from legal principles that to the extent to which a person has a right to act others are bound to suffer; and any damage that may accrue to them, while a person thus exercises his own rights, affords no valid ground of complaint. The loss occasioned in such cases is damnum absque injuria." Charles v. Rankin, 22 Mo. 572. "This, it seems to us, is sound doctrine, and, indeed, it must be true, as a general proposition, that the rightful and bona fide exercise of a lawful power or authority cannot afford a basis for an action." Slatten case, supra; Randall v. Railroad, 65 Mo. 332; Henry v. Pittsburg Bridge, 8 Watts & S. 85. It was the settled rule in this state, prior to the adoption of the constitution of 1875, that consequential damages could not be recovered. Indeed, to change that rule, the constitution was amended by the insertion of the words "or damaged." Werth v. Springfield, 78 Mo. 110; Household v. St. Louis, 83 Mo. 492; Rude v. City, 93 Mo. 416; Sheehy v. Cable Co., 94 Mo. 578; State ex rel. v. City, 89 Mo. 43. This court applied the doctrine in relation to the recovery of consequential damages, above stated, at an early day to cases in which damages were sought to be recovered on account of injuries sustained from water thrown upon the lands of the citizens by a public work, and in every case it has held that consequential damages, resulting from the flooding of premises with water, could not be recovered. City v. Gurno, 12 Mo. 414; Imler v. City, 55 Mo. 119; Swenson v. City, 69 Mo. 166; Foster v. City, 71 Mo. 157. In the following cases this court applied the same rule to consequential damages from water, in cases where a railway was a party: Abbott v. Railroad, 83 Mo. 276; Swenson v. Railroad, 69 Mo. 166; Jones v. Railroad, 84 Mo. 155; Clark v. Railroad, 36 Mo. 224. (2) First. The act of the legislature authorized the construction of a permanent dam, and, where the structure causing damage is a bridge, pier, railway embankment, or similar public work of a permanent nature, the damage is done once for all. The action accrues when the work is completed, and a recovery can be had in one action for all damages, present and prospective. Stogdill v. Railroad, 53 Iowa 43; Fowle v. Railroad, 112 Mass. 337; Railroad v. Mihlman, 17 Kan. 234; Loeb v. Railroad, 118 Ill. 208; Mahar v. Railroad, 91 Ill. 312; Troy v. Railroad, 3 Foster (N. H.) 83; James v. City, 83 Mo. 567. Second. Again, an insuperable objection to the application of the doctrine of the Pinney case to the one at bar is, that even if the construction of the dam was without authority the county of Atchison had by prescription acquired the right to have it maintained before the damages mentioned in the petition accrued to plaintiff. Sherber v. Held, 47 Wis. 340; State v. Well, 67 Mo. 637; Angell on Limitations, sec. 300; McGowan v. Railroad, 23 Mo.App. 208; James v. City, 83 Mo. 567; Smith v. Musgrove, 32 Mo.App. 255. Third. The dam was built in 1868. The damages accrued in 1881, 1882 and 1883. The action was brought April 7, 1885. It is, therefore, clear that the statute of limitations, that is pleaded to each count, was a complete bar to the action. Plaintiff in his petition alleges that the dam flooded his lands from year to year. Baldwin v. Gas Co., 57 Iowa 51; Powers case, 45 Iowa 651. (3) Plaintiff's fourteenth instruction was rightly refused, because it declared that defendant was liable for damages caused by independent tort feasors. Givens v. Van Studdiford, 86 Mo. 149; Martinowsky v. City, 35 Mo.App. 70.

OPINION

Black, J.

This is an action to recover damages for overflowing some four thousand acres of land owned by plaintiff, thereby destroying his crops in the years 1881, 1882 and 1883, and at the same time permanently injuring his lands. There is a separate count for the damages to the crops in each year, and for the permanent injuries to the land.

The petition avers and the proof shows that the acts complained of were done at different dates and by different railroad companies; but as these companies were consolidated from time to time, forming the present defendant, we shall treat the defendant as liable for the acts of its constituents. Disregarding these acts of consolidation the substantial averments of the petition are, that the defendant in 1868 built a dam across the Nishnabotna river at one point, and in 1880 carelessly and negligently constructed a bridge over the same river at another point, by reason of all which the waters of that river were thrown back upon the plaintiff's land at ordinary high stages of water and his crops and land injured in the years before named. The jury found a verdict for the plaintiff, but assessed his damages at $ 1 only, and he appealed from the judgment entered thereon.

The bridge and dam are in the county of Atchison in this state, the former a mile and one-half and the latter two miles south of the state line. The plaintiff's lands lie in the adjoining county of Fremont in the state of Iowa, and are from five to twelve miles north and northwest of the dam and bridge. The railroad runs over the bottom lands on the east side of the Missouri river. It passes over the dam and bridge and thence on in a northwest direction for a distance of four miles to a point near to, but west of, Hamburg in Iowa, thence in a more westerly direction for some three miles where there is trestle work over a slough, and thence on to the northwest. The plaintiff's lands are situate on both sides of the railroad, north and south of this slough. The Nishnabotna river, hereafter called the Nishna, flows from the interior of Iowa in a southwesterly direction to a point just east of Hamburg, thence in a more southerly course to the bridge. Willow creek flows in a southeasterly direction, east of the railroad, to a point near Hamburg where it empties into the Nishna, so that the waters of these streams join before they reach the bridge. Prior to 1860 the Nishna, after passing the place where the bridge was subsequently erected, made a curve to the south and then back to the east, passing over the place where the dam was built, thus forming a loop out west towards the Missouri river. It then ran on in a southeasterly direction for a distance of fifty or sixty miles by its meanderings before it entered the Missouri. In 1863, according to most of the witnesses, the Missouri worked its way east so as to cut into the Nishna at the loop before mentioned. Thereafter the Nishna discharged its waters into the Missouri at this cut-off, leaving the fifty or sixty miles of the old Nishna bed as a wasteway in time of high waters.

In 1867 the Missouri made what is called the Peru cut-off, that is to say, it cut out for itself a new channel some five miles west of this place where it had before cut into the Nishna at the loop. After this the Nishna continued...

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