Hawkins v. Burlington Northern, Inc.

• Decision Date: 09 September 1974
• Docket Number: No. 58443,58443
• Citation: 514 S.W.2d 593
• Parties: Lawrence L. HAWKINS and Louise S. Hawkins, Respondents, v. BURLINGTON NORTHERN, INC., Appellant (two cases).
• Court: Missouri Supreme Court

Page 593

514 S.W.2d 593

Lawrence L. HAWKINS and Louise S. Hawkins, Respondents, v. BURLINGTON NORTHERN, INC., Appellant (two cases).

No. 58443.

Supreme Court of Missouri, En Banc.

Sept. 9, 1974.

Rehearing Denied Oct. 14, 1974.

Walter A. Raymond and Raymond, West, Shy & Morris, and Edward L. Simmons, Kansas City, for respondents.

Clyde J. Linde, Billy S. Sparks, Kansas City, for appellant; Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel.

Sam D. Parker, Jack W. R. Headley, Kansas City, for The Atchison, Topeka and Santa Fe Railway Company.

PER CURIAM:

After opinion, the Court of Appeals, Kansas City District, transferred these two cases, consolidated for purposes of appeal, to this court. The opinion was written by Pritchard, J., and made the following disposition of the same:

'These two flooding cases were consolidated upon appeal. The first, No. KCD 26077, was tried in DeKalb County upon the theory of common law trespass for flooding of a portion of 24 acres of land for the years 1951, 1952 and 1953, and resulted in a judgment pursuant to the verdict of a jury for a total of $4,100.00 for the three counts for actual damage. The second, No. KCD 26187, was tried in Clinton County upon the theory of common law nuisance for flooding of a portion of 18 acres of land for the years 1962, 1963, 1965 and 1966. The Clinton County case resulted in judgment after jury verdict in the total amount of $4,956.75 actual and $8,000.00 punitive damages for the four counts of the petition.

The facts which are common to both cases are these: In 1949, Burlington's predecessor condemned a portion of 75 acres in order to construct railroad tracks to provide a shorter route between Kansas City and Chicago. Before the condemnation award, respondents bought 75 or 80 acres, which they had rented since 1946, from their aunt. The $10,000.00 purchase price was made up of $6,500.00 from the condemnation award and $3,500.00 cash paid to the aunt.

Prior to the time in 1950 when Burlington began construction of the line, the natural drainage of the area was from about 340 acres coming out of hills and draining north toward Turkey Creek, down a slope of 3 to 4 degrees. There were then two natural drainage ditches, an east ditch called the Anderson ditch, and the west ditch called the north-south ditch. Respectively, these two ditches drained 240 and 40 acres, and met and joined with what is known as the Hawkins ditch (which drained to the west) below and off of Burlington's right of way, adjacent to respondents' 18 acres claimed to have been flooded. Anderson and Hawkins, in 1947, prior to respondents' purchase of the land from their aunt, hired a bulldozer to straighten and clean out their ditches, which were then about 12 feet wide at the bottom and 4 to 5 feet deep with a 2 to 1 slope on each side. About 20 acres north of the right of way drained into the ditch below it, about where Burlington's culvert was later constructed. As shown by the plats and maps, the Anderson ditch flowed northwesterly, and about where the embankment was later constructed curved to the left and west and flowed directly into the Hawkins ditch. The north-south ditch flowed north and joined the Hawkins ditch at about right angles. The construction of the culvert caused both ditches to join in one stream the Hawkins ditch at about a right angle, not in alignment with any previous drainage pattern, rather than as before, the Anderson ditch (draining the larger area) flowing directly into it, and the north-south ditch (draining about 40 acres) flowing separately into it at right angles.

In 1950 Burlington constructed an embankment 18 feet high through the area of the two ditches, and their course to the south of the embankment was altered so that the flow of water would meet 200 feet to the west of the Anderson ditch and 125 feet east of the north-south ditch, after which the water would pass through a culvert, the original channels of both ditches being thereby blocked on the south side of the embankment. The culvert was constructed of concrete, 8 by 8 feet in size, and according to respondents' civil engineer expert, Col. des Islets, was properly placed, adequate in size, and the ditches below it were adequate to handle the water, but the problem was in getting the water from the culvert into the (Hawkins) ditch below so that the water would turn 40 to 45 degrees to the left and flow in the right direction. As it was at the time of the trials, Col. des Islets described, in the DeKalb County trial, what Burlington's engineer had done in these words: 'He did a fine job as far as adequacy of size is concerned, but when it come to the outlet he disregarded the nature of the water flow and failed to take care of it the way he should have and put it back in the stream where it belonged. * * * Now, the thing that is happening right now: the water comes out here and hits against this bank. And as it drops down into the bank, it starts a boiling like this and forms a water dam. As it gets higher it forms a water dam. Now, the higher that water comes on the bottom end of that box the less flow will come through the box. This is pretty reasonable. I think anybody can understand that. So the higher this boil comes back up, the slower your water comes through the box. And that's the trouble with this thing right here. Now, what it needs is to be projected out here and a 45-degree wall taken here so that it will come down and bounce right off and there is plenty of room for it to get away. As soon as it gets away from there that box will keep flowing freely all the time. As that box flows freely all the time, it will more than adequately drain the area above. * * * Well, what happens: now it washes against that bank and it's probably--since I saw it--probably taking that bank down low enough that the water probably flows right across this man's property and seeks a way back in down below here and would in time actually change the whole stream bed right straight through this property.' The matter could be corrected by constructing a curved concrete guide in the nature of a buffer, a guide wall or wing wall on the lower end of the culvert, which is practically at right angles to Burlington's right of way, to turn the water into the lower drainage ditch headed in the right direction. According to Col. des Islets, the railroad engineers did a good job on the culvert as far as they went but that they did not finish the job putting on a guide wall to turn the water. The guide wall could be added without going off of Burlington's property, and could be projected out 20 more feet from culvert and angled, 'so you aim it right down the stream.'

Prior to the time that the embankment was constructed and the ditches were altered, respondents had not suffered crop damage from floods. The first crop loss flooding after 1946 occurred in 1950 while Burlington was putting up the framework for the culvert, which resulted in the framework wood being scattered over the 18 acre tract below the embankment. The tracts involved consisted of bottom land, and respondents conceded that there had been some flooding from rains of two inches, but denied that there had been crop damage before the embankment and culvert were constructed.

Mr. Hawkins testified that beginning in 1950 respondents have repeatedly complained to Burlington about the flooding, and have requested it to remedy the situation but it has refused to make any attempt to remedy it 'which attitude and posture continues to this day.' According to him, since the embankment was completed, water backs up to 12 feet deep on the south side of the culvert and floods about 3 acres, then goes through the sloped culvert then on 25 to 30 feet where it hits the Anderson-Hawkins ditch. The water must then turn about 45 degrees (to the left) to go down that ditch, but it does not do so but arches over the ditch bank when 1 1/2 inches of rain fall, which occurs quite a few times in the area where respondents live. Since the culvert was installed, the 1 1/2 inches of rain falling within a short time, causes the water to 'pond' above and to the south of the culvert after which it shoots out the lower end of the culvert with great velocity, carrying it over the drainage ditch onto respondents' 18 acre field below. The water then goes out across the field, up to 2 feet deep, turns toward its west end, and empties into a field north of where Mr. Hawkins had built a bridge across his ditch. Photographs taken in 1954, 1961, 1964 and 1966, show the ditch full of water and water flowing (in quantity) over the 18 acre tract. The 1966 flooding occurred after a rain of 11.2 inches, most of it falling within an hour. According to Mr. Hawkins, when his ditch became full of water it would not flow because the water therein had lost its velocity. 'The ditch fills up from just a pull of gravity on the fall from this, and it is stopped. There is no place for the water to go with the force it comes down that bridge, except right over the way you have directed it out over that field.' Mr. Hawkins testified further about the crop damages sustained by him as a result of rains in various years after the embankment and culvert were constructed, but no issue is here made as to damages except for the giving of certain instructions relating to punitive damages, and for the refusal of a withdrawal instruction as to any damage to lands north of the embankment. Thus, the matter of actual damages need not be discussed.

Appellant's first point, common to both appeals, is that the judgment should be reversed outright because its duty and liability is governed by § 389.660, RSMo 1969, V.A.M.S.; that the evidence is not sufficient to sustain a finding that the statute was violated. The point is further that the evidence is only that appellant complied with its duties and obligations imposed by the statute: It did construct and maintain a suitable...