Vollrath v. Wabash R. Co.

• Citation: 65 F. Supp. 766
• Decision Date: 06 May 1946
• Docket Number: No. 2052.,2052.
• Parties: VOLLRATH et al. v. WABASH R. CO.
• Court: United States District Courts. 8th Circuit. Western District of Missouri

65 F. Supp. 766

VOLLRATH et al. v. WABASH R. CO.

No. 2052.

District Court, W. D. Missouri, W. D.

May 6, 1946.

COPYRIGHT MATERIAL OMITTED

Jess M. Fisher, of Kansas City, Mo., for plaintiffs.

Sam B. Sebree, of Kansas City, Mo., for defendants.

COLLET, District Judge.

Plaintiffs, servient owners of lowlands, bring this action against defendant railroad company for damages resulting from the cutting by defendant of its railroad embankment located across the bottom along the upper or north boundary of plaintiffs' farm, thus allowing flood water to pass through that opening in a concentrated stream onto plaintiffs' land below. The plats in evidence adequately portray the topographical conditions as they now exist. There is little dispute concerning the facts. Tersely stated, the primary legal question is whether the railroad which occupies the position of the dominant landowner, is liable for damages resulting to the landowner below from the cutting of an artificial barrier, in this case an embankment upon which the railroad's tracks are laid, which heretofore served in times of flood to impound the overflow waters of Musselfork Creek above and north of the embankment and confine those waters to the one opening previously existing over the channel of that creek. The new opening or cut in the embankment was made for the purpose of releasing these flood waters and thereby preventing them from overflowing the embankment and washing out the defendant's tracks, which had occurred several times. Prior to the cut a system of levees maintained by plaintiffs and connected with defendant's embankment under written contract with defendant under which the connection could be severed when necessary to the protection of defendant's embankment served as substantial protection to plaintiffs' farm from overflow from above. Now when the creek overflows north of the railroad embankment the flood water rushes through the new cut with great speed and force onto plaintiffs' land, causing serious damage. No lateral ditches have been constructed along the upper side of the embankment which serve to lead the water through the cut and onto plaintiffs' land. A ditch exists on the north side of the embankment but it is one such as the Missouri statute requires and has a bank on its south side next to the embankment which does not permit ordinary run-off water to flow through the cut. The level of the land on defendant's right-of-way immediately south of the cut is higher than the lateral ditch bed or its bank.

It is well established that overflow waters are to be treated as surface water in Missouri. Goll v. Chicago & Alton R. Co., 271 Mo. 655, 197 S.W. 244; Place et al. v. Union Township et al., Mo. App., 66 S.W.2d 584; Jones v. Chicago, B. & Q. R. Co., Mo.App., 100 S.W.2d 617; Tackett v. Linnenbrink, Mo.App., 112 S.W. 2d 160; Keener v. Sharp, 341 Mo. 1192, 111 S.W.2d 118. That the common law has been adopted in Missouri is also clear. Goll v. Chicago & A. R. Co., supra. The common law relating to the rights and obligations of adjoining proprietors with respect to surface water has undergone some development since the early pronouncement of the common law doctrine. What those refinements and modifications are, with respect to a factual situation such as is presented by the present record, are more definitely determined by an examination of the gradual development of the law in Missouri.

While it was not the first case on the subject, Hosher v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 329, probably states the early rule more definitely than other early cases. The rule was stated in that case in the following language (60 Mo. loc. cit. 333): "But in the case of surface water, which is regarded as a common enemy, he is at liberty to guard against it, or divert it from his premises, provided he exercises reasonable care and prudence in accomplishing that object. In the language of this court in a recent case, where this subject was carefully considered, the owner of the dominant or superior heritage `must improve and use his own lands in a reasonable way, and in so doing he may turn the course of, and protect his own land from, the surface water flowing thereon; and he will not be liable for any incidental injury occasioned to others by the changed course in which the water may naturally flow, and for its increase upon the land of others. Each proprietor, in such case, is left to protect his own lands against the common enemy of all.'" Citing McCormick v. Kansas City, St. J. & C. B. R. Co., 57 Mo. 433; Imler v. City of Springfield, 55 Mo. 119, 17 Am.Rep. 645; and Jones v. Hannovan, 55 Mo. 462.

That doctrine had been followed before, see Imler v. City of Springfield, 55 Mo. 119, 17 Am.Rep. 645, Jones v. Hannovan, 55 Mo. 462, and with the exception of McCormick v. Kansas City, St. J. & C. B. R. Co., 70 Mo. 359, 35 Am.Rep. 431, and Shane v. Kansas City, St. J. & C. B. R. Co., 71 Mo. 237, 36 Am.Rep. 480, both of which expressly followed the Code Napoleon, Sec. 640, the Missouri courts have thereafter steadfastly asserted that the common law or "common enemy" doctrine was the law in Missouri. Benson v. Chicago & A. R. Co., 78 Mo. 504, loc. cit. 512; Goll v. Chicago & A. R. Co., 271 Mo. 655, 197 S.W. 244; Tackett v. Linnenbrink, Mo.App., 112 S.W. 2d 160; Abbott v. Kansas City, etc., R. Co., 83 Mo. 271, 53 Am.Rep. 581; Grant v. St. Louis, I. M. & S. Railroad Co., 149 Mo. App. 306, loc. cit. 310, 130 S.W. 80; Jones v. St. Louis, I. M. & S. Ry. Co., 84 Mo. 151, loc. cit. 155; Moss v. St. Louis, I. M. & S. Ry. Co., 85 Mo. 86; Walther v. Cape Girardeau, 166 Mo.App. 467, loc. cit. 476, 149 S.W. 36; Jones v. Wabash, St. L. & P. Ry. Co., 18 Mo.App. 251, loc. cit. 257.

The "common enemy" doctrine, so frequently referred to as the "common law" rule, enforced literally would permit the property owner whose estate was higher in elevation than his neighbor to throw surface water onto his neighbor below in any manner, leaving to the latter the necessity, coupled with the legal right, to protect himself as best he could. And to the extent, if necessary, of damming the water back onto the so-called "dominant" proprietor.

But at the inception of the announcement and definition by the Missouri courts of the common enemy doctrine the literal meaning of the term was qualified by such expressions as "in the absence of any negligence, unskilfulness, or mismanagement." Clark's Adm'x v. Hannibal & St. J. R. Co., 36 Mo. 202, loc. cit. 224. The qualification would seem to have been unnecessary and possibly resulted in some subsequent confusion. For the negligent performance of a lawful act would ordinarily furnish ground for recovery irrespective of the law relating to water rights. And on the other hand the exercise of a right conferred by the common enemy doctrine could not be characterized as negligence per se. In the later case of Imler v. City of Springfield, 55 Mo. loc. cit. 126, 17 Am.Rep. 645, the Court so implies, for there it is held that the failure to do that which the common enemy doctrine did not require be done could not constitute negligence and created no liability.

Shortly after Clark's Adm'x v. Hannibal & St. J. Railroad Co., supra, in Jones v. Hannovan, 55 Mo. loc. cit. 467, the same court said: "Surface-water is considered a common enemy that each proprietor may and must fight for himself, with a view to protect himself, without being responsible to others therefor, provided he does so in an usual and careful manner." Just what the court intended by the use of the word "usual" is not clear. Possibly it was the first outcropping of the doctrine of the civil law as yet unrecognized in Missouri. Speculation will serve no good purpose. But certainly the civil law rule definitely appeared, albeit without announcement, in McCormick v. Kansas City, St. J. & C. B. R. Co., 57 Mo. 433, at page 439, wherein the court said: "While the defendant had the right to drain the surface water from its road bed, so as to protect the same for continued and profitable use, it should have been done in a reasonable manner with reference to the rights of others. If there was a running stream of water in the vicinity of the road, into which the water could have been drained by a ditch cut on defendant's own land, that should have been done. If there was no such stream convenient, the water should have been drained off by culverts or otherwise, so as to occasion no unnecessary inconvenience or damage to plaintiff." Citing Kauffman v. Griesemer, 26 Pa. 407, 415, 67 Am.Dec. 437, and Waffle v. New York Central R. R. Co., 58 Barb. N.Y. 413.

The two cases cited are expressly based upon the civil law. While the court may have strayed away from the common law "common enemy" doctrine in this first McCormick case, it promptly returned to that rule the following year in Hosher v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 329, wherein it used the language heretofore quoted from that opinion. It is of some significance in the light of future developments that, although in the Hosher case the court only quoted that part of the opinion in McCormick v. Kansas City, St. J. & C. B. R. Co. which embodied the unqualified common enemy doctrine, and, by eliminating any reference to the civil law qualification of that rule found in the McCormick opinion discarded those qualifications, the court in the Hosher case first uses such terminology as "dominant or superior heritage", terms common to the civil law doctrine but unknown to the theory that all proprietors possessed an equal right to defeat the "common enemy."

Shortly thereafter the McCormick case came to the court again and the civil law was expressly adopted. The unrestricted right of a landowner to protect himself by the erection of embankments and otherwise was supplanted by the doctrine that, "Where two fields adjoin, * * * and one is lower than the other, the lower must necessarily be subject to all the natural flow of...