Field v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 614
• Parties: FIELD v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 614

FIELD

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Platte Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

M. A. Low for appellant.

When the plaintiff's right is founded upon an obligation of law, or an obligation on the part of the defendant to observe some particular duty, the declaration must state concisely the circumstances which give rise to the defendant's particular duty or liability. Moak's Van Santvoord's Plead., (3 Ed.) 219; 1 Estee's Plead., (1 Ed.) 204; City of Buffalo v. Holloway, 7 N. Y. 493; Leas v. White, 15 Iowa 187; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; s. c., 33 Am. Rep. 755. And the evidence should be confined to the facts. Waldhier v. R. R. Co., 71 Mo. 514; Luckie v. R. R. Co., 67 Mo. 245; Edens v. R. R. Co., 72 Mo. 212; Price v. R. R. Co., 72 Mo. 414; Bullene v. Smith, 73 Mo. 151, 162; Harrison v. R. R. Co., 74 Mo. 369; Marquette, etc., R. R. Co. v. Marcott, 41 Mich. 433; C., B. & Q. R. R.Co. v. Lee, 68 Ill. 576; Manuel v. R. R. Co., 56 Iowa 655; Munkers v. R. R. Co., 60 Mo. 339. The railroad company had a right to obstruct the flow of surface water, and cannot be made liable in this action. Imler v. Springfield, 55 Mo. 119; McCormick v. R. R. Co., 57 Mo. 433; 70 Mo. 359; Munkers v. R. R. Co., 60 Mo. 334; Laumir v. Francis, 23 Mo. 181; Barkley v. Wilcox, 86 N. Y. 140; s. c., 40 Am. Rep. 519; Gibbs v. Williams, 25 Kas. 214; s. c., 37 Am. Rep. 241.

J. E. & J. F. Merryman for respondent.

HENRY, J.

This is a suit to recover damages for the destruction of a growing crop of corn on plaintiff's land, and, after relating plaintiff's ownership of the land, and that defendant had for years past been using a strip of said land for a right of way and running its train of cars over it, the cause of action is thus stated: “That defendant failed to keep its road in such condition as to prevent injury to plaintiff; but negligently and carelessly failed to make, and keep open, proper ditches for the purpose of leading the water off of plaintiff's land; and in consequence of the careless and negligent conduct of defendant, as aforesaid, the water was dammed up, and caused to flow back, and over the land of plaintiff, and destroy his growing crop, to his damage,” etc. The defendant objected to the introduction of any evidence because no cause of action was stated in the petition, but the court overruled his objection, and on the trial plaintiff obtained a judgment from which defendant appeals. In his motion in arrest, defendant also made the objection that no cause of action was stated in the petition.

1. RAILROAD: ditches: pleading.

The complaint in the petition, and the only cause of action alleged, is “that defendant failed to keep its road in such condition as to prevent injury to plaintiff, but negligently failed to make, and keep open, proper ditches for the purpose of leading the water off of plaintiff's land.” Placing the most favorable construction upon the petition, which is to take it as alleging “that defendant failed to keep its road in such condition as to prevent injury to plaintiff's land, by negligently and carelessly failing to make, and keep open, proper ditches to lead the water off of plaintiff's land,” it does not state a cause of action. It is not alleged that the railroad-bed was raised above the surface of plaintiff's land through which it passed, and if on a level with that surface it could not have obstructed the flow of surface water. If, on the other hand, it made an embankment where it ran through his land, the statute only requires ditches sufficient to carry off the surface water, along the sides of the embankment; and we know of no statute or principle of the common or civil law, which, on the facts stated in this petition, requires the...