Benson v. Chicago & Alton R.R. Co.

• Citation: 78 Mo. 504
• Parties: BENSON v. THE CHICAGO & ALTON RAILROAD COMPANY, Apvellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

78 Mo. 504

BENSON

v.THE CHICAGO & ALTON RAILROAD COMPANY, Apvellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Walker & Reed for appellant.

Hall, Young & Wilson for respondents.

PHILIPS, C.

This is an action to recover damages resulting from turning the flow of water from its natural course on to the lands of respondent by appellant. The petition states substantially that plaintiffs owned certain lands on the line of defendant's railroad; “that on or about the 1st day of July, 1878, defendant built and constructed said railroad through and across said real estate, and through and across lands east of and adjacent thereto, and in building and constructing the road-bed of said railroad, defendant failed and neglected to provide and construct proper openings and water-ways through the said road-bed, but did so construct and build the same that the drainage from the surface of and the water flow from a large scope of country to the east of said real estate, which by its natural course and channels did not flow over the said real estate, was diverted from its natural course and channels and turned and directed so as to flow over and through the land of plaintiff, (describing it,) through an opening and culvert in said road-bed, built and constructed by defendant, near the eastern boundary of and upon said real estate, to plaintiff's damage in the sum of $600.” There was a similar count for damages alleged to have been caused by the flow of water coming from the west, but as that issue was found for defendant no further notice need be taken of it.

The answer tendered the general issue as to the trespass, and for special defense alleged that the railroad company known as the Lexington, Lake & Gulf Railroad Company, built the road-bed in question, with the sanction of and license from the plaintiffs, evidenced by a deed of conveyance therefor, dated August 28th, 1871, duly acknowledged and recorded, by which they conceded to said railroad the right of way over said lands with a width of fifty feet on either side. The answer averred that the defendant, as the grantee and successor of said company, occupied and built its road to completion over said road-bed so made by its predecessor, and conformably to said grant from plaintiffs, and it is then averred that if any damage was sustained by plaintiffs by reason of any of the matters complained of, the same was caused by the said Lexington, Lake & Gulf Railroad Company when defendant entered thereon, and plaintiffs having required the said railroad so built by defendant to be built on said road-bed, cannot now complain, but are estopped, etc. The answer further pleaded that the plaintiffs, by their deed having granted, for a valuable consideration, the right of way to build and maintain over its said way a railroad, had conceded to defendant the right to build embankments, if necessary to its use; that said road as far as built by it was done with due care, free from negligence, with proper culverts and appliances for drainage; and if any damage had resulted to plaintiffs it was such only as resulted unavoidably from the proper use and employment of defendant's franchise and property.

The cause was tried before a jury. The evidence showed that the road-bed in question was constructed by the said Lexington, Lake & Gulf Railroad Company; that in 1878 the defendant company was operating the road and built a culvert through the road where it runs across plaintiff's land. This culvert emptied into a natural water course of considerable size with a deep bed and wide banks. From plaintiffs' land on the south side of the road (the water-fall being from the southeast to the northwest) there were no natural water courses, or branches so-called. The land was rolling prairie, and the water ran off by surface flow. To the east of plaintiffs' land, say a quarter of a mile, was a farm, the topography of which was similar to that of plaintiffs', the water running therefrom in the same general direction. Where it struck the railroad there was an embankment of about five feet. The water was carried from this point by means of an artificial ditch dug by defendant on its right of way to and discharged through said culvert into said natural water course. The injury, if any, done to plaintiffs' land was by reason of the increased flow of the volume of water through this culvert, and its apread over the contiguous land. The evidence, so far as applicable to the questions of law to be decided, will be noticed in its proper connection.

The court gave, on behalf of plaintiff, the following instructions:

1. If the jury believe from the evidence that there were one or more water courses which began and ran east of plaintiffs' land, and did not run over or through said land, and which by their natural channels crossed the line of defendant's road-bed east of plaintiffs' said land, and that in the construction of said road-bed defendant failed and neglected to provide and construct proper culverts and water-ways for the passage of the water running in said water courses through said road-bed, but did so build and construct said road-bed that the said water courses, if any, were dammed up, and the water which was accustomed to run in them was diverted from its natural channels, and by means of an artificial ditch or otherwise, defendant turned the same over and across the land of plaintiffs, and that plaintiffs were damaged thereby, then they will find for plaintiffs on the first count in their petition.

2. It is not necessary, in order to constitute a water course for the purposes of this suit, that there should be water constantly in the bed or channel thereof, but it is sufficient if the same have a permanent natural location and that water is accustomed to run therein during a part of the year and in certain seasons, and is made up from the running of surface water which finds its natural outlet through its channel.

3. If the jury find for the plaintiffs, the measure of damages will be the difference in the market value of plaintiffs' land immediately before the diversion of the water courses, and immediately afterward, not exceeding the amount claimed in the petition, not taking into account any other damage which may have been occasioned by the construction of said railroad, save that occasioned by the diversion of water courses.

4. If the jury believe from the evidence that there is a water course which began and ran west of plaintiffs' real estate described in their petition, and did not run over or through said land, and which by its natural channel crossed the line of defendant's road-bed west of plaintiffs' said land, and that in the construction of its road-bed defendant failed and neglected to provide and construct proper culverts and water-ways for the passage of the water running in said water course through said road-bed, but did so build and construct said road-bed that the said water course, if any, was dammed up and the water which was accustomed to run in said water course was diverted from its natural channel and turned and made to flow over and across the land of plaintiffs, and that the plaintiffs were damaged thereby, then they will find for plaintiffs on the second count in the petition.

The defendant asked the following instructions:

1 On the evidence in this case the plaintiffs cannot recover.

2. If the jury believe from the evidence that the roadbed and embankment of the defendant were constructed in the usual and proper manner with a culvert of sufficient capacity for the escape of water, and that said embankment was necessary for the building of defendant's railroad, and that no natural water course was interfered with by defendant or its agents, or the Lexington, Lake & Gulf Railroad Company, but that plaintiffs' damage, if any was sustained, was caused by surface water alone, then plaintiffs cannot recover, and the jury will find for defendant.

3. The difference between surface water and a natural water course is, that surface water is such water as is caused by the melting of snow and ice, and rains, which water diffuses itself over the ground, while a water course is a running stream of water having a bed and clearly defined banks, though a water course may be sometimes dry; and if the jury believe from the evidence that the water that flowed through the culvert on plaintiffs' land was surface water as above defined, then plaintiffs cannot recover, and the jury will find for defendant.

4. If the jury believe from the evidence that plaintiffs by deed conveyed the right of way through the land in controversy to the Kansas City, St. Louis & Chicago Railroad Company, its successors and assigns, and that said company afterward conveyed all its interest to the defendant company, and that the latter completed its road by the 31st day of December, 1879, then in the absence of any negligence, unskillfulness or mismanagement in the construction of the embankment or the road-bed, the injury done to plaintiffs' property, if any injury was done, must be considered as the natural and necessary consequence of what the defendant had acquired the lawful right to do, and such damages, if any were sustained, must be taken to have been included in the compensation paid for the right of way, and for such damages plaintiffs cannot recover.

5. It is the privilege and duty of the defendant to dig or cause to be dug along the side of its road-bed and embankment a ditch of sufficient capacity to carry off the surface water caused by melting snows, ice and rain; and if the...