Adair Drainage District v. Quincy, Omaha & Kansas City Railroad Company
| Citation | 217 S.W. 70,280 Mo. 244 |
| Parties | ADAIR DRAINAGE DISTRICT v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Decision Date | 20 December 1919 |
| Court | United States State Supreme Court of Missouri |
Appeal from Adair Circuit Court. -- Hon. Jas. A. Cooley, Judge.
Reversed.
Campbell & Ellison and J. G. Trimble for appellant.
(1) In the state of the pleadings at the time objection was made to introduction of testimony and the motions to quash the writ were filed, they should have been sustained as there was no reply to appellant's return. (2) If it were true that there was drift in the river which had injured relator's ditch, it has an adequate remedy at law and therefore mandamus will not lie. 2 Bailey on Hb. Corp. and Extraordinary Remedies (1913), p. 800; Bayard v. United States, 127 U.S. 246. Relator having an adequate remedy at law, even if it had been injured, cannot maintain mandamus. State ex rel. v. Gibson, 187 Mo. 553; State ex rel. v. Wurdeman, 187 S.W. 258; Caruth v. Richeson, 96 Mo. 186; People ex rel. v Railway, 177 N.Y. 296. Appellant had a perfect right to take trestle bridges out of its railway and make its embankment one of solid earth. This is directly decided in the Vanlandingham case, 206 S.W. 399. The case of Goll v Railroad, 271 Mo. 655, is as much applicable to the present case as to the Vanlandingham case.
Higbee & Mills for respondent.
(1) This proceeding is authorized by Sec. 5513, R. S. 1909, Sections 26, 30 and 62, pp. 249, 250 and 266, Laws 1913. The plaintiff district is authorized to clean out straighten, widen, change the course and flow of any volume of water, alter or deepen any ditch, etc., in or out of the district, concentrate, divert or divide the flow of water in or out of the district; to remove any fence, building or other improvements in or out of said district, "in order to effect the drainage and reclamation of the land" in the district. Plaintiff is entitled to invoke the said of the court to remove the obstructions to the flow of the surface water caused by the improvements; that is, filling the trestles with earth embankments. Pere Marquette Railroad Co. v. Weilnan, 122 N.W. 303; C. B. & Q. v. Board of Supervisors, 182 F. 291, 31 L.R.A. (N.S.) 1117; Drainage District v. Railroad Co., 99 Kan. 188; Riffe v. Ry. Co., 207 S.W. 78 (syl. 13); 26 Cyc. 296. (2) Respondent admits that it rebuilt its bridge over the river in 1910, and that a large amount of driftwood accumulated in the channel of the river north of the bridge, but claims it has removed the driftwood. Some of this driftwood is still in the channel of the river. The flow of water having been thus obstructed, the channel necessarily filled with sand which covered up timbers that remain in the bed of the river. This deposit in the bed of the river necessarily obstructs the flow of water and the ditch can cut no deeper than the river. The water in the river is lower south of the bridge than north of it. (3) The Drainage Act was enacted for the purpose of effecting the reclamation of swamp and overflowed lands, is highly salutary and remedial. It repeals the common-enemy doctrine of the common law respecting surface water. The respondent has no right to construct solid embankments over such lands to their injury that is protected by the Federal Constitution, nor does the Drainage Act deprive it of its property without due process of law. Railroad v. Tranbarger, 35 S.Ct. 678, affirming: Tranbarger v. Railroad, 250 Mo. 46.
SMALL, C. Brown and Ragland, CC., concur.
This is a suit in mandamus to compel the appellant to remove obstructions in the Chariton River and to make openings in an embankment on its right of way. The embankment is without openings except a pipe three or four feet in diameter. The embankment commences about two hundred feet west of appellant's bridge over said river and extends thence southwesterly about one-half mile. It constitutes the south boundary line of the relator drainage district, and was built across the bed of an old lake or depression in the land, which was usually dry except in times of heavy rains, and was from five to ten feet lower than the bank of the river, for some distance north and south of the embankment. The drainage district extends north seven miles to the north line of Adair County and embraces about seven thousand acres of swamp or overflow land. The Chariton River runs in a tortuous and crooked course south through the district. The main ditch of the drainage district was built in 1911 and extends through the district from north to south, emptying into the river about four hundred feet north of appellant's bridge, on the east side of the river, where it bends to the west. This ditch was built across the land in the bends of the river, and was about twenty-eight feet wide and sixteen feet deep. The bottom of the river was generally about twelve feet lower than the bottom of the ditch. This plan of construction contemplated that when the river arose to the bottom of the ditch the water would flow through and wash and "scour" the ditch out and thus ultimately widen and deepen it. There had not been sufficient water in the river to flow through the ditch to any appreciable extent until the spring and summer of 1915, and it had caved in and dirt had accumulated in it to some extent at that time.
The charge in the alternative writ, among other things, is that in 1910 the railroad company wrongfully and negligently caused and permitted large amounts of drift-wood and other material to obstruct the flow of said river, near its said bridge, and in 1912 it wrongfully erected on its right-of-way a solid embankment from fifteen to twenty feet high from a point about two hundred feet west of said bridge to a point about one-half mile west thereof, where its tracks had previously been on piles and trestles, and did not construct openings through said embankment to connect with the drain or lowland running south of said railroad, so as to afford an outlet to drain and carry off the surface water accumulating on the lands within said district; that by reason thereof the flow of said river during stages of high water and the surface water accumulating on the lands embraced within said district from drainage, rain-fall and overflowing of said river in the months of June and July, 1915, were so obstructed that the water backed up and was caused to overflow the lands embraced within the drainage district and destroyed the crops thereon, and the ditches of relator were partially filled with sediment and the flow of water therein obstructed and said ditches rendered useless.
The return put the matters charged in the alternative writ in issue. Any new matter in the return was denied by the reply.
The evidence, in the main, sustained the allegations of the relator, and showed damage to the crops on some of the lands within the district, from the overflow complained of. There was evidence that the river had been obstructed a few years before by debris left in it when appellant's bridge was constructed, but that such obstructions had been substantially, but not entirely, removed. But the evidence failed to show any substantial damage to the ditch of the drainage district. In fact, one of the relator's witnesses testified that most of the ditches he saw were scoured out by the flood and were deeper and wider than they were before. There was no contradiction to this testimony. The embankment caused the water at times to be from sixteen to twenty-two inches higher on the north side than it was on the south side of the embankment, and to back the water up on the land north of it, where it stood for some days longer than it otherwise would have done. It also caused a current to run east along the embankment nearly or quite to the bridge, where it turned south and escaped with accelerated speed.
There was no allegation in the alternative writ and no evidence of any plans or specifications for bridges or other structures having been made by the drainage district engineer, or any one, or of the size or character of the openings through its embankment, which appellant would be compelled to make to comply with the peremptory writ. To remove the embankment and restore the trestle as it was before, the appellant's engineers estimated would cost $ 18,000. For this reason the Kansas City Court of Appeals, to which the appeal was taken, transferred the case to this court.
A plat showing the ditch, river, boundaries of the district and railroad right of way was introduced by relator. The material part of it, showing the south two miles or more of the ditch, is as follows:
[SEE ILLUSTRATION IN ORIGINAL]
After hearing the evidence the court granted the peremptory writ, which, following the alternative writ, commanded the appellant company to remove the obstructions in the river and "construct and maintain suitable openings" through said right-of-way and roadbed and ditches "along said railroad about one half mile westward from a point about two hundred feet west of said bridge over said Chariton River, to connect with drains and carry off the water, including surface water, that may accumulate on the land in said Adair Drainage District, so that such waters will not be obstructed in their flow, and that relator recover" costs, etc.
At the commencement of the trial, the appellant objected to the introduction of any evidence "for the reason that the alternative writ does not contain facts sufficient to constitute a cause of action against this respondent."
At the close of relator's testimony, the appellant moved "the court to quash the alternative writ of mandamus heretofore issued in this case and to dismiss this cause," which the court overruled, to which appellant excepted. This motion was...
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