Alexander v. Wabash Ry. Co.
| Decision Date | 06 April 1931 |
| Docket Number | No. 17134.,17134. |
| Citation | 38 S.W.2d 545 |
| Parties | ALEXANDER et al. v. WABASH RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Gentry County; D. D. Reeves, Judge.
"Not to be officially published."
Action by F. M. Alexander and others against the Wabash Railway Company. From a judgment for defendant, plaintiffs appeal.
Affirmed.
E. C. Lockwood, of Albany, for appellants.
J. W. McKnight, of Albany, for respondent.
This is an action in two counts, brought under the provisions of section 4765, Rev. St. 1929, for the recovery of damages for injury and destruction of crops of plaintiffs growing on their land. The damages claimed occurred during the years of 1928 and 1929 and were caused by defendant's railroad embankment damming up surface water on plaintiffs' land. There was a verdict and judgment in favor of the defendant and plaintiffs have appealed.
Plaintiffs' testimony tends to show that defendant's railroad runs east and west across their land; that about fifty acres of the land is situated south of the railroad right-of-way; that defendant's railroad with its embankment complained of was built across the land in the year of 1879 and has been maintained ever since; that the land in question is in a river bottom with the natural slope and drainage north and east into Grand River, a natural watercourse running in a general easterly direction about a half mile north of the railroad and land of plaintiffs; that the natural slope and drainage of the surface water on plaintiffs' land lying south of the railroad is through and on to the right-of-way of the railroad embankment where it crosses plaintiffs' land; that not only the surface water from plaintiffs' land but such water from a large area to the south and west thereof drained on to defendant's right-of-way at the place in question; that because of defendant's failure to construct and maintain suitable and sufficient openings in its roadway embankment and suitable and sufficient ditches and drains along each side thereof to receive and carry the surface water and to discharge it through and carry it away from such openings, such surface water is and was gathered and discharged in large quantities on to the cultivated land of plaintiffs lying south of said railroad where it otherwise would not flow, causing the destruction of growing crops and preventing the planting and cultivation of crops thereon.
Plaintiffs' evidence further tends to show that there are some openings through defendant's embankment at the place in question but they are of insufficient size and construction to carry and discharge the flow of the surface water from normal rain-fall and such openings have become obstructed so that their carrying capacity has become greatly diminished; that the defendant has failed to construct any lateral ditches whatever on its right-of-way along the sides of its railroad embankment; that there are natural ditches and drains, adequate to receive and carry the waters in question, intersecting and connecting with defendant's right-of-way and discharging their waters into Grand River, and certain natural lakes, to the north of defendant's railroad, with which defendant might have connected lateral ditches without unreasonable expense; that in the years of 1928 and 1929 plaintiffs' land was planted to corn and by reason of water being backed upon the land the crops were destroyed.
Defendant's evidence tends to show that no lateral ditches were constructed along its embankment; that the flumes and conduits through defendant's railroad embankment, where it crosses plaintiffs' land, are sufficient to carry and discharge surface water flowing onto defendant's right-of-way on the south side of the railroad, and that the same are not obstructed; that plaintiffs' land in question is lower than defendant's right-of-way and that the natural drainage of the land is not toward the railroad; that north of its right-of-way and between it and Grand River there is higher agricultural land, privately owned, which obstructs and prevents the flow of water from defendant's right-of-way toward Grand River and that there are no natural outlets or public drains to carry away such water; that defendant could not, by the construction of lateral ditches on the north side of its right-of-way, discharge surface water from its right-of-way without flooding and damaging agricultural lands of other parties; that there are not now any ditches, natural watercourses or public drains adjacent to or intersecting defendant's right-of-way with which conduits leading through or under the embankment complained of, or lateral ditches along defendant's right-of-way in the vicinity of the embankment complained of, that could be connected without unreasonable expense.
The petition alleges that the natural drainage of plaintiffs' land to the south of defendant's right-of-way is to the north and east; that there are natural ditches, drains and watercourses connected with and emptying into Grand River and certain natural lakes to the north of the embankment which did and would, prior to the construction of defendant's roadbed, furnish natural and necessary drainage to said land; that the natural flow and drainage of the surface water of said land is and has been obstructed by defendant's roadbed; that defendant has failed for many years past to construct and maintain suitable and sufficient openings across and through said embankment and roadbed for said surface water to escape, and has negligently failed to construct and maintain suitable ditches and drains along its roadbed and embankment to connect with natural ditches, drains and watercourses; that such natural ditches, drains and watercourses are and were ample to carry off all of such waters, etc.; that plaintiffs' crops were destroyed because of the failure and neglect of the defendant to construct and maintain suitable and sufficient openings across and through its roadbed and to construct and maintain suitable lateral ditches and drains along each side of the roadway to connect with natural ditches, drains and watercourses crossing through and connecting with defendant's railroad right-of-way which were sufficient to carry and would have carried away surface water.
The answer admits the ownership of the land and embankment and states: "That there are not now, and never were at any time ditches, natural watercourses or public drains adjacent to or intersecting plaintiffs' (defendant's) right-of-way, with which conduits leading through or under the embankment complained of, or lateral ditches along plaintiffs' (defendant's) right-of-way in the vicinity of the embankment complained of, could be conveniently connected." The answer also contains a general denial. The second, fourth, sixth and seventh paragraphs of the answer plead the bar of the ten year statute of limitations and the fifth paragraph pleads the bar of the five year statute of limitations. The third paragraph pleads, as res adjudicata, the recovery of a judgment against defendant by plaintiffs' predecessors in title, "for like damages for the same cause happening in the year 1925, with full satisfaction thereof by defendant."
Plaintiffs filed a motion to strike from the answer the second, third, fourth, fifth, sixth and seventh paragraphs on the ground that they constituted no defense or defenses to the suit. This motion was overruled. Plaintiffs saved their exceptions. Plaintiffs did not file a reply.
At the trial plaintiffs sought to prove by three witnesses that, at the time defendant's railroad and embankment were built across the land in question, there were natural ditches and drains crossing and intersecting with the railroad right-of-way, which provided natural and adequate drainage for the lands in question now owned by plaintiffs on the south side of the railroad. The court sustained defendant's objection to this testimony. Complaint is now made of the action of the court in so doing. It is plaintiff's theory that this testimony was competent upon the question of negligence of the defendant in permitting the ditches, drains or watercourses to become filled up or obliterated that were present at the time the railroad was constructed and which carried off the character of surface waters that now are backed upon plaintiffs' land.
The common law in reference to the liability for damages done by the obstruction of surface waters by reason of the absence of openings in the railroad embankments was in force in this state prior to 1907, when the statute in question was amended. Since that time the statute has provided that it shall be the duty of any corporation constructing or owning any railroad in this state, "within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains, or watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad." (Italics ours.)
Assuming, for the sake of argument, that testimony would have been material as to whether defendant, or its predecessors in title, were guilty of negligence in permitting the ditches, drains or watercourses to fill up or become obliterated that plaintiffs' evidence tends to show were present at the time the railroad was constructed and that were then suitable to be connected up with suitable openings across and through the right-of-way and roadbed of the defendant and suitable ditches and drains along each side of the roadbed had they been constructed, had the question of a negligent filling up been raised by the...
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