Bird v. Hannibal & St. J. R. Co.

• Decision Date: 10 April 1888
• Citation: 30 Mo.App. 365
• Parties: WILLIAM BIRD et al., Respondents, v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 365

WILLIAM BIRD et al., Respondents, v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 10, 1888

APPEAL from the Marion Circuit Court, HON. THEODORE BRACE, Judge.

Reversea.

STRONG & MOSMAN, for the appellant: Plaintiffs in their petition base their action on the insufficient capacity of the stone culvert. They recover upon proof showing that the channel of the stream leading to it was entirely obstructed through Evans' field; that a new culvert and new channel was provided in lieu of the old, and that this becoming choked and obstructed caused the flooding of the land. The plaintiff cannot sue upon one cause of action and recover upon another. Clement v. Yeates, 69 Mo. 623; Ensworth v Barton, 60 Mo. 511; Beck v. Ferrara, 19 Mo. 30; Hurth v. Anderson, 87 Mo. 354; Edens v Railroad, 72 Mo. 212; Current v. Railroad, 86 Mo. 62; Price v. Railroad, 72 Mo. 416; Ely v Railroad, 77 Mo. 34; Benson v. Railroad, 78 Mo. 513; Wayland case, 75 Mo. 556; Wise v. Railroad, 85 Mo. 178. The court erred in overruling defendant's motion to compel plaintiffs to elect on which one of the several separate, distinct, and independent causes of action alleged in the one count of the petition, they would proceed to trial, and to strike out all of the others. Rev. Stat., sec. 3512; Offield v. Railroad, 22 Mo.App. 607; Otis v. Bank, 35 Mo. 128; Brown v. Railroad, 20 Mo.App. 429; McCoy v. Yeager, 34 Mo. 134; Christal v. Craig, 80 Mo. 367; Dickson v. Railroad, 71 Mo. 575; Van Hoozier v. Railroad, 70 Mo. 145. Defendant's motion to make the petition more specific, definite, and certain, should have been sustained. The action was barred by the statute of limitations. Defendant had the right to change the channel of said branch, provided it restored it to its former state, or to such state as not unnecessarily to have impaired its usefulness. Rev. Stat., 1879, sec. 765. " " " " An act done under lawful authority, if done in a proper manner, can never subject a party to an action, whatever consequence follow, nor will a man be answerable for enjoying his property in a way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care and skill on his part." Radcliff v. Mayor, 4 N.Y. 200; Randle v. Pacific, 65 Mo. 325; Bellinger v. Railroad, 23 N.Y. 47; Boothby v. Railroad, 51 Mo. 318; Abbott v. Railroad, 83 Mo. 271. The action was one for negligence in the performance of a public work (Fowle v. Railroad, 112 Mass. 337), not for a nuisance. The negligence consisted in the construction of a stone culvert, which was too small to permit the water of said stream to pass off through the embankment unobstructed. The embankment of defendant's roadbed, and especially the stone culvert, of which complaint was made, were essentially permanent structures. Troy v. Railroad, 3 Foster (N. H.) 83; Fowle v. Railroad, 112 Mass. 337. The damages resulting from negligence of the character stated in the petition, to-wit, the insufficient size and capacity of the stone culvert, necessarily resulted from the alleged fact that it was originally constructed too small, and was an original damage. Whenever the work, causing the damage, is of a permanent character, that will continue without change, from any cause but human labor, then the damage is an original damage, and may be at once fully compensated. Troy v. Railroad, 3 Foster 83; Powers v. Council Bluffs, 45 Ia. 651; Baldwin v. Gaslight Co., 57 Ia. 51; Stogdill v. Railroad, 53 Ia. 341; Mahar v. Railroad, 91 Ill. 312; James v. City, 83 Mo. 567; Railroad v. McFarland, 43 N.J. Law, 605. As the alleged negligence was the act of constructing the stone culvert in the summer of 1853--twenty-seven years before the date of the injuries alleged in the petition, the plaintiff's claim is barred by the statute of limitations. Rights by prescription follow the statute of limitations in respect to time. Scherber v. Held, 47 Wis. 340; State v. Walters, 69 Mo. 463; James v. City, 83 Mo. 570. Even if the damage here were not an original damage accruing at the time of the construction of the culvert, the action as in the case of a continuing nuisance must be " commenced before the party committing the trespass or maintaining the nuisance, has acquired a prescriptive right to do so, by lapse of such a period as bars an entry on the lands of another." James v. City, 83 Mo. 570, and cases cited; Railroad v. McFarland, 43 N.J. L. supra. The plaintiffs' first instruction ignored the defense of the statute of limitations pleaded in the answer, and put in issue by the reply, and which was clearly made out in the evidence. Wyatt v. Railroad, 62 Mo. 411; Seymour v. Seymour, 67 Mo. 308; Jackson v. Bowles, 67 Mo. 601-8; Crews v. Lackland, 67 Mo. 621-2. It should have embraced every legal phase of the case. Cocker v. Cocker, 2 Mo.App. 451; Henry v. Bassett, 75 Mo. 92. This error is not cured by any other instruction given. Ins. Co. v. Hauck, 83 Mo. 121; Thomas v. Bobb, 45 Mo. 384. Said first instruction was bad, in that it directed the jury to find in one gross sum, the " injury to plaintiffs' herbage," in the series of four years mentioned. Bricker v. Railroad, 83 Mo. 393; Owens v. Railroad, 58 Mo. 394; McCoy v. Yeager, 34 Mo. 134; Otis v. Bank, 35 Mo. 128; Van Hoozer v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 576; Crystal v. Craig, 80 Mo. 371; Offield v. Railroad, 22 Mo.App. 607. This instruction was bad, in that it did not limit the damages to be assessed to such as plaintiffs had sustained at and prior to the commencement of this suit. Brown v. Railroad, 80 Mo. 460; Shearman & Redf. Neg., sec. 602; Crews v. Lackland, 67 Mo. 622. It is bad, in that it does not limit the damages to such sum as might be found to have accrued in a particular year.

H. S. PRIEST and GEORGE S. GROVER, also, for the appellant: Six separate and distinct causes of action were improperly united in one count of plaintiffs' petition. Van Hoosier's case, 70 Mo. 145; Dickson's case, 71 Mo. 575; Offield's case, 22 Mo.App. 607. This action is barred by the statute of limitations. Abbott case, 83 Mo. 288; Troy v. Railroad, 3 Foster [N. H.] 83; Powers v. City, 45 Iowa 652; Fowle v. Railroad, 112 Mass. 334; Stogdill v. Railroad, 53 Iowa 341; Baldwin v. Gaslight Co., 57 Iowa 51; Railroad v. Maher, 91 Ill. 312; Railroad v. McAuley, 121 Ill. 160; James v. City, 83 Mo. 567.

HARRISON & MAHAN, for the respondents: Appellees' cause of action is not barred by limitation. Appellant had no right under the statutes to divert the waters of a natural stream. Abbott v. Railroad, 83 Mo. 271; Imler v. City, 55 Mo. 119; Benson v. Railroad, 78 Mo. 504, 512. The foundation of this action is the obstruction of a natural water-course. The building of the stone culvert was not the cause of the injury. It assisted as far as it could in avoiding the injury. Trust Co. v. Cuffy, 26 Kan. 754; Angell on Limitation, sec. 300. The wrong committed by appellant in obstructing the natural channel of Bird's branch was in the nature of a nuisance, and a continuing nuisance; and appellees had the right to sue at any time, after any particular damage was done them; and the statute of limitations does not commence to run on such a cause of action, until the cause of action has accrued. Trust Co. v. Cuffy, 26 Kan. 755; Munkers v. Railroad, 72 Mo. 514; Van Hoosier v. Railroad, 70 Mo. 45; Benson v. Railroad, 78 Mo. 504; Wayland v. Railroad, 75 Mo. 552; Railroad v. Hays, 11 Tenn. 382. Both upon principle and authority appellant has not acquired rights by prescription. Wood on Nuisances, 736; Railroad v. Hays, 14 Am. & Eng. R. R. Cases, 284. The petition contains only one cause of action. Wayland v. Railroad, 75 Mo. 548; Munkers v. Railroad, 72 Mo. 514; Van Hoosier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575; Ray v. Railroad, 25 Mo.App. 104.

OPINION

ROMBAUER P. J.

As the appellant's main complaint in this case relates to the rulings of the court on the pleadings, to its rulings on questions of prescription and limitation, and to the fact that the plaintiffs were permitted to recover on another cause of action than the one stated in their petition, it becomes essential to set out the pleadings in detail.

The plaintiffs, in their petition, state the following facts: They are, and were at the date of the grievances complained of, owners in possession of certain lands on the banks of a natural water-course and stream known as Bird's branch, which, after traversing plaintiffs' land and crossing defendant's right of way, emptied into a natural stream known as Bear creek.

Many years ago the defendant built its railroad embankment, closing and filling the natural bed of Bird's branch, and dug a ditch from the point where the branch crossed defendant's right of way along said right of way to a stone culvert designed to pass the waters of the branch through its railroad bank to the other side thereof. The petition then proceeds as follows:

" Now the plaintiffs state that the said defendant, its agents, servants, and employes, did not construct, erect, and maintain the said stone culvert in a scientific, skillful careful, and prudent manner, as it was their duty to do, but, on the contrary, did construct the same in an unskillful, careless, and negligent manner, and have maintained, and have continued to use, and still use, the same constructed, notwithstanding its condition, owing to its construction in such unskillful, careless, and negligent manner, from said date to the time of bringing this suit; that the said stone culvert was not, is not, and never was, of size and capacity sufficient to permit the waters of said stream (and the waters of the rain and melting snow accumulating therein) to have sufficient outlet,

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