Boggs v. M.-K.-T. Railroad Co.

• Decision Date: 05 March 1935
• Docket Number: No. 32328.,32328.
• Parties: JAMES W. BOGGS v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

80 S.W.2d 141

JAMES W. BOGGS v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant.

No. 32328.

Supreme Court of Missouri, Division 2.

March 5, 1935.

Appeal from Boone Circuit Court. — Hon. H.A. Collier, Judge.

AFFIRMED.

Pendleton & Martin and Carl S. Hoffman for appellant.

(1) The court erred in striking out all that part of appellant's amended answer commencing with the second paragraph thereof, to-wit: the words, "Further answering" and ending with the words "United States of America," being the last words of the third paragraph on the last page of appellant's answer. (a) Appellant had the right to obstruct surface drainage from adjoining lands until the amendment of Section 1110, Revised Statutes 1899, was made by the Session Acts of 1907. Alexander v. Ry. Co., 38 S.W. (2d) 549; Sec. 1110, R.S. 1899; Sess. Acts 1907, pp. 169-170. (b) This action is founded on an abatable or continuing nuisance and not a failure to construct ditches. Hayes v. Railroad, 177 Mo. App. 208; Brown v. Ry. Co., 248 S.W. 14; Sec. 9953, R.S. 1919. (c) The Pearson Drainage District is a governmental agency. Land & Stock Co. v. Miller, 170 Mo. 240. (d) Appellant was forbidden by statute to construct the ditches after the formation and adoption of the plan of drainage by the Pearson Drainage District. Sec. 4425, R.S. 1919. (e) To compel the appellant to either construct ditches or be liable for damages resulting from surface and flood waters, after the formation of the Pearson Drainage District, the adoption and approval of its plan of drainage, the assessment of benefits and damages, and the condemnation of appellant's right of way, and prohibition placed on appellant by statute with reference to construction of ditches, constitutes the taking of appellant's property without due process of law in contravention of both the State and Federal Constitutions. Sec. 4425, R.S. 1919; Sec. 30, Art. II, Const. of Mo.; Sec. 1, Art. XIV, Amends. of Const. of U.S. (2) The court erred in allowing the respondent, over the objection of the appellant, to read his petition to the jury. Gorman v. St. Louis Merchant's Bridge Terminal Ry. Co., 28 S.W. (2d) 1025. (3) The court erred in refusing, at the close of respondent's case, to allow the appellant to amend its answer by pleading the additional defense that R.H. Boggs was a necessary party to the action. (a) R.H. Boggs was necessary party. Little v. Harrington, 71 Mo. 391; Sec. 1159, R.S. 1919; 36 C.J. 711, sec. 1957; Van Hoosier v. Ry. Co., 70 Mo. 149; Muldrow v. Ry. Co., 62 Mo. App. 435. (b) The measure of damages was the value of the crop destroyed. Blunck v. Ry. Co., 115 N.W. 1017; Pace v. Ry. Co., 174 Mo. App. 237; Hunt v. Railroad Co., 126 Mo. App. 263; Carter v. Railroad Co., 128 Mo. App. 57; Anderson v. Railroad Co., 129 Mo. 388; Deal v. Railroad, 144 Mo. App. 688. (4) The court erred in giving Instruction 1 as offered by respondent. (a) Instruction erroneously tells the jury that it was the duty of the appellant to construct ditches within three months after the completion of the railroad. Sec. 1110, R.S. 1899; Sess. Acts 1907, pp. 169-170.

Rubey M. Hulen and Edwin C. Orr for respondent.

(1) Jurisdiction of this appeal is properly in the Kansas City Court of Appeals. (a) No constitutional question was decided by the trial court in this case. The action of the trial court, in striking part of defendant's answer, was on grounds other than a constitutional question. Cook v. Globe Printing Co., 227 Mo. 523. (b) A determination of the question presented by appellant, on the action of the trial court in striking parts of its answer, does not require a construction of either the State or Federal Constitution. Love v. Central Life Ins. Co., 92 Mo. App. 198; Fay Fruit Co. v. McKinney Bros. & Co., 103 Mo. App. 307; State v. Hiller, 295 S.W. 133. (c) Appellant waived any alleged constitutional question in the case by requesting an appeal in the lower court to the Kansas City Court of Appeals. McCary v. McCary, 217 S.W. 547; State ex rel. Johnson v. Hiller, 295 S.W. 132. (2) The trial court struck from defendant's answer references to the formation of the Pearson Drainage District for the reason that the allegations showed upon their face that same could not be a defense to plaintiff's cause of action because the facts pleaded occurred subsequent to the infliction of the damages upon which plaintiff's cause of action was based. (3) It was not reversible error for plaintiff to read its petition in the trial court. (4) Plaintiff's son, R.H. Boggs, had no interest in the subject matter of this action and was not a necessary party. (a) The proper measure of damages in a suit of this character is the rental value of the land. Stanley v. Railroad, 121 Mo. App. 545; Woolston v. Blythe, 251 S.W. 150. (b) In the trial court plaintiff and defendant joined in trying the case on the theory that the proper measure of damage was rental value. No objection was made by defendant in the trial court to evidence as to the rental value of the land. (c) Defendant cannot on appeal change its theory adopted in the trial court. Wertz v. Railroad Co., 40 S.W. (2d) 518. (5) Instruction 1, given on behalf of the plaintiff, was a proper declaration of law. Carson v. Shaft, 221 S.W. 825; Carson v. Ry. Co., 184 S.W. 1039; Carson v. Ry. Co., 190 S.W. 949. (a) Defendant joined in trying the case in the trial court on the theory that defendant was required to dig ditches within three months after construction of the roadbed, and requested the trial court to so instruct the jury and it cannot, on appeal, change the theory it adopted in the trial court. Caine v. Physicians' Indemnity Co. of America, 45 S.W. (2d) 907. (6) No error was committed by the trial court in submitting the cause to the jury.

COOLEY, C.

This case, which comes to the writer on reassignment, was certified to this court by the Kansas City Court of Appeals in like manner and for the same reason as the case of Pearson Elevator Company v. Missouri-Kansas-Texas Railroad, 336 Mo. 583, 80 S.W. (2d) 137 decided herewith and we take jurisdiction for the reason therein stated. This case, like the Pearson Elevator Company case, is an action for damages resulting from the defendant's failure to cause to be constructed and maintained ditches along its railroad as required by Section 9953, Revised Statutes 1919, now Section 4765, Revised Statutes 1929 (3 Mo. Stat. Ann., p. 2158). Plaintiff obtained judgment for $700 from which defendant appealed, the appeal being granted to the Kansas City Court of Appeals, where by a divided court the judgment was affirmed and the cause was by that court certified here as in the Pearson Elevator Company case. This case is similar in certain essential respects to the Pearson Elevator Company case and has been treated here by the parties as substantially a companion case, in so far as similar points are presented.

Plaintiff sues for loss of the rental value in 1929 of a tract of ninety-eight acres of land owned by him and described in his petition. It is situated in the Missouri River bottom east of New Franklin. Defendant's railroad runs in a general east and west direction north of plaintiff's land, which is close though not quite adjacent to defendant's right-of-way, there being a strip of land three or four hundred feet wide between plaintiff's land and the railroad. A small stream called Salt Creek comes out of the hills north of the railroad and some distance west of plaintiff's land, flows eastward on the north side of the railroad to a point some two miles east of plaintiff's land, where it turns and passes through a bridge or "double culvert," in the railroad to the south side thereof and thence continues to the Missouri River. The railroad through that part of the river bottom is built on an embankment four or five feet high. Plaintiff's evidence tends to show that the natural slope and drainage of his land is toward the northeast and that prior to the construction of the railroad his land drained in that direction into Salt Creek and that when overflow water from Salt Creek came upon it such water would drain off in a short time without causing damage to crops or preventing cultivation of the land; that the railroad was constructed about 1892 and that thereafter surface water from rainfall or from overflow from Salt Creek which frequently came over the railroad or through certain openings in the embankment farther west and got upon his land could not drain off promptly as theretofore, being held by the railroad embankment until it evaporated or sank into the soil; that in 1929 this situation was such that his land in question could not be cultivated and he lost the use of it; that defendant did not construct and maintain a ditch or ditches along its railroad as required by the statute; that such a ditch on the south side of the railroad connecting with Salt Creek could have been constructed practicably and at reasonable cost and would have drained plaintiff's said land and prevented the injury complained of. Such further reference to the facts as may be necessary will be made in the course of this opinion.

The sufficiency of plaintiff's petition is not challenged. By its answer defendant admitted its incorporation, that it was engaged in operating the railroad and denied generally the other allegations of the petition. It then alleged:

"Further answering, the defendant states that the Pearson Drainage District was incorporated by decree of the Circuit Court of Howard County, Missouri, on June 1, 1928, under and pursuant to the provisions of Chapter 28 of Article 1 of the Revised Statutes of 1919 of the State of Missouri, for the purpose of draining the lands of plaintiff and others; that the land described in plaintiff's petition and all of defendant's right-of-way, adjacent to and both east and west of plaintiff's land is included in the said district; that on the 9th day of January, 1929, the plan of drainage of said...