Boggs v. Missouri-Kansas-Texas R. Co.
| Decision Date | 23 May 1932 |
| Docket Number | 17359 |
| Parties | BOGGS v. MISSOURI-KANSAS-TEXAS R. CO. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Boone County; H. A. Collier, Judge.
Action by James W. Boggs against the Missouri-Kansas-Texas Railroad Company. Judgment for plaintiff, and defendant appeals.
Affirmed, and case transferred to the Supreme Court.
Pendleton & Martin, of Boonville, Harris, Price & Alexander, of Columbia, and Carl S. Hoffman, of St. Louis, for appellant.
Sam C. Major, of Fayette, Ruby M. Hulen, of Columbia, and Edwin C. Orr, of Columbia, for respondent.
Not being able to concur in the opinion originally written in this case by the judge to whom it was assigned, I shall endeavor to state my views in the following:
The action is one to recover damages for the loss of the use, or rental value, of 98 acres of plaintiff’s land for the year 1929 caused by the failure of the defendant railroad company to construct and maintain suitable ditches and drains along its railroad (the construction of which obstructed the drainage of said land), as required by section 9953, R. S. Mo. 1919 (now section 4765, R. S. Mo. 1929). The rental value, for loss of which the suit is brought, was alleged to be $20 per acre, and the damages were laid at $1,960. The jury returned a verdict for plaintiff in the sum of $700, whereupon defendant applied for an appeal to this court, and same was granted.
The petition alleged, among other things, the ownership and possession of the land involved; that the defendant’s railroad ran east and west, slightly north of plaintiff’s land which was in close proximity to said railroad; that the construction of the railroad obstructed the drainage of water from plaintiff’s land, and prevented it from passing off through its natural outlets, thereby rendering necessary the construction of ditches along the roadbed to connect with existing drains and water courses so as to afford sufficient outlet to drain and carry off the water that accumulated on plaintiff’s land along the railroad and roadbed; but it was confined thereon by reason of the construction of said roadbed, and there was thereby afforded no outlet for said water into the aforesaid drains and water courses with which ditches alongside the railroad could and should have been connected; that Salt creek was a water course east of plaintiff’s land which emptied into the Missouri river; that ditches alongside the railroad close to plaintiff’s land, rendered necessary by the construction of said railroad, could and should have been constructed connecting with said Salt creek; that defendant wholly failed and neglected to construct and maintain such ditches alongside the said railroad, and the roadbed impeded the flow of said water, and caused it to accumulate in great quantities on said land and remain there for a long space of time so that it was not possible to cultivate said particularly described 98 acres during the year 1929; that the rental value thereof was $20 per acre, and therefore judgment was asked for $1,960.
The answer admitted the construction and operation of the railroad as alleged, but denied every other allegation in the petition. For further answer, defendant stated that:
"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 district was filed in the said Circuit Court of Howard County, Missouri, and by said Court approved; that said plan of drainage called for the construction of a ditch down defendant’s right of way on the south side to connect with Salt Creek on the east ; that said plan included numerous other ditches, drains and levees to be erected and built on defendant’s right of way; that said plan of drainage as adopted and approved called for the condemnation, for the use of said Drainage District, of all of defendant’s right of way except that part actually occupied by its track and roadbed; said land being more particularly described as follows: [Here follows description.]" (Italics mine.)
Defendant further states that on January 14th, 1929, commissioners were appointed by said court to assess benefits and damages as provided by statute; that on February 20th, 1929, the commissioners filed their report with said court; that said commissioners’ report assessed the benefits against this defendant at $24,386.53; that on September 9th, 1929, the said court approved said commissioners’ report and that said benefits as approved by said court had been amended as to this defendant and the amount so approved was $25,051.43, and fee simple title to all of defendant’s right of way as hereinabove described was vested in said Pearson Drainage District." (Italics mine.)
Defendant further states that the benefits assessed to the defendant, as hereinbefore set out, are a binding and legal obligation owing by this defendant and a lien against its property; that the plan of drainage adopted by said Drainage District provides for a ditch down its right of way on the south to connect with Salt Creek ; and levees on the north side of said right of way, that under Section 4425 of the Revised Statutes of 1919, of the State of Missouri, the defendant was prohibited by law from constructing any ditch down its right of way which would connect with any ditch provided for in said plan of drainage of the Pearson Drainage District, or interfere with said plan of drainage, and the defendant further states that any ditch down its right of way to connect with Salt Creek would connect with ditches of said drainage plan and would interfere with said plan of drainage. Defendant further states that there was no place on the right of way for the construction of a ditch to connect with Salt Creek for the reason that all defendant’s right of way except that part actually occupied by the tracks and roadbed of said railroad, had been condemned by Pearson Drainage District for its use in connection with the drainage of said district as hereinbefore set out, and that fee simple title to all said part of said right of way so condemned was vested in said Drainage District and under its complete control and that this defendant had no right to use said land for any purpose." (Italics mine.)
Further answering, defendant says that to hold it liable for a failure to construct a ditch down its right of way to connect with Salt Creek for the purpose of draining plaintiff’s land after the incorporation of said Pearson Drainage District; and after the adoption of said plan of drainage, the assessment of $25,051.43 benefits against this defendant and the condemnation of all that part of its right of way for the use of said district as hereinabove set out, and in view of the said Section 4425 of the statutes, would be depriving the defendant of its rights and would constitute the taking of defendant’s property without due process of law in violation of Section 30 of Article 2 of the Constitution of the State of Missouri and of Section 1 of Article 14 of the Amendments to the Constitution of the United States of America." (Italics mine.)
That part of the answer above quoted was stricken out by the trial court, on plaintiff’s motion, as not constituting any defense to the action. The defendant objected and excepted, and properly preserved its exceptions.
The evidence in plaintiff’s behalf tends to show that the defendant’s railroad and right of way runs approximately east and west, perhaps bearing a little to the south, and is north of, parallel and in close proximity to, plaintiff’s land, Salt creek originates in the bluffs to the north and west of the railroad and of plaintiff’s land. Said creek from there flows south to the railroad and then turns eastwardly following along, and north of, the right of way to a point about two miles east of plaintiff’s land. There the creek turns south under a bridge in the right of way and continues from thence to the Missouri river.
The evidence further tends to show that the natural drainage and slope of plaintiff’s land is toward the north and east and into Salt creek, and, although prior to the construction of the railroad (its roadbed being between 4 and 5 feet high), wherever there happened to be an overflow of water from Salt creek onto the plaintiff’s land, the same would shortly drain off therefrom in such quick time as to cause no damage to crops thereon.
That the railroad was constructed in 1892, and its construction made a fill or roadbed about 4 ½ feet in height, and after that, whenever Salt creek overflowed across defendant’s track onto plaintiff’s land, it could not drain off promptly as theretofore, but the water was held thereon by the fill or roadbed which acted as a dam to keep it there until evaporation had done its work; that this situation was such in 1929 that plaintiff’s land could not be cultivated; and that same was not cultivated during the year 1929 because of the water damned up on plaintiff’s land by reason of the defendant’s roadbed, and its failure to construct and maintain the ditches required by the statute.
The evidence was further to the effect that ditches thus failed to be constructed and maintained as required by the statute and which would sufficiently drain plaintiff’s land,...
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