Brown v. Thompson

• Decision Date: 02 August 1937
• Docket Number: No. 5851.,5851.
• Parties: BROWN et al. v. THOMPSON.
• Court: Missouri Court of Appeals

108 S.W.2d 423

BROWN et al. v. THOMPSON.

No. 5851.

Springfield Court of Appeals. Missouri.

August 2, 1937.

Rehearing Denied September 4, 1937.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Action by R. A. Brown and another against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded with directions.

Thos. J. Cole, of St. Louis, and Dearmont, Spradling & Dalton, of Cape Girardeau, for appellant.

Byron Kearbey and Ted M. Henson, both of Poplar Bluff, for respondents.

FULBRIGHT, Judge.

This action was instituted before a justice of the peace in Butler county to recover a judgment for damages from defendant by reason of surface water overflowing certain lands belonging to plaintiffs, lying along and adjacent to the west side of the right of way of defendant's railroad. The petition was in three counts. The answer was a general denial. From a judgment in the justice court, defendant appealed to the circuit court and the cause was tried April 23, 1936, again resulting in a verdict and judgment in favor of plaintiffs on each count in the total sum of $175, and defendant duly appeals to this court.

Plaintiffs own about 65 acres of land near Neelyville in Butler county, and, with the exception of a small portion thereof, the land is on the west side of the railroad track and a great portion of it is low, flat, and swampy. Plaintiffs' residence is located on the northeast corner of this tract of land and just a short distance from the railroad. On the south side of this tract is a strip of timber about 300 feet in width. The timbered strip is directly west of the railroad track and is about 1,000 feet south of the residence of plaintiffs. This timbered strip abuts the railroad on the west. The land east of the railroad and adjacent thereto is also in timber. It is owned by a man of the name of Cramer.

The slope of the land is in a southerly direction. Some of the testimony is to the effect that it is slightly to the southwest, other testimony that it is to the southeast. The land which plaintiffs claim defendant caused water to overflow is near the timberland, west of the railroad and southwest of plaintiffs' residence. At the place in controversy, the railroad track runs north and south and plaintiffs' land abuts it on the west. On the west side of the railroad track and east of plaintiffs' land, defendant, several years ago, constructed a ditch, which originated near the residence of plaintiffs and extends south along the west side of the railroad track and east of plaintiffs' land, a distance of about 1,000 feet to an opening or passage way under the railroad bed about 3 × 3 feet, the depth of the ditch ranging from about a foot to 3½ feet. The evidence tends to show that when the ditch was maintained and kept cleaned little or no damage was done to crops growing on the lands now owned by plaintiffs; but that during the last few years defendant has neglected the ditch, permitted the same to be filled with brush and debris, and that by reason of such neglect and the failure of defendant to keep its ditch along the west side of its railroad embankment and adjacent to plaintiffs' land cleaned during the years 1933, 1934, and 1935, plaintiffs' land overflowed with surface water, and that during the years 1933 and 1934, certain growing crops were destroyed by overflowing water, and that in 1935, by reason of the overflow of the said lands, plaintiffs were prevented from cultivating about 12 acres.

Defendant urges several assignments of error, the second of which is that the court erred in failing to sustain the demurrer offered by the defendant at the close of plaintiffs' case and again at the close of all the evidence in the case. In passing upon the demurrer, we, of course, must be governed by the well-known rule, requiring no citations, that all the evidence favorable to plaintiffs must be accepted as true, and plaintiffs are entitled to the most favorable inferences that may be drawn therefrom, and all evidence adverse to plaintiffs must be disregarded, even though it comes from plaintiffs' own witnesses.

R. A. Brown, one of the plaintiffs, testified as follows: "I live near Neelyville, Butler county, Missouri. William T. Brown and I own the land described in the petition and owned it in 1933, 1934, and 1935. We own about 65 acres. The railroad runs north and south, but it strikes a curve right on my land.

"Q. What is the condition of the land in that particular neighborhood? Is it level? A. Yes sir, it is kindly flat. * * *

"Q. Is your land lower or higher than the land above you? A. Well, it is lower and the water comes down there on me.

"Q. In what direction does the water flow, Mr. Brown? A. Well, it goes south. The railroad embankment is about three or four feet higher than the surface of the land. The surface water from the land above me comes down there and hits the railroad on the west side of the county road and runs across the dirt road on me down there. * * * The railroad company has a small ditch along the west bank of its right of way, but they've let it fill up. I saw the section boss cleaning out the ditch in 1930. When it is properly cleaned out, it will carry the water. In 1931 the ditch was fairly good and the railroad did some work on it. It did not do any work in 1932 and it was practically filled up in 1933. It was filled with trash and bushes where they cut off the right of way. They just cut the brush and let them lay there and the trash would wash in the ditch, on account of the failure to clean the ditch, the water run down there to the railroad and it couldn't get down. There is a culvert or a tunnel down the track down there about half a quarter below me and that tunnel runs the water into the slough and into Old Cane Creek, but the water couldn't get down there because the ditch was filled up. The water north of my place finally goes into Old Cane Creek. After the water gets by my place, it goes through that tunnel under the railroad and on into the slough and on into Old Cane Creek. That has always been the natural drain for the water. The ditches were in bad condition. The ditches were filled with weeds, bushes, dirt and rock.

"My house is about forty-five steps west of the railroad track. The result of the filling up of the ditches was that the water ran down there and hit there where the dirt road crosses the railroad and it backed up and ran over the road around my house and barn and all over my place. The water would get 8 or 10 inches deep around my barn. The railroad runs in a northern and southern direction there in front of my house. The railroad makes a curve down nearly half a mile from my house. It then runs southeast. In 1933, the surface water overflowed my land every time it comes a big rain. It runs over the road down there and damaged my crops. * * * In 1933 the surface water damaged 3 or 3½ acres of corn and peas. The corn and peas had been planted. I think the water got in there some time in August. I had about 3 or 3½ acres of corn practically drowned out. The cause of the overflow was that the water hit the railroad there and it couldn't get down to the slough and it just ran out on the road there — the ditch was filled up.

"I think that the reasonable value of corn in 1933 was around forty or fifty cents a bushel. The crop on this 3½ acres was practically destroyed that year and I got practically nothing off of it. At the time the water overflowed it, it was in good condition. The corn was practically raised when the water got over it and was average corn. I had other corn on the same character of soil that year and it made forty or fifty bushels to the acre. It was in the same field and the same character of soil.

"Q. Now what would you say was the reasonable value, Mr. Brown, of the corn that you say was destroyed? A. Well, it ought to have been worth about $50.00. The drains and ditches in 1934 were in the same condition.

"Q. Did the railroad company or their agents repair the ditches during the year 1934? A. Well, only they come down there and dug out the old road crossing down in the field, but it caved in right away. They did practically nothing toward cleaning out the ditches. They didn't do anything north of the property. The surface water flowed over my land in 1934. And in that year, the water run down there and couldn't get out. The railroad ditch was filled up. I had some corn, a little corn, and some peas in 1934. I had about the same number of acres.

"Q. How many acres, of peas did you have? A. About three or three and a half acres.

"Q. That was corn wasn't it? A. Well, the corn was about burned up, but the peas had come out.

"Q. What condition was the peas in? A. Well, they drowned out. I couldn't mow them. I mowed hay around there and it made purty good hay. They were stock peas, `Whipper Will' peas. * * *

"Q. Well, at the point where you say your land overflowed the year 1934, was that all in peas that year? A. Yes, sir. The reasonable value of the...