Carson v. Missouri, K. & T. Ry. Co.

• Decision Date: 30 March 1916
• Docket Number: No. 17901.,17901.
• Parties: CARSON v. MISSOURI, K. & T. RY. CO.
• Court: Missouri Supreme Court

184 S.W. 1039

CARSON v. MISSOURI, K. & T. RY. CO.

No. 17901.

Supreme Court of Missouri, Division No. 1.

March 30, 1916.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

Action by Hinton V. Carson against the Missouri, Kansas & Texas Railway Company. Judgment for the plaintiff, and defendant appeals. Case transferred to the Court of Appeals.

Plaintiff sues in two counts to recover damages to his crops in the years 1910 and 1912, alleged to have been occasioned by overflow water upon his farm, which it is charged was caused to remain upon his farm in Howard county, because defendant failed to construct ditches along its railroad bed to the north of plaintiff's farm.

The railroad track and right of way is to the north of plaintiff's farm, and the farm abuts on said right of way. The railroad runs east and west, or practically so, at the point where the farm abuts the right of way. The negligence charged is that stated in the first count of the petition:

"That the construction of defendant's said railroad along and adjacent to plaintiff's said land obstructed the drainage of water therefrom and prevented it from passing off from said land through its natural outlets, and that ditches along the side of said roadbed connected with drains and water courses then existing were rendered necessary by the construction of said railroad so as to afford sufficient outlet to drain and carry off the water that accumulated on plaintiff's land alongside railroad, and was confined thereon by reason of the construction of said roadbed, and to afford an outlet for said water into such drains and water courses, with which ditches along the side of said railroad could and should have been connected. That at all the times hereinafter mentioned, there was east of plaintiff's land a water course known as "Salt creek"; that said Salt creek emptied into the Missouri river; that a ditch on each side of defendant's railroad near plaintiff's land could and should have been constructed connecting with Salt creek; and that such ditches were rendered necessary by the construction of said railroad. That defendant wholly failed and neglected to cause to be constructed and maintained ditches along the sides of its said railroad near the plaintiff's said land to connect with drains and water courses then existing as aforesaid so as to afford a sufficient outlet to drain and carry off the surface and overflow water that accumulated on plaintiff's said land south of defendant's said railroad. That, upon the contrary, the defendant, by its roadbed, impeded the flow of the water and caused it to be gathered together in great quantities on plaintiff's land on the south side of said railroad, and wholly neglected and failed to provide ditches upon the sides of its railroad to carry the same off to the natural water courses. That in consequence of defendant's failure to construct such ditches along the sides of said railroad as required by the statutes in such cases, plaintiff's said land on or about the 13th of June, 1912, was overflowed, and the water—by reason of the defendant's embankment and its roadbed—was retained upon plaintiff's said land for a long space of time, to wit, forty-five (45) days, and in consequence thereof the corn growing upon twenty-eight (28) acres of said land of the value of five hundred and four dollars ($504) was thereby totally destroyed, and the corn upon another twenty (20) acre tract upon plaintiff's land was damaged to the extent of two hundred forty dollars ($240.00), and the wheat growing upon thirty (30) acres of land was damaged to the extent of three hundred and fifty dollars ($350.00); all of said crops being then and there the property of this plaintiff and the damage and injury to the same was caused by defendant's neglect and failure to construct ditches upon the sides of its said railroad as aforesaid.

"Wherefore plaintiff says that he has sustained damages in the sum of one thousand ninety-four dollars ($1,094.00), and for which amount, with costs, he asks judgment."

The negligent charge in the second count for the year 1910 is the same. The answer of the defendant (1) denies the necessity of ditches, and denies that its roadbed occasioned the accumulation of water upon plaintiff's lands; (2) denies that ditches could have or should have been constructed to Salt creek, and denies that plaintiff suffered any damages in consequence of a failure to construct such ditches; (3) general denial; (4) defendant also pleads an unusual and extraordinary rainfall at the time stated in the petition; (5) that section 3150, R. S. 1909, upon which plaintiff relies, is violative of both the state and federal Constitutions, pointing to the exact provisions of each instrument claimed to have been violated by the act. The answer to the two counts are in point of facts practically the same. Reply, general denial.

Upon a trial before a jury plaintiff recovered by verdict $637.50 on first count, and $212.50 on second count. From the judgment entered upon such verdict, the defendant has appealed. The constitutional questions bring the case here.

J. W. Jamison, of St. Louis, for appellant. Sam C. Major, of Fayette, and Williams & Williams, of Boonville, for respondent.

GRAVES, P. J. (after stating the facts as above).

It will be noted that our jurisdiction is wholly dependent upon constitutional questions. These constitutional mandates, of which section 3150, R. S. 1909, is charged as being violative of, are section 20, article 2, of Missouri Constitution; section 30, article 2, of Missouri Constitution; section 53 of article 4 of Missouri Constitution; and the Fourteenth Amendment of the Constitution of the United States.

Section 20 of article 2 prohibits the taking of private property for private use without compensation, section 30 of article 2 is the due process of law clause. Section 53 of article 4 is the section relating to local or special laws. So much for the state Constitution.

The Fourteenth Amendment of the federal, Constitution (section 1 the portion invoked here), so far as...