Carson v. Schaff

• Decision Date: 10 May 1920
• Docket Number: No. 13545.,13545.
• Citation: 221 S.W. 825
• Parties: CARSON et al. v. SCHAFF, Receiver.
• Court: Missouri Court of Appeals

221 S.W. 825

CARSON et al. v. SCHAFF, Receiver.

No. 13545.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be officially published."

Suit by Hinton V. Carson and Sallie T. Carson against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

Carl S. Hoffman, of Sedalia, J. W. Jamison, of St. Louis, Paul Prosser, of La Plata, and R. K. Bridges, of Fayette, for appellant.

Sam C. Major, of Fayette, and Warner, Dean, Langworthy, Thomson & Williams, of Kansas City, for respondents.

BLAND, J.

This is a suit for damages to plaintiffs' crops, caused by defendant's failure to construct and maintain suitable ditches on the sides of his railroad track adjoining plaintiffs' land and to connect such ditches with Salt creek, a natural water course, as required by section 3150, R. S. 1909. Plaintiff, Hinton B. Carson, recovered from the railroad company for the loss of his 1910 and 1912 crops. See Carson v. Railway, 190 S. W. 949.

Plaintiffs own a farm near Lloyd Station, in Howard county, Mo., lying in bottom lands adjoining and just south of defendant's railroad right of way, which runs east and west. A natural water course known as Salt creek comes down the hill lying to the north, turns east, parallel to the railroad on the north side thereof. About three miles east of plaintiffs' land the creek crosses over to the south side of the railroad and continues on to the Missouri river. A heavy rainfall causes Salt creek to overflow to such an extent that water comes over the railroad embankment onto plaintiffs' land, and by reason of the fact that there was no drainage the water remains on plaintiffs' land until it evaporates or is absorbed by the soil.

In their petition plaintiffs seek to recover on the theory that the defendant could have constructed and maintained a suitable drainage ditch along the south side of his railroad bed to drain off the flood water on the subsidence of the overflow of Salt creek. There was a verdict and judgment for plaintiffs, and defendant has appealed.

Plaintiffs' evidence tends to show that be fore the railroad was built the natural drain age of their farm was through sloughs and depressions running northeast into Salt creek; that the farm was well drained in this way; that in 1894 the railroad company constructed along the north side of what is now plaintiffs' farm a solid embankment, without openings, 3½ or 4 feet high; that during the time intervening from the construction of this embankment to the flood complained of the land on the north side of the railroad had become filled in so that its surface was nearly level with the top of the embankment. The bank of Salt creek at the place where defendant's railroad passes over the same was about 3½ feet lower than plaintiffs' land along the west side thereof where it joined the railroad's right of way. So there was evidence of a fall from plaintiffs' land on the south side of the railroad, east to Salt creek, of a little more than one foot to the mile on the surface of the ground. There was further evidence that when Salt creek was at its ordinary stage there was a fall of 13½ feet from the surface of plaintiffs' land to the top of the water and about 3 feet additional to the bottom of the creek.

Plaintiffs' engineer testified that plaintiffs' land sloped northeastwardly toward the railroad embankment and that a ditch 10 feet wide and 3 feet deep constructed from their land east along the railroad's right of way to Salt creek would have drained all of plaintiffs' land except about 2 acres which were lower than the level of their land at the embankment. There were several farms between plaintiffs' land and the point where the railroad crossed Salt creek. These farms had some ridges and swales on them which sloped northeastwardly toward the railroad embankment. There were also dikes built on the east edges of some of these farms to protect the same from overflow from Salt creek. The railroad ran upon the embankment from plaintiffs' farm until it crossed Salt creek and in that distance it ran slightly down hill.

Defendant's first point is that his demurrer to the evidence should have been sustained for the reason that the evidence, as defendant claims, shows that in order for defendant to have constructed a ditch on the south side of its right of way it would have had to have constructed the same 10 feet wide and 3 feet deep through dikes and ridges to Salt creek; that these high parts and ridges protected the lands of proprietors lying between plaintiffs' land and the creek; that the construction of such a ditch through such ridges and dikes would have caused the overflow water from plaintiffs' land to be brought down onto the land of such proprietors and thereby rendered defendant liable for the injuries such proprietors would sustain; that the presence of such ditch, cut through such ridges and dikes, would have allowed water to back up from Salt creek and spread over the lands of these proprietors whenever a rise occurred in Salt creek; and that a reasonable construction of the statute would not require defendant to construct a ditch of that character. In connection with this point defendant would have us consider the evidence in a very favorable light to him instead of in the most favorable light to plaintiffs, as we are required to do.

There is no evidence of any ridge of any consequence except one. In fact, one of the witnesses testified that there was but one ridge, and plaintiffs' evidence tends to show that this ridge was not by any means a high one. One of their witnesses testified that none of the ridges were "in any ways near" the top of the tracks. There is no evidence as to the height of the dikes. At least one of them, the one on the east side of plaintiffs' land, was gone. One of plaintiffs' witnesses was asked on cross-examination, if the ditch were dug and a cut thus made through the ridges, if the water from the creek when it rose would not have a tendency to overflow the land between plaintiffs' farm and the creek. The witness testified that, if the dirt from the ditch was placed properly, there could be no overflow upon such lands. We have no doubt but that under the evidence it would not be an unreasonable...