Cottier v. Chicago, B. & Q. R. Co.

• Decision Date: 03 November 1930
• Docket Number: No. 16991.,16991.
• Court: Missouri Court of Appeals
• Parties: COTTIER v. CHICAGO, B. & Q. R. CO.

33 S.W.2d 173

COTTIER v. CHICAGO, B. & Q. R. CO.

No. 16991.

Kansas City Court of Appeals. Missouri.

November 3, 1930.

Rehearing Denied December 1, 1930.

Appeal from Circuit Court, Holt County; Guy B. Park, Judge.

"Not to be officially published."

Action by Fred T. Cottier against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

H. B. Pyle, of St. Joseph, A. M. Tibbels, of Mound City, and R. B. Bridgeman, of Oregon, Mo., for appellant.

W. Ray Weightman, of Jefferson City, and Frank Petree, of Oregon, Mo., for respondent.

BOYER, C.

Suit for damages under section 9953, Rev. St. 1919, for the loss of crops alleged to have been caused by water held on the land because of the failure of defendant to construct openings through its roadbed, which formed two boundaries of the land.

The petition is in 3 counts seeking recovery for damages occurring in 1925, 1926, and 1927. It alleges that defendant's railway extends along the east side of plaintiff's land, and that a branch thereof extends along the south side of said land upon embankments; that the natural drainage of a portion of plaintiff's land is to the south and east toward drains emptying into the Missouri river; that defendant's embankments obstructed and held the water upon plaintiff's land and destroyed his crops because there were no openings through the roadbed; that there are drains and watercourses south of the embankment running along the south side of plaintiff's land, and drains and watercourses east and southeast of the roadbed along the east side of plaintiff's land; that defendant could have maintained suitable openings and culverts through each of said roadbeds so that the water accumulating on plaintiff's lands would pass off the lands into drains and watercourses on the south and on the east and southeast of defendant's embankments, but that defendant failed and neglected to construct and maintain openings and culverts through its said roadbeds at the time in question, by reason of which water was caused to accumulate and to be held upon plaintiff's land and destroyed his crops. The allegations are similar in each count. On the first count, plaintiff seeks recovery of $1,000, the alleged value of 40 acres of wheat said to have been destroyed in the year 1925; on the second count for the loss of 22 acres of corn of the value of $660, occurring in the year 1926, and on the third count for the loss of 40 acres of wheat of the value of $1,000, in the year 1927.

The answer admits the corporate character and business of defendant, denies all other allegations, and as a further answer to each of the counts of the petition "defendant says that at all the times mentioned in plaintiff's petition, and in each and all of the counts thereof it maintained along the side of its railroad track and upon its right of way at the points mentioned in said petition a ditch connecting with a watercourse, which said ditch was at all times ample and sufficient to properly drain and carry off all surface water that fell or accumulated upon plaintiff's land adjacent to defendant's railroad and the construction and maintenance of said right of way ditch was a full compliance with the law and a full performance of all duty cast upon defendant under the law."

Evidence was presented by both sides, at the close of which defendant requested the court to give peremptory instructions covering each count of the petition. These were denied. The case was submitted to the jury on instructions requested and given by both sides. The jury returned a verdict in which it found for plaintiff on all counts of the petition, and in the sum of $633.33 on the first count; $283.33 on the second count, and $614.17 on the third count. Judgment followed accordingly, and defendant duly appealed.

The errors assigned on appeal have reference to (1) the refusal of the court to give peremptory instructions to find for the defendant; (2) the giving of instructions on behalf of plaintiff permitting recovery on all of the counts, and (3) the alleged error of the court in admission of testimony. We borrow from appellant's statement:

"In the years 1925, '26 and '27 plaintiff was in possession of a tract of land near Napier in Holt County, Missouri, sometimes called the Fisher tract. Roughly speaking, the tract was triangular. The defendant owned and operated two lines of railroad passing Napier. One line—the Omaha line— ran north and south along the east side of plaintiff's land. The other line—the B. & M. —ran east and west along the south side of plaintiff's land. Clear Lake—sometimes called Penny Lake—in a large curve formed the north and west boundary.

"Defendant's north and south line—Omaha line—passed along the east side of defendant's depot. The line from the west—B. & M. —as it approached Napier, curved to the south so as to pass along the west side of the depot and join the Omaha line a little south of the depot. Near the point where the B. & M. begins to curve toward the depot a track leaves the B. & M. and, curving northward, joins the Omaha line something near a quarter of a mile north of the depot. This connecting track was always spoken of as the "Y." The triangular piece of ground enclosed by these three tracks was also called the "Y." Within the triangle—the "Y"—are located the depot, the coal chute, the roundhouse and two or more other buildings. South and west of the railroad tracks is the little village of Napier. About a half a mile southeast of the depot the Omaha line crosses Squaw Creek ditch. * * *

"From a divide line which runs from northeast to southwest, plaintiff's land drained two ways—to the north and west toward Clear Lake, and south and east toward the "Y." Something near 40 acres lay south and east of the divide line. The fall from the divide line to the "Y" is—and was—from 9 to 10 inches—in one or two places about 10½ inches. In 1675 feet there is a drop of from 9½ to about 10½ inches."

There was no opening through any part of the roadbed bounding plaintiff's land. The above facts in reference to the situation are admitted to be substantially correct.

Questions which are controverted by the parties, and by the evidence, are (1) whether defendant maintained a sufficient ditch along its right of way to drain the accumulated water northward to Clear Lake, and (2) whether there were any "ditches, drains or watercourses" to the south and east of plaintiff's land with which defendant could connect by drains or ditches along its right of way and drain plaintiff's land through openings in its roadbed. In reference to the first question, the evidence on behalf of defendant tends to show that it constructed and maintained a ditch around the "Y" northward and along the west side of its north-bound track, and on the east side of plaintiff's land, through the divide and into Clear Lake with capacity and fall adequate to, and that it did, drain the land. Plaintiff's evidence tends to show that the railway ditch on the west side of the north-bound track between the "Y" and the divide was lower than at the divide; that the ditch was inadequate to drain and did not drain plaintiff's land, but in fact the water at times ran south in said ditch, and from other sources, accumulated and remained standing upon large areas of plaintiff's land and was so held by the defendant's roadbed.

Defendant put in evidence a plat prepared by its civil engineer who had made surveys, observations, and elevations in the vicinity of Napier. The plat was prepared by the engineer from notes made by him on the ground. It shows the physical contour of the land in the vicinity, with numerous elevations both north and south of the "Y" and north and south of the town of Napier, and along the boundary of, and over, plaintiff's land. From the elevations shown it appears that from the low point on plaintiff's land adjacent to the "Y," following the railway ditch northward to Clear Lake, there is a fall of approximately 4 feet. From the point where the left arm of the "Y" joins the north-bound track to Clear Lake is a distance of approximately 3,000 feet, and from the same point southward to Squaw creek is a distance of approximately 4,200 feet, with a fall in elevation from the low point of plaintiff's land, indicated as 851.4, to 848.1 at the bottom of Squaw creek, or a total fall of 3.3 feet. The testimony of the engineer tends to show, and affords the inference in behalf of plaintiff, that an opening could be made through the roadbed at some point between the "Y" and the divide on plaintiff's land that would lead the water from plaintiff's land down the east side of defendant's railway to Squaw creek. On direct examination he was asked whether it would be feasible or practicable to put an opening under and through the railroad tracks at any point between the "Y" there at Napier and Clear Lake. He said: "It could be done, but we haven't considered it feasible or practicable or desirable because of the fact that water gets higher on the east side of the tracks than it does on the west." There is evidence tending to show that, in times of heavy rainfall or flood, water accumulates and stands upon the ground on the east side of defendant's roadbed between the "Y" and Squaw creek. There is also evidence on behalf of plaintiff tending to show that water collecting in this area stands there because of a lack of ditches or drains to lead it to Squaw creek, and affords some substantial evidence on behalf of plaintiff that the water from plaintiff's land could be drained from an opening through defendant's north and south roadbed through ditches or drains along the east side of its right of way to Squaw creek, and that this would be sufficient to meet all ordinary occasions.

Squaw creek passes through the roadbed of the defendant about one-half mile south and slightly east of defendant's depot at Napier, and it appears that in years past the...