Cox v. Hannibal & St. J. R. Co.

• Citation: 174 Mo. 588,74 S.W. 854
• Court: United States State Supreme Court of Missouri
• Decision Date: 19 May 1903
• Parties: COX v. HANNIBAL & ST. J. R. CO.

74 S.W. 854

174 Mo. 588.

COX v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

RAILROADS — SURFACE WATER — DITCHES — STATUTORY PROVISIONS — CONSTITUTIONALITY — FAILURE TO CONSTRUCT — LIABILITY OF RAILROAD — PARTIES ENTITLED TO RECOVER.

1. Const. art. 4, § 34, provides that, where an amendment to a section is made by inserting words, "the words to be inserted, together with the act or section amended, shall be set forth in full as amended." Acts 1883, p. 51, provides "that section 810, c. 21, art. 2, of the Revised Statutes of the State of Missouri be and the same is hereby amended by adding to said section the following words." The whole section is then set out in full. Held to comply with the requirement of the Constitution.

2. Const. art. 4, § 28, provides that no bill "shall contain more than one subject." Acts 1883, p. 51, is entitled "An act to amend section 810, c. 21, art. 2, of the Revised Statutes of the State of Missouri, relating to private corporations, railroad companies," and makes it the duty of railroad companies to remove or destroy all dead vegetation and undergrowth on the right of way, and subjects any railroad that has failed to construct ditches to carry off surface water obstructed by its roadbed to a penalty, and gives the landowner a right of action for all damages caused by such failure. Held, not obnoxious to the Constitution.

3. Rev. St. 1889, § 2614, requires railroads to construct ditches along each side of their roadbeds to carry off water obstructed by such roadbeds, and authorizes county courts, on petition of landowners, to cause such ditches to be constructed, and to maintain an action for the cost against a railroad failing to comply with the act. It further provides that railroads shall be liable for all damages resulting from failure to comply with any of the provisions of the act. Held, that an action would lie to recover damages suffered by any person by reason of such failure.

4. The common-law rule as to surface water prevails in Missouri, and owners of lands may improve them by obstructing or diverting it, provided the work is not done in a reckless manner, resulting in injury to others.

5. The common-law rule as to surface water applies to railroads in the construction of their roadbeds, in the absence of statutory enactment.

6. Rev. St. 1889, § 2614, requiring railroads to maintain ditches to carry off water, the draining of which has been obstructed by the construction of such railroads, has reference to overflow water, which is surface water, as well as water from rainfalls and melting snow.

Appeal from Circuit Court, Clay County; E. J. Broadus, Judge.

Action by John Cox against the Hannibal & St. Joseph Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mosman & Ryan, Simrel & Trimble, and O. M. Spencer, for appellant. R. E. Ward and Claude Hardwicke, for respondent.

BURGESS, J.

This is an action to recover damages done to plaintiff's crops by water, in the years 1896 and 1897, by reason of the failure of the defendant company to construct and maintain ditches and drains along the sides of its roadbed, as required by section 810, Rev. St. 1879, amended by Act 1883, p. 51 (Rev. St. 1889, § 2614). The answer of the defendant set up the incorporation of the Kansas City, Galveston & Lake Superior Railroad Company; the change of its name to the Kansas City & Cameron Railroad Company; its acquisition of the title to the right of way through the land described in the petition in 1860; the construction of its roadbed through said lands in 1860 on a raised bed or embankment; that said railroad company shortly after began the operation of its railroad, and continued to maintain said roadbed and to operate its trains till the year 1870, when it was consolidated with, and became a part of, the Hannibal & St. Joseph Railroad Company; that the defendant company succeeded to all the property, rights, privileges, franchises, and immunities of the Kansas City & Cameron Railroad Company, took possession of said right of way, roadbed, and property, and has ever since owned, held, possessed, operated, maintained, and enjoyed said railroad embankment as originally constructed by the Kansas City & Cameron Railroad Company. Said answer further set up a general denial of all the allegations of the petition not expressly admitted, and pleaded a prescriptive right to maintain said roadbed in the form and condition in which it was originally constructed by said Kansas City & Cameron Railroad Company. The defendant in its answer further stated that the embankment of said roadbed as originally constructed was a permanent structure; that any damages resulting from its construction accrued at the time it was constructed, and belonged to the persons then owning the lands; and the defendant pleads the statute of limitation of 10 years in bar of said action.

On motion of plaintiff, the court struck out of the said answer the plea of prescriptive right to maintain said embankment, and the plea of the statute of limitation, to which ruling the defendant saved exception. The reply was a general denial.

The facts are that the land upon which the crops in question were grown is bottom land, and that portion of it cultivated by plaintiff, as appears from the following map, lies between the railroad track and Little Shoal, shaded by yellow pencil lines.¹ The land

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

along the bank of this creek was higher than the balance of the land where the crops grew. Defendant's roadbed was constructed upon an embankment extending from Little Shoal creek to Big Shoal creek, which for some years before the injury complained of had no openings therein through which the water could flow. Practically all of the land lying west of said roadbed between the points where it crossed said creeks drained eastwardly, and the waters therefrom drained into a gulch which passes through the culverts under the Wabash and Chicago, Milwaukee & St. Paul Railroads, and then into Big Shoal creek, at a point nearly southeast of the southeast corner of the land plaintiff cultivated. The present bank of Big Shoal creek, where said gulch drains into it, was formerly the bank of the Missouri river, which has since receded eastward.

The railroad of defendant was, at the time this cause of action accrued, so maintained that its embankment obstructed the course of drainage of lands fronting the west side of said railroad for a distance of 3,900 feet, so as the waters from said land would accumulate against said embankment and spread out, covering for that distance the public road, which adjoins and parallels the railroad, and the land plaintiff cultivated, for a distance of 1,900 feet fronting the railroad, and extending some distance back into his field. The railroad bed was thrown up in 1860, remained in that state during the war, and was completed in 1865, 1866, or 1867. About the year 1875 the public road was changed, and located 50 feet west of the defendant's right of way, and built up eight inches or a foot for 200 or 300 yards by being corduroyed. There was evidence tending to show that a clump of trees, or "thicket," stood a hundred yards or so north of the southeast corner of the land, and the lowest place in the field was 200 or 250 yards northwest of this thicket.

The water which destroyed the plaintiff's crops came out of Little Shoal creek at the sharp bend in the stream just below (west of) the railroad bridge, and at points below that bend, and flowed for half a mile south and southeast across the field to the depression or basis in the southeast part of the land, covering the wagon road and right of way, and settled against the embankment of defendant's roadbed. In 1896 and 1897 from 20 to 40 acres of land was covered by these flood waters of Little Shoal creek, which stood two feet deep in the deepest place in the field.

As to the sufficiency of the railroad ditch to carry off these flood waters, the evidence was conflicting, the evidence for plaintiff tending to show that the water stood two feet deep in his field when it had ceased to flow out through the railroad ditch; while a committee of four citizens, who went there expressly to examine the ditch, and other witnesses (for defendant), testified that the ditch was sufficient to drain all water off the right of way, though it would not drain the basin or depression in plaintiff's field, for want of lateral ditches across the county road to connect the basin with the railroad ditch, and let the water drain off through that ditch.

The evidence tended to show that the waters of Little Shoal creek were backed up; that Big Shoal creek, into which Little Shoal creek emptied opposite this land, was pretty high. Plaintiff's witness Hughes said: "There was a heavier rain in 1896 in Big Shoal than in Little Shoal. Q. And Little Shoal was unable to dispose of its waters because the height of water in Big Shoal? A. Yes, sir; I don't think it could. Q. And the waters of Big Shoal was bank full, and there was no place to dispose of the waters of Little Shoal? A. No, sir; the waters of Big Shoal backed up that way." Mr. Cox, the plaintiff, said: "Q. Do you know anything of the state of the waters in Big Shoal creek? A. It was pretty high, I suppose. Q. Was it not pretty high in the Missouri river, and was not Big Shoal creek backed? A. She might have been backed up some. I could not say." Carter, for the defendant, said: "The Missouri river in June, 1896, was high, and the water was backed up over a little field south of the bridge, over Big Shoal."

The plaintiff's witness Hughes was the agent for the land which was owned by the Phillips Investment Company. He rented the land to the plaintiff, and he and plaintiff and a man named Babcock had attempted to levee the bank of Little Shoal creek from the railroad bridge down stream several...