Dickson v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 30 April 1880
• Citation: 71 Mo. 575
• Parties: DICKSON v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 575

DICKSON

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Shanklin, Low & McDougal for appellant.

1. The defendant was entitled to be notified of the existence of the nuisance, if there was one, and to be requested to abate it, before being sued. Penruddock's Case, 5 Coke 101; Slight v. Gutzlaff, 35 Wis. 677; Johnson v. Lewis, 13 Conn. 307; Pillsbury v. Moore, 44 Me. 154; McDonough v. Gilman, 3 Allen 264; Woodman v. Tufts, 9 N. H. 88; Pierson v. Glean, 2 Green (14 N. J. Law), 36; Huckenstine's Appeal,70 Penn. St. 102; Thornton v. Smith, 11 Minn. 15; Grigsby v. Water Co., 40 Cal. 396; Noyes v. Stillman, 24 Conn. 15; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143; Crommelin v. Coxe, 30 Ala. 318; West v. Louisville, &c., R. Co., 8 Bush 404; Beavers v. Trimmer, 25 N. J. L. (1 Dutch.) 97; Dodge v. Stacy, 39 Verm. 558.

2. If it be held that the work was of such a character that its continuance was necessarily an injury, then, as it was permanent in its nature, the injury was complete when the work was finished, and the Chicago & Southwestern Railway Company became liable for the permanent damage done plaintiff; and, as successive actions for this injury could not have been maintained against it, no action can be maintained against this defendant. Powers v. Council Bluffs, 45 Ia. 652; Troy v. Cheshire R. R. Co., 23 N. H. 83; Beswick v. Cunden, Cro. Eliz. 520; Walter v. Wicomico Co., 35 Md. 385.

Bennett Pike and Vinton Pike, for respondent, cited Pinney v. Berry, 61 Mo. 364; Tate v. R. R. Co., 64 Mo. 154; Adams v. Popham, 76 N. Y. 410; Brown v. R. R., 12 N. Y. 494; Ang. on Watercourses, § 331a.

NORTON, J.

This is a suit for damages caused by flooding plaintiff's lands. In the first count, the petition substantially alleges that plaintiff was the owner of certain lands along, through and adjoining which a certain stream of water flowed; that, in 1873, the Chicago & Southwestern Railway Company, in constructing its road, did, by means of an embankment, divert and turn said stream of water from its natural channel so as to overflow plaintiff's lands; that the said Chicago & Southwestern Railway Company, in July, 1873, leased its said road to the defendant, the Chicago, Rock Island & Pacific Railroad Company, which entered and took possession of said road, and has operated the same ever since; that defendant, with full knowledge that the said stream of water had been turned and diverted from its course as aforesaid, continued, and since its entry upon said road has kept and maintained, said embankment erected across said stream by the said Chicago & Southwestern Railway Company; that, by reason of the diversion of the water of said stream, and the continuance thereof by defendant, his lands and lots were rendered unfit for cultivation, and that his crops upon the same for the years 1874 and 1875 were entirely destroyed, whereby he was damaged in the sum of $10,000. The second count charges defendant with having erected the embankment causing the injury, and the third count charges defendant with having entered upon the land of plaintiff without authority and graded its road bed.

The answer to the first count is a specific denial of what is therein alleged, except as to that part of it which charges that defendant, with full knowledge of the diversion and turning of said stream of water, continued the same. The only denial of this allegation is in the following words: “Defendant denies that, at the time of entering upon said railroad for the purpose of operating the same as aforesaid, this defendant had any knowledge that the alleged stream of water had been diverted from its course, as stated in the petition, or otherwise, except as hereinafter stated.” The answer to the second and third counts is a general denial. On the trial, plaintiff had judgment for $700 damages, from which defendant has appealed, and assigns for error the action of the court in receiving evidence and in giving and refusing instructions.

1. ACTION FOR NUISANCE ERECTED BY DEFENDANT'S PREDECESSOR: rule as to notice.

On the trial, defendant objected to the introduction of any evidence on the first count of the petition, on the ground that it did not state a cause of action, because it contained no allegation that defendant, who was a mere lessee, had been specially notified of the existence of the nuisance and requested to abate it. The rule as contended for by counsel was first laid down in Penruddock's Case, 5 Coke 100, and on the authority of that case the rule has been adopted by many of the courts of this country referred to in the brief of counsel, but this court, in the case of Pinney v. Berry, 61 Mo. 359, where the identical question here presented was involved, after having its attention called to Penruddock's Case, supra, declined to sanction the rule therein declared. Judge NAPTON, speaking for the court, observed: “It seems to be agreed in the most recent decisions that a request to abate is unnecessary. Indeed, very eminent judges have maintained that no notice of any kind was necessary, and that this doctrine, originating in Penruddock's Case, which was a quod permittat prosternere, is not applicable to our modern actions on the case. The better opinion, however, seems to be that, in order to maintain an action for damages resulting from a nuisance on defendant's land, when such nuisance was erected by a previous owner before conveyance to defendant, it is only necessary to show that, before the commencement of the action, defendant had notice or knowledge of the existence of the nuisance. All the defendant's instructions required special notice and request to abate, and they...