Gluck v. Terminal R.R. Ass'n of St. Louis

• Decision Date: 15 January 1986
• Docket Number: No. 67067,67067
• Citation: 702 S.W.2d 476
• Parties: William B. GLUCK, et al., Respondents, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

Page 476

702 S.W.2d 476

William B. GLUCK, et al., Respondents, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.

No. 67067.

Supreme Court of Missouri En Banc.

Jan. 15, 1986.

Robert C. Ely, Joseph J. Simeone, St. Louis, for appellant.

Kenneth A. Leeds, Charles F. Dufour, St. Louis, for respondents.

James W. Erwin, Donald J. Stohr, St. Louis, James E. Darst, Brentwood, amicus curiae, for Metropolitan St. Louis Sewer Dist.

WELLIVER, Judge.

This is an appeal from a trial court order mandating that appellant, Terminal Railroad Association of St. Louis (TRRA), alter its existing culvert at its right of way on West Point Drive at the East Fork of Black Creek in Maplewood, Missouri. Respondents initiated this equitable action under § 389.660, RSMo 1978 seeking a mandatory injunction against appellant. The trial court issued the injunction. On appeal, appellant's principal argument is that § 389.660 is superseded by the adoption of the Metropolitan St. Louis Sewer District (MSD) and does not apply in St. Louis County. The court of appeals held that the statute was not inconsistent with the creation of MSD, but the court reversed and remanded the cause for the joinder of MSD as a necessary party to the suit. MSD, thereupon, filed both a motion for rehearing as an amicus and a motion to intervene. We ordered transfer and decide the case as if on original appeal. Mo. Const. art. V, § 10. We affirm.

At the beginning of the century, TRRA acquired the right of way to build a track over the East Fork of Black Creek, north of what is now West Point Drive and west of Laclede Station Road. In order to prevent obstructing the flow of the creek, TRRA constructed a culvert under the track in 1903. They cast the structure out of concrete. The culvert has undergone only minor changes since its construction, and it now stands 10 feet wide, with 6 feet vertical sides and has a semicircular top having a radius of 5 feet. At its highest point at the arched center, the culvert is 11.1 feet high and is skewed on an angle in a southwesternly direction. It is about 200 feet long and has an opening of between 100 and 110 square feet. The railroad track lies slightly downstream from and about 25 to 30 feet above the culvert.

Respondents' properties lie adjacent to and upstream from the culvert, and they claim that during heavy rains the water in the watercourse floods their property. Alleging that the opening of the culvert is insufficient to accommodate the water flow, respondents brought this equitable action under § 389.660, RSMo 1978, ¹ which requires that a railroad provide an adequate opening through a railbed to allow the water to flow unobstructed. The trial court heard substantial evidence indicating that these properties flood approximately three times a year causing considerable damage to respondents' real and personal property. The flooding in this area already has been the subject of a previous lawsuit. See Ogle v. Terminal R.R. Ass'n of St. Louis, 534 S.W.2d 809 (Mo.App.1976).

Respondents elicited testimony from expert witnesses that the culvert has a current capacity to accommodate 1,100 cubic feet of water per second (c.f.s.), but that at a flood stage an opening capable of accommodating 3,275 c.f.s. is required to carry off the water. James W. Thompson, an Assistant Plan Review Engineer for MSD, testified that MSD has been studying the watershed since the early 1960s. According to Thompson, MSD design criteria would require that the culvert be enlarged to accommodate 3,275 c.f.s. Glenn E. Borgard, the vice-president of a civil engineering consulting firm, also testified. MSD engaged his firm to conduct a stormwater management study for the Black Creek watershed. The study was completed in the fall of 1980, and it concluded in part that approximately 3,300 c.f.s. was presented to the culvert while the current capacity of the culvert is inadequate to handle a severe rainfall. Borgard stated that the "culvert was restrictive in the flow of [water] in [the] channel ... [at] that location." His firm assigned a high priority to this particular project out of approximately 118 different drainage problems in this watershed.

Appellant virtually concedes that the opening in the culvert is inadequate, but tried to persuade the trial court that a mandatory injunction is not warranted. First, appellant argued that widening the culvert would not solve the serious flooding problem. Either water backing up from a flood stage downstream would impede any substantial increase in water flow through a wider culvert or excess water flowing through a new culvert would increase the flooding downstream. Appellant offered the testimony of a consulting engineer, Henry M. Reitz. Reitz testified that it was possible that downstream from the culvert the water was backing up and creating a higher water level downstream than upstream. Under these circumstances, he explained, "the presence of the culvert or the size of the culvert or its capacity would really not be material." A higher water level downstream would mean "there'd be a slight tendency for reversal to flow back upstream through the culvert." If the water level was about equal on both sides of the culvert, the size of the culvert would not appreciably affect the flooding upstream, according to Reitz. Appellant had adopted this same approach to the problem back in 1948, when it recognized that the culvert was too small but observed that enlarging the culvert would not prevent the flooding because water was backing up downstream from the culvert. TRRA again expressed this sentiment in 1957 and suggested that the Sewer District was in the best position to resolve the situation.

Appellant's next defense before the trial court was that § 389.660 is superseded by the adoption of the Metropolitan St. Louis Sewer District. TRRA argued that only MSD is capable of assessing the problem and taking into account the effect on the entire watershed both upstream and downstream from the culvert. Thompson testified that before any work could be done, TRRA would have to receive MSD approval. Appellant, therefore, argued to the court that only the Sewer District could examine the entire situation, and any piecemeal approach would be inconsistent with the reason for adopting MSD and that the adoption of MSD superseded all laws inconsistent with its adoption.

Lastly, appellant presented evidence that if it was required to enlarge the opening of the culvert, it might choose to remove the culvert and abandon that line of track. The chief engineer for TRRA testified that the cost of enlarging the culvert would be at least $500,000. He further testified that the company only received a profit of around $35,000 a year from serving the businesses along this segment of the line. ²

After hearing the evidence, the trial court entered its findings of fact and conclusions of law. The trial court found that the opening in the culvert is inadequate and as such presents "a serious obstruction to the flow of the creek and causes greater flooding problems than would exist if Black Creek were free to flow." The court further found that the water backs up upstream, and has caused extensive flooding resulting in real and personal property damage. In its conclusions of law, the court found that appellant had not complied with its statutory duty under § 389.660, that the adoption of and ordinances passed by MSD neither conflicted with § 389.660 nor precluded others from making improvements when MSD could have exercised its jurisdiction. The court, thereupon, ordered that appellant create an opening across and through its right of way and roadbed that would carry, without obstruction, not less than 3,300 c.f.s. through the opening or openings. ³

We note at the outset that this case involves a statutorily granted right to a mandatory injunction, and the legislature did not contemplate that our rules governing the issuance of writs be followed. Rather, the cause is to be initiated in the circuit court and is subject to appeal through the customary process. The initial and crucial question on appeal is whether § 389.660 is superseded by the constitutionally authorized adoption of the Sewer District.

The predecessors of § 389.660 can be traced back well into the nineteenth century. See e.g., 1851 Mo. Laws, at 451; 1874 Mo. Laws, at 121. The reason for adopting such laws stems, no doubt, from the ancient common law doctrine concerning surface water. The old common law rule, referred to as the common enemy doctrine, provided that "each landowner has an unqualified right, by operations on his own land, to fend off surface water as he sees fit without being required to take into account the consequences to other landowners, who have the duty and right to protect themselves as best they can." Reutner v. Vouga, 367 S.W.2d 34, 41 (Mo.App.1963). See generally Goll v. Chicago & A. Ry. Co., 271 Mo. 655, 197 S.W. 244 (1916). Overflow waters were treated as "surface water." Missouri, however, along with most other jurisdictions, modified the harshness of this doctrine. Yet it was the struggle to arrive at a fair and workable common law approach coupled with the growth of the railroad industry that led the legislature in 1874 to establish a rule of liability. See generally Snodgrass & Davis, The Law of Surface Water in Missouri, 24 Mo.L.Rev. 281, 286-88 (1959); White v. Wabash R. Co., 207 S.W.2d 505, 508-09 (Mo.App.1947); Murphy v. St. Louis-San Francisco R. Co., 205 Mo.App. 682, 226 S.W. 637 (1920). ⁴

During this last century, considerable case law interpreting the statute has developed. In Jones v. Chicago, B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5 (1938), this Court aptly summarized the general rule:

Now under the plain terms of the statute it is made the duty of a railroad company to construct and maintain suitable openings across and through its right of way and roadbed so as to afford sufficient outlets to drain...