Goll v. Chicago & A. Ry. Co.

• Decision Date: 16 July 1917
• Docket Number: No. 18520.,18520.
• Citation: 197 S.W. 244,271 Mo. 655
• Court: Missouri Supreme Court
• Parties: GOLL et al. v. CHICAGO & A. RY. CO.

197 S.W. 244

271 Mo. 655

GOLL et al. v. CHICAGO & A. RY. CO.

No. 18520.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Maggie A. Goll, administratrix, and others, against the Chicago & Alton Railway Company. A demurrer to the petition was sustained, and there was a judgment accordingly, from which plaintiffs have appealed. Affirmed.

Plaintiffs sued for damages caused by overflow of land, alleging that such overflow was caused by the building of the embankment for the defendant's railroad. A demurrer to the petition was sustained, and there was a judgment accordingly, from which plaintiffs have appealed.

The parties have not furnished us with any plat of the situation, but we have made one in accordance with the facts, so far as they appear to us, as follows:

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

We have not shown Fish creek on that plat, for the reason that its relative position is not shown by the petition or by the statement of the appellants.

The plaintiffs sue as the heirs and the administratrix of the estate of Henry Goll, deceased, who owned the land in the year 1909, at the time of the alleged overflow. There were 280 acres of the land. The material parts of the petition are as follows:

"That at the point on said river where defendant's railroad crosses the same the channel of said river is so narrow that it does not afford a sufficient outlet for all of the water flowing into said river from upstream, from said point, in any ordinary freshet or rainy season. That in the original construction of said railroad, where the same crosses the bottom land adjacent to and west of said river, for a distance of nearly five miles, to a point where the high land is not subject to overflow is reached, defendant caused trestles to be constructed at intervals, whereon its ties and rails were laid, thus and thereby affording ample outlet for water from the Missouri river coming upstream and overflowing the banks of the river, which were thereafter collected into and flowed southward through Shockley's branch and Fish creek, two efficient and adequate drains through which the said overflow waters found its way across the said bottom and into the Missouri river, a short distance south of defendant's roadbed. That thereafter defendant negligently and wrongfully dammed up both of the said streams, and wrongfully erected, in lieu of the trestleworks, which constituted a rest and support for its ties and rails aforesaid, and which afforded ample and efficient openings through the roadbed as an outlet for the water which overflowed the banks of the river aforesaid, and prevented the backing up of said water on plaintiff's land, a high, strong embankment made of earth and stone, extending across the entire bottom lands and adjacent to the said river, from the west bank thereof, to the high land not subject to overflow, thus and thereby completely obstructing both of the aforesaid drains, and rendering the free and uninterrupted natural and efficient flow of said water carried by said stream in times of ordinary freshets and rainy seasons impossible, and caused the said water to be blocked and to be prevented from flowing, and to be backed up on the lands of plaintiff near said bank and to the northward thereof. That defendant has not since the year 1900 maintained any openings through and across its roadbed, or any ditches or drains along the north side of its right of way, connected with openings through and across its roadbed, connected with natural drains aforesaid, in which manner the said overflow water from the Missouri river could and would be carried off, which said openings and connecting ditches could and would have prevented the said water from backing upon and overflowing the lands of the plaintiffs as aforesaid.

"Plaintiffs say that the two aforesaid drains were ample and sufficient to carry the said overflow waters of the Missouri river and to prevent the same from backing up and overflowing plaintiff's said land, had defendant constructed proper and adequate openings through its said roadbeds and ditches along its said right of way connected with said drains, and had constructed proper and adequate drains along the north side of said roadbed connected with said openings. That during the month of June, 1909, because of said embankment so constructed and maintained by defendant as aforesaid, the water of the Missouri river was caused to back upon and overflow and completely inundate 280 acres of plaintiff farm land, destroying his crops, drowning and otherwise injuring his live stock, and damaging and injuring his buildings, fences, and orchards on said land, and injuring his said land in its actual and selling value, as follows:

                Seventy-four acres of corn, of the value of $ 2,211 00
                Ninety-nine acres of wheat, of the value of   3,465 00
                One acre of potatoes, of the value of .....     100 00
                Hay, of the value of ......................     100 00
                Meadow, of the value of ...................      50 00
                Ice, of the value of ......................      50 00
                Injury to buildings, fences, orchards
                 stock, etc. ..............................   4,200 00
                                                            __________
                    Total ................................. $10,176 00
                

"Plaintiff further states that by the use of ordinary care, and by the expenditure of ordinary sums of money, defendant's railroad, built, constructed, and maintained across the bottom lands aforesaid, could have been so built, constructed, and maintained as to afford ample outlet for the overflow water aforesaid, by maintaining sufficient openings through its roadbed and across its right of way connected with the two aforesaid drains, and by maintaining sufficient ditches along the north side of the roadbed, connected with said openings; but that defendant negligently and wrongfully failed, neglected, and refused to maintain such openings and such ditches, which said failure of defendant caused the overflow of said plaintiff's land, and the damage that resulted to him as aforesaid.

"Wherefore plaintiff prays judgment against the defendant on the first count of his petition in the sum of $10,176, and for his costs in this cause expended."

The second count of the petition is a suit for damages at common law growing out of the same overflow. Appellant's statement contains the following:

"The Missouri river, running in a west to east direction, constitutes the south boundary line of Chariton county, and from that point, where appellant's lands are located, across the south part of the county, the west to east line is almost direct. On the east side of Chariton county, and about a half mile north of the town of Glasgow, the Missouri river makes a very sharp turn, and flows past the town of Glasgow in practically a southern direction. At the south side of the town of Glasgow the Chicago & Alton Railway Company has built its bridge east and west across the Missouri river at the narrowest point in the Missouri river channel between Kansas City and St. Louis. Its roadbed runs practically parallel with the Missouri river from the west end of the Glasgow bridge to a point known as Gilliam Hill, 5½ miles west therefrom, on the south or Saline county side of the Missouri river. Appellant's lands are located at a point about 5 miles north and west of the central portion of this 5½ mile stretch of respondent's roadbed, on the north side of the river, in Chariton county. The land over which respondent's road is built from the west end of Glasgow bridge to Gilliam Hill is very low, and has been subject to overflow from the Missouri river from...