Gorman v. Chicago, Burlington and Quincy Railroad Company

• Decision Date: 02 July 1912
• Parties: ELLEN GORMAN, Appellant, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY et al., Respondents
• Court: Missouri Court of Appeals

148 S.W. 1009

166 Mo.App. 320

ELLEN GORMAN, Appellant, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

July 2, 1912

Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.

REVERSED AND REMANDED.

STATEMENT.--This suit was commenced in the circuit court of the city of St Louis on December 24, 1909. The trial court sustained a demurrer to plaintiff's amended petition and the plaintiff declining to plead further judgment went in favor of defendant upon both counts. Whereupon the plaintiff duly prosecuted her appeal to this court. The said amended petition, omitting caption, proceeded as follows:

"Plaintiff by leave of court, files this, her amended petition, and states that the defendants are corporations and plaintiff is the widow of Francis Gorman, who died at the city of St Louis on or about the 7th day of June, 1904, leaving a last will and testament whereby after bequeathing the sum of five dollars to each of his children he devised and bequeathed to plaintiff all other property, whether real, personal or mixed, which he owned at the time of his death; that at the time of his death the said Francis Gorman was, and for over twenty years immediately prior thereto had been, the owner of a parcel of ground lying, being and situate in the said city of St. Louis, and described as follows, to-wit: A tract of land situated in United States survey No. 926, having a front of 660 feet on the south line of Aurora avenue, and extending southwardly between parallel lines for a distance of 341 feet, eight inches and thence southwardly to the center line between Aurora and Humboldt avenue, on which center line it measures 620 feet, said tract being composed of lots 31 and 32 of that part of the subdivision entitled Garden Suburb by John How, which lies east of the Wabash Railroad, excepting therefrom the triangle off of the southeast corner conveyed to the St. Louis, Keokuk & Northwestern Railroad company; that the said will of said Francis Gorman was duly admitted to probate by the probate court of said city of St. Louis and his estate has been duly administered in said court and finally settled, and all the debts thereof and all the legacies provided for in said will have been duly paid, and plaintiff, ever since the death of said Francis Gorman, has been and still is the owner of said real estate and of the claim against defendants for all the damage done to said real estate as hereinafter set forth, and which accrued to said Francis Gorman during his lifetime; that on or about the 1st day of February, 1892, the St. Louis, Keokuk & Northwestern Railroad Company became the owner of a tract of ground which bounded plaintiff's said ground on the east and also on the south; that the natural lay and conformation of all the ground in said vicinity is such that the drainage of the surface water is towards the south and east into Harlem creek and the Mississippi river; that on or about the 1st day of January, 1893, the said railroad company built a high railroad embankment on its property running in a general northeasterly and southwesterly direction, which passed within a few feet, to-wit, fifty feet, of the southeast corner of plaintiff's said tract of ground, and from said embankment at a point near the said southeastern corner of plaintiff's said property the said railroad company built another railroad embankment branching off from the first one mentioned and curving around towards the west and lying south of the south line of plaintiff's said property; that on or about the 1st day of September, 1897, the said railroad company for a nominal consideration conveyed so much of the said property owned by it adjoining plaintiff's property on the south as was not required for its railroad embankments to the defendant St. Louis and Kansas City Land Company, but said last named defendant held said ground for the use and benefit of said railroad company until the latter sold out to the defendant railroad company and since the said land company has held and now holds same for the use and benefit of the defendant Chicago, Burlington & Quincy Railroad Company and said last named defendant controls said St. Louis and Kansas City Land Company and controls the said land, and the use thereof; that on or about the 1st day of January, 1901, the said St. Louis, Keokuk & Northwestern Railroad Company sold, conveyed and delivered all its railroads and property of every kind to defendant Chicago, Burlington and Quincy Railroad Company and as part of the consideration therefor the latter company assumed all debts, liabilities and obligations of said St. Louis, Keokuk & Northwestern Railroad Company; that the said railroad embankments are solid embankments about fifteen feet high without any openings, ditches, pipes or culverts that would drain the water that came against the same; that by reason of the want of such provisions for drainage, water gathers and ever since said embankments were built always has gathered against said embankments and stood upon defendants' property and formed a pond thereon into which defendants drain or permit to drain or flow other waters, slops and filth from a roundhouse, a boarding house and privies in the vicinity; that said pond overflowed defendants' said property and onto plaintiff's said property and at times covers and stands upon the whole thereof, carrying and depositing said filth thereon; that the waters in said pond are and always have been foul and emit foul odors and the deposit of said filth on plaintiff's said property and the said overflow thereof has depreciated the value thereof $ 3700; that by reason of the overflow of plaintiff's said property and its liability to be so overflowed as aforesaid neither plaintiff nor the said Francis Gorman was able to sell or lease said property or to use same for any purpose or derive any income therefrom since the date of the construction of said embankments, whereby plaintiff has been damaged $ 3700.

"Plaintiff therefore prays judgment against defendants for the sum of $ 7400.

"For a second cause of action plaintiff makes the facts set forth in the first paragraph of her petition a part of the statement of this cause of action and further states that said embankments and said pond constitute continuing nuisances which plaintiff is entitled to have abated and as to which she has no adequate remedy at law, and plaintiff therefore prays that defendants be required to abate said nuisances and that they be enjoined from maintaining said solid embankments without adequate provision for the drainage of water that may come against same, and from maintaining said pond or of draining any filth therein, and plaintiff prays the court to grant her such other and further relief as may be equitable and just."

The demurrer which was sustained is as follows: "Now come the defendants in the above entitled cause and demur to the petition of the plaintiff, and for grounds thereof say that the facts stated in said petition are not sufficient to constitute a cause of action. And for further grounds of demurrer, these defendants say that it appears upon the face of said petition that the embankments, the erection of which is complained of, were built in the year 1893, more than ten years prior to the filing of this suit, and that by reason thereof, under the statutes of the state of Missouri, sections 4262, 4272 and 4273, Revised Statutes 1899, the plaintiff should not be permitted to maintain this action."

The only question here, is whether the trial court erred in sustaining said demurrer.

Judgment reversed and cause remanded.

Kinealy & Kinealy for appellant.

(1) A landowner who gathers waters upon his land and then casts them upon the premises of another is liable in damages and can be enjoined. Paddock v. Somes, 102 Mo. 226; Grant v. Railroad, 149 Mo.App. 306; Lewis v. Springfield, 142 Mo.App. 84; Ready v. Railway, 98 Mo.App. 467. (2) Where the nuisance is an abatable one, successive actions for damages must be brought, and any damages suffered within the proper Statute of Limitations may be recovered. Pinney v. Berry, 61 Mo. 359; Schoen v. Kansas City, 65 Mo.App. 134; Bielman v. Railway, 50 Mo.App. 151; McGowan v. Railway, 23 Mo.App. 203. (3) The prayer of the petition is not part of the statement of the cause of action. McGrew v. Railway, 87 Mo.App. 250; Emmert v. Meyer, 65 Mo.App. 609; State ex rel. v. L. & L. Co., 161 Mo. 664.

Robert & Robert for respondent.

(1) When the fact appears upon the face of the petition that the action is barred by the Statute of Limitations, such can be taken advantage of by demurrer. State to use v Bird, 22 Mo. 470; Boyce v. Christy, 47 Mo. 70; Coudrey v. Gilliam, 60 Mo. 98; Henoch v. Chaney, 61 Mo. 129; State ex rel. v. Spencer, 79 Mo. 314; Gas Co. v. City, 11 Mo.App. 55; Burrus v. Cook, 117 Mo.App. 384, 215 Mo. 496. (2) When injury inflicted is of a permanent character and goes to the entire value of the estate, but one recovery can be had and suit not brought until after the statute has run...