Grant v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 07 July 1910
• Court: Missouri Court of Appeals
• Parties: GRANT v. ST. LOUIS, I. M. & S. RY. CO.

130 S.W. 80

149 Mo. App. 306

GRANT v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. WATERS AND WATER COURSES (§ 119)— SURFACE WATERS—LIABILITY.

The rule that surface water is a common enemy against which a landowner may guard in his own way, and that in improving his own land in a proper manner he is not liable for turning surface water on his neighbor, is subject to the limitation that one cannot collect surface water on his own premises and discharge it in a body on the land of his neighbor to his injury.

2. WATERS AND WATER COURSES (§ 119)— SURFACE WATER—RAILROAD DITCHES.

A railroad may not construct a ditch on its right of way to collect surface water which had previously overflowed its track, and convey it to a point where it can be let through under the track, without the construction of a new opening, for that purpose, and discharge it on adjacent property to its damage.

3. DAMAGES (§ 1)—MEASURE OF DAMAGES.

Where one wrongfully inflicts injury on another, the measure of damages should be so gauged as to compensate as nearly as possible the person injured for the loss actually suffered, and the inquiry of damages should be so directed as to ascertain as nearly as possible the loss suffered by reason of the act, and the recovery must be limited to that amount.

4. DAMAGES (§§ 40, 44)—INTERFERENCE WITH BUSINESS—MEASURE OF DAMAGES.

Where the operation of a tile factory, using clay procured from the land of the operator for the purpose of manufacturing title, was interrupted by the wrongful acts of another causing injury to the property, the operator could recover the profits lost during the time the plant was idle, determined by proof of the ordinary capacity of the plant, the market for the product, and the expense of manufacture, including cost of labor, consumption of clay and fuel, and he could also recover the items of expense paid because the business was interrupted, together with special expense incurred in remedying the injury, and such other items as would compensate for the actual loss sustained; but expenses saved because the plant was not operated must be deducted.

5. DAMAGES (§ 62)—DUTY OF PERSON INJURED TO REDUCE DAMAGE.

The rule requiring one injured by the wrong of another to minimize the damage does not apply to an owner of land damaged by another collecting surface water and wrongfully discharging it on the land.

6. RAILROADS (§ 108) — CONSTRUCTION OF TRACK — WATERS AND WATER COURSES — DITCHES — STATUTES.

The purpose of Rev. St. 1899, § 1110 (Ann. St. 1906, p. 961), requiring a railroad to construct ditches along its right of way, is to require a railroad to so construct its road and drain it as to prevent injury to adjoining land, and the statute does not authorize a railroad to construct a ditch and collect surface water which had previously overflowed its track, and convey it to a point where it may be let through under the track, and discharge it on adjacent property to its damage.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by George W. Grant against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

James F. Green, for appellant. Cook & Cook and G. W. Munger, for respondent.

COX, J.

Action for damages caused by defendant digging a ditch along its right of way, collecting water therein, and discharging it in a body upon the premises of plaintiff. Trial by jury, verdict for plaintiff for $2,000, and defendant has appealed. The errors relied upon are the refusal of the court to sustain a demurrer to plaintiff's testimony, and alleged error in the instructions given on the part of plaintiff, and in the refusal of instructions asked by defendant.

The evidence shows that in June, 1906, plaintiff purchased land adjoining and on the north side of the right of way of defendant, and sought to operate a tile factory thereon, using clay procured from this land for the purpose of manufacturing tile; that the general drainage of the land was toward the north and west; that there was a trestle or bridge in defendant's road opposite the property of plaintiff through which a little water came. Just west of the ground of plaintiff there had been an opening under the grade of the railroad for the purpose of letting surface water through, and the water which passed through this opening was the surface water collected upon a large tract of land. This opening had become partially filled, and at times the track of defendant had overflowed at this point, but had not overflowed opposite plaintiff's land. To remedy this condition defendant constructed a ditch upon the south side of its track from the point where this partially filled opening was to the trestle which was opposite plaintiff's land, and turned the water which accumulated upon that side of the road under their track and onto plaintiff's land. As a result of this, plaintiff's ground was overflowed, sediment was deposited upon it, and his clay pits partially filled with this sediment, and he was unable to operate his factory during the months of April, May, and June, 1907, and part of the time in July and up to August 21st of that year. The evidence on the part of plaintiff showed the capacity of the plant for manufacturing tile, that he had a ready market for...