Hagge v. Kansas City S. Ry. Co.

• Decision Date: 05 November 1900
• Citation: 104 F. 391
• Parties: HAGGE et al. v. KANSAS CITY S. RY. CO.
• Court: U.S. District Court — Western District of Missouri

104 F. 391

HAGGE et al. v. KANSAS CITY S. RY. CO.

United States Circuit Court, W.D. Missouri, Western Division.

November 5, 1900

Allen &amp Allen, for complainants.

Lathrop Morrow, Fox & Moore, for defendant.

PHILIPS District Judge.

This is a bill by several distinct landowners in the state of Kansas in the nature of a mandatory injunction against the defendant railway company to compel it to remove certain obstructions consisting of an embankment built on its line of railway and certain pilings and debris under one of its bridges on the Marais de Cygnes river hereinafter designated as 'the river,' which are alleged to occasion the overflow of the complainants' land in times of high water. The defendant has demurred to the bill.

It is apparent on the face of the bill that much damage to the complainants' crops has resulted from the flow of what is known as surface water, for the obstruction of which, in building embankments and the like on the defendant's railroad, no cause of action exists against the defendant. Abbott v. Railroad Co., 83 Mo. 272; Benson v Railroad Co., 78 Mo. 504; Jones v. Railway Co., 84 Mo. 151; Walker v. Railroad Co., 165 U.S. 593, 17 Sup.Ct. 421, 41 L.Ed. 837. It is also apparent from the bill that a part of the injury complaint of results from the overflow, in times of unusual freshets, of the water from the natural banks of the river, for which no liability attaches to the defendant, unless it is made to appear that such overflow is occasioned by some unauthorized obstruction placed or maintained by the defendant in the natural channel. The allegations of the bill are not as distinct in this respect as they ought to be to present an exact issue for the taking of testimony thereon. The bill contains allegations respecting what is denominated a 'slough,' which in times of unusual water falls served as an outlet for waters overflowing from the river, and when it which it is alleged the defendant's predecessor obstructed by building embankments across it for its railroad bed. Sloughs are not recognized as water courses, which a railroad company, in the construction of its roadbed, may not fill up without openings for water which may seek an outlet in times of extraordinary rainfalls. Jones v. Railway Co., 18 Mo.App. 251; Railway Co. v. Schneider, 30 Mo.App. 620. There is another allegation respecting the closing of the natural channel of Mine creek near its outlet into the river, and conducting the water thereat through an artificial channel, constructed by defendant's predecessor, into the river; the only effect of which, in so far as it may be gathered from the averments of the bill, is that at the point of confluence eddies are formed, and counter currents are created in the river. But what effect this has in causing overflows of the river is not made clear. It does, however, appear from the bill that where the bridge of the defendant spans the river the pilings used in the construction of the bridge, after its completion, were cut off and left at such height above low-water mark of the stream as to occasion the accumulation of debris to such an extent as to obstruct the natural current of the river, thereby causing the water to run over the natural bank onto some of the lands in question. If so, this constitutes negligence in so cutting off and leaving the pilings, with consequent damages. Brink v. Railway Co., 17 Mo.App. 177. And if the defendant is maintaining such nuisance, and this occasions the overflow of the water, flooding the complainants' land and injuring the crops, it presents ground of action. This being so, as the demurrer is general, going to the whole bill, it would be bad, unless the other grounds thereof are well taken. Because of the involved allegations of the bill, it is difficult for the court, until all the facts are before it, to determine where the nonliability of the defendant occurs, and where its liability arises.

In respect to the jurisdictional question raised by the demurrer, some embarrassment arises by reason of the frame of the bill. The general rule in equity is 'that, if several persons be joined in a suit in equity, and have a common and undivided interest, though separable as between themselves the amount of their joint claim or liability will be the test of jurisdiction; but where their interests are distinct, and they are joined for the sake of convenience only, and because they form a class of persons whose rights or liabilities arose out of the same transaction, or have relation to a common fund or mass of property sought to be administered, such distinct demands or liabilities cannot be aggregated together for the purpose of giving jurisdiction, but each must stand or fall by itself alone. ' The authorities governing this question are principally Shields v. Thomas, 17 How. 3, 15 L.Ed. 93; Market Co. v. Hoffman, 101 U.S. 112, 25 L.Ed. 782; The Connemara, 103 U.S. 754, 26 L.Ed. 322; The Mamie, 105 U.S. 773, 26 L.Ed. 937; Gibson v. Shufeldt, 122 U.S. 29, 30, 7 Sup.Ct. 1066, 30 L.Ed. 1083; Clay v. Field, 138 U.S. 464, 11 Sup.Ct. 419, 34 L.Ed. 1044. As applied to the situation of the parties complainant here, the court is of opinion that all the separate landowners affected by the common nuisance, if any,-- that is, all those whose injuries result from one and the same cause, or separate causes combining to produce the common injury.-- may unite in one bill for injunctive relief, provided the extent of the injury to each separate landowner coming into the common suit amounts to $2,000, exclusive of interest and costs. Rich v. Bray (C.C.) 37 F. 273, 2 L.R.A. 225; Wheless v. City of St. Louis (C.C.) 96 F. 865. The bill, as to any whose...