Harrelson v. Kansas City & A. R. Co.

• Decision Date: 12 July 1899
• Citation: 52 S.W. 368,151 Mo. 482
• Court: Missouri Supreme Court
• Parties: HARRELSON v. KANSAS CITY & A. R. CO. et al.

52 S.W. 368

151 Mo. 482

HARRELSON v. KANSAS CITY & A. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

July 12, 1899.

RAILROADS — DRAINAGE — LICENSES — EQUITY.

1. Where plaintiff's ancestor granted to a railroad company a right of way across his land, and, as part of the consideration, the railroad company constructed its embankments so as to drain the land to the best advantage, plaintiff cannot compel the railway company to change its embankments because natural changes have made the drainage insufficient.

2. Where a landowner, for a consideration, has granted to a railroad company a right of way, he must abide by all the inconveniences necessary for the safe operation of the road, and cannot compel the company to maintain an unsafe trestle in order that his land may be better drained.

3. Where a landowner has granted a license to a railroad company to maintain certain embankments,

he cannot allow the road to pass into the hands of innocent third persons without asserting his rights, and then ask equity to aid him in removing the obstructions.

4. A railroad company is entitled to a reasonable discretion in providing an outlet for storm water which accumulates on adjoining lands, and cannot be compelled to cut its embankment at any particular place.

5. Storm waters from plaintiff's land, which formerly passed out through a large trestle in each of two parallel railroads, owing to natural changes passed through one of the trestles, and then turned for 1,000 feet along the embankment of the other road, and went out through a small trestle. Held, that plaintiff was not entitled to an injunction compelling the defendant to keep open the small trestle.

6. In a doubtful case, equity will not interfere, unless plaintiff's rights have been established by law.

Appeal from circuit court, Clay county; D. C. Allen, Special Judge.

Bill in equity by William H. Harrelson against the Kansas City & Atlantic Railroad Company and the Hannibal & St. Joseph Railroad Company. From a decree dismissing the bill, plaintiff appeals. Affirmed.

This is a suit in equity, in which the plaintiff seeks to require each of the defendants to make an opening in its railroad embankment to permit a stream of water to flow in what the plaintiff alleges is its natural course. The petition states that the plaintiff is the owner of a certain section of land in Clay county, through the north half of which there are high bluffs, extending east and west; that the lands to the north of the bluffs are high lands, and those to the south are river bottom lands, under cultivation, and of great value for agriculture; that there are two branches, natural water courses (Prather branch and Russell branch), running down from the high lands to the foot of the bluffs on plaintiff's land; that thence they turned east, and, until the erection of the obstructions complained of, flowed on in a natural channel, and emptied their waters into Rock creek, just east of plaintiff's land; that, of these two branches, Russell was west of Prather, and in its course to Rock creek, when it reached the point where Prather came down into the bottom lands, the two streams united in one course, and flowed together to Rock creek; that in 1890 a railroad corporation of this state, known as the Chicago, Kansas City & Texas Railroad Company, acquired a right of way over that part of the land, and, in the construction of its road, built an embankment across the course of those united streams, leaving no opening for their waters to flow through; that in 1894 the defendant the Kansas City & Atlantic Railroad Company became the owner of that embankment, and has ever since maintained the same and operated its railroad on it; that long prior to 1890 the defendant the Hannibal & St. Joseph Railroad Company acquired a right of way on the land adjoining that now owned by the last-named defendant, and built its road on the same, but that prior to 1895 the Hannibal & St. Joseph Railroad crossed Prather branch on a trestle, leaving an open space beneath its tracks for the flow of the water down the channel; but in April, 1895, that company, over the objections of plaintiff, filled the space theretofore crossed by trestle with a solid embankment, and has ever since maintained the same and operated its railroad thereon; that the embankments so made and maintained by the two defendants constitute parts of one and the same dam across Prather branch, and cause the waters thereof to flow back over the bottom lands of plaintiff, rendering the same unfit for cultivation, and injuring and destroying the crops growing thereon. The prayer of the petition is for a mandatory injunction to require the defendants to make openings in their embankments sufficient to let the waters flow through as they were accustomed to do. The two defendants answer separately. The Kansas City & Atlantic Company avers that the railroad which it now owns is built on a right of way acquired by the Chicago, Kansas City & Texas Railway Company from one Nathan Harrelson, who then owned the land, and that the railroad was built as he desired and requested; that the embankment now complained of was built where it is at the desire and request of said Nathan Harrelson, and openings, draws, or culverts were placed where he requested, pursuant to a plan of drainage for these waters now complained of which he had designed before the construction of the railroad; that he well knew how the road was to be constructed, and how it was being constructed, and consented thereto; and that now he and his privies in blood and estate are estopped to complain of the manner in which the road is constructed. The answer also pleads that the road was built in July, 1889, and the plaintiff's right of action is barred by the statute of limitations. The answer of the Hannibal & St. Joseph Railroad Company admits that long prior to 1890 it acquired the right of way and built its road on the land in question, first crossing Prather branch on trestle, and afterwards, in April, 1895, filled that space with an embankment over which its railroad is now operated, and then pleads that the Chicago, Kansas City & Texas Railroad Company constructed the road now owned by the Kansas City & Atlantic Railroad Company in the manner as requested by Nathan Harrelson, as pleaded in the answer of its co-defendant, and that the embankment of that railroad forms a complete obstruction to the flow of the waters from Prather branch, if any there be, in that direction at that point; that that embankment is 50 to 75 feet distant from the embankment of this defendant, and the two in no sense constitute one obstruction: that, if the Prather branch waters are caused to flow back over plaintiff's lands, it is so because of the embankment of the other defendant, and not that of this defendant. The answer also pleads that this defendant is misjoined as a party to this suit, having nothing in common with the other defendant. The reply was a general denial.

F. M. Black and Claude Hardwicke, for appellant. Thos. R. Morrow, H. F. Simrall, Simrall & Trimble, N. O. Borders, and Spencer & Mosman, for respondents.

VALLIANT, J. (after stating the facts).

1. This cause and the cause of William H. Harrelson and Willis P. Williams against the same defendants, which was an action at law for damages for the same alleged wrong, were by agreement tried at the same time, on the same evidence, by the court, jury being waived. The finding and judgment were for the defendants in both cases, and, after due proceedings, the plaintiffs bring this cause here on appeal. This is a case in which the chancellor had a better opportunity of arriving at the facts than we have, — at least, he could do so with much more facility and confidence, — for the reason that much of the evidence relates to the topography and physical conditions of the subject in dispute, and these are illustrated by maps, which are explained by the witnesses; but in their explanations the witnesses frequently indicated the points on the maps by touching them, and designating them by the expressions "here" and "there," which method was clear enough to the chancellor, but is not so clear when read from a transcript of the stenographer's notes. However, with the three briefs of the respective council to assist in interpreting the evidence, we have arrived at reasonably satisfactory conclusions as to the facts.

The plaintiff owns a section of land in Clay county, lying a short distance northeast of Kansas City. A line of bluffs runs across the section east and west, dividing it so that the northern part is high lands, and the southern part Missouri river bottom lands. There are two branches which rise in the high lands, and come down to the foot of the bluff on plaintiff's land. The one called "Prather Branch" reaches the foot of the bluffs at a point about 400 feet west of what is called in the evidence the "little trestle," which is the trestle formerly open on the Hannibal road, now filled, and is 50 to 75 feet south of, and parallel with, the embankment complained of, of the Kansas City & Atlantic Railroad Company, called in the briefs the "Bates Company." The other, Russell branch, comes to the foot of the bluffs about 1,600 feet west of the point where Prather branch comes down. There was a great deal of evidence on the subject of these two branches, and their respective volumes and courses. From this we conclude that they were natural streams, running the greater part of the year, though dry at some seasons, having well-defined beds in the high lands, and down to the foot of the bluffs, and Prather branch, when charged only with its natural flow and with the natural flow of Russell branch, had a recognizable channel from the foot of the bluffs eastward to Rock creek, into which it emptied. But, while Russell branch was perhaps the larger of the two, its natural course, if it had one, after it reached the foot of the...