Harrelson v. Kansas City & Atlantic Railroad Company

Decision Date12 July 1899
Citation52 S.W. 368,151 Mo. 482
PartiesHarrelson, Appellant, v. Kansas City & Atlantic Railroad Company et al
CourtMissouri Supreme Court

Appeal from Clay Circuit Court. -- Hon. D. C. Allen, Special Judge.

Affirmed.

F. M Black and Claude Hardwicke for appellant.

(1) This suit may be maintained against both defendants, and this, too, though each road owns a separate right of way, and though each road built and maintains a separate dam or embankment. In the first place the relief, to be of any avail, must be against both defendants; and in the second place the rule is well settled that it is proper, in equity cases like this, to join all parties who have a common interest in the question to be tried. It is not necessary that there should be a privity in estate, or any joint ownership in the property. 1 Pomeroy's Eq. Jur. (2 Ed.) secs. 255, 256, 269; note to sec. 261 on page 352; Wood on Nuisance, sec. 808; Bobb v. Bobb, 76 Mo. 419; Rinehart v. Long, 95 Mo. 396; Gartside v Gartside, 113 Mo. 358. (2) Here it stands admitted that the plaintiff is the owner of the lands which are injured because of the dams; the injury is proved beyond a shadow of doubt; and the only pretense of a defense is an alleged equitable estoppel, that is to say, a defense in equity. In cases like this a judgment at law is not necessary in order to lay a foundation for injunction or a suit to abate. Wood on Nuisance, sec. 785; 2 Story's Eq., sec. 927; 10 Am. and Eng. Ency. of Law (1 Ed.), p. 827; 1 Am. and Eng. Ency. of Law (2 Ed.), p. 66; Hayden v. Tucker, 37 Mo. 222; Turner v. Stewart, 78 Mo. 480; Carpenter v. Grisham, 59 Mo. 250. (3) Knowledge of the existence of a nuisance creates a liability, though the nuisance was created by a former owner. It is not necessary, in such a case, to allege or show a request to abate. Penney v. Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575. But it is not necessary to follow up this proposition, because in this case one defendant was requested to abate the nuisance and the other was warned and requested to leave the little trestle open. (4) The statute made it the plain duty of the railroad company to cross this stream or watercourse in such a way as not to impair its usefulness. In other words, it was the duty of the railroad company to bridge Prather branch; for there can be no doubt but it was a stream or watercourse. R. S. 1889, sec. 2543; Benson v. Railroad, 78 Mo. 504; Jones v. Hannovan, 55 Mo. 467; Rose v. St. Charles, 49 Mo. 509; Barnes v. Hannibal, 71 Mo. 449. (5) The defendants are liable for keeping up the dam, and thereby diverting the water from its natural channel. Dickson v. Railroad, 71 Mo. 575; VanHoozier v. Railroad, 70 Mo. 145; Market v. Davis, 46 Mo.App. 274; Brown v. Railroad, 12 N.Y. 486. (6) If Mr. Nathan Harrelson impliedly, or in express terms, consented to the erection of the dam, still that consent was verbal only, and amounted to nothing more than a revocable license. The license was personal to him and the company to which it was given. It was revoked by the death of Harrelson. Besides this, the license is of no avail to these defendants, or either of them, because not given to them or either of them. 3 Kent (13 Ed.) 452; DeHaro v. U.S. 5 Wall. 627; Wilmington Water Co. v. Evan, 166 Ill. 548; Wilson v. Railroad, 41 Minn. 56; Wash. on Easements, (3 Ed.), pp. 23, 24; 1 Wash. on Real Prop. (2 Ed.), p. 414; 2 Am. Lead. Cases (Hare-Wallace Notes) (5 Ed.), p. 575; Desloge v. Pearce, 38 Mo. 588; Pitzman v. Boyce, 111 Mo. 387; Shoemaker v. Fielder, 91 Wis. 389; Dunham v. Joyce, 129 Mo. 5. (7) Whilst there are some authorities to the general effect that a parol license, when executed, amounts to an easement and can not be revoked, we insist that the best considered cases in this country and in England hold that a right to overflow lands or to do successive acts on land is a hereditament, and can only be created by writing, and a parol consent to do such acts is no more than a license, and can be revoked at any time. We also insist that this court has at all times adhered to this better doctrine. Bigelow on Estoppel (4 Ed.), p. 638; 2 Am. Lead. Cases (Hare & Wall. notes) (5 Ed.), 553 and 575; Gould on Waters, sec. 322; Shoemaker v. Fielder, 91 Wis. 389; Clute v. Carr, 20 Wis. 559; Johnson v. Skillman, 29 Minn. 95; Railroad v. Railroad, 104 N.C. 658; Cobb v. Fisher, 121 Mass. 169; Batchelder v. Hibbard, 58 N.H. 269; Wiseman v. Locksinger, 84 N.Y. 31; Wilmington Water Co. v. Evans, 166 Ill. 548; Wilson v. Railroad, 41 Minn. 56; Jenson v. Hunter, 41 P. 14; Desloge v. Pearce, 38 Mo. 588; Pitzman v. Boyce, 111 Mo. 387; Cresdale v. Lanigan, 129 N.Y. 604. (8) The distinction sometimes attempted to be made between a license to do a thing on the land of the licensee and to do a thing on the land of the licensor, shadowy at best, can have no application to natural easements; for the right to flow the land of another is equally a hereditament, whether the dam stands on the dominant, or servient estate, and the right must be created by writing. 2 Am. Lead. Cases (Hare-Wallace) (5 Ed.), 584, 585; Frost v. Railroad, 23 Conn. 211.

Thomas R. Morrow and Horatio F. Simrall for respondent, Kansas City & Atlantic Railroad Company.

(1) The very ground upon which the mandatory injunction is sought is not only denied in the answer of the respondent, the Kansas City & Atlantic Railroad Company, but is denied by the plaintiff himself upon the witness stand. The petition asks for the abatement of the embankment because it cause the overflow of the plaintiff's land, and yet the plaintiff himself, in his testimony, declares that the backing up of the waters, and the consequent overflow, is due to the filling of the trestles by another party, without the consent or connivance of the Kansas City & Atlantic Company, on the right of way of another and entirely independent railroad; and the rest of the testimony substantiates that of the plaintiff. (2) The uncontradicted testimony of the witness, Winner, shows there was a specific arrangement between the Winner road and the elder Harrelson that the waters flowing toward the former's right of way, between the bluffs and the long trestle, should be emptied or drained through the said trestle. Nothing appears in the testimony to show whether this drainage was to be by means of a ditch on the right of way of the Winner road or by a ditch upon the lands of Harrelson. Of course, if the diversion of the alleged water course (Prather branch) was by a ditch lying wholly on the right of way of the Winner road, no license for such diversion from Harrelson was required, as it is well settled that an owner may divert a water course upon his own land, provided it is afterwards returned to its original course before it reaches the lower proprietor. Canfield v. Andrew, 54 Vt. 1; Webster v. Fleming, 2 Humph. 518; Garwood v. Railroad, 83 N.Y. 400. If the Winner road, relying upon the apparent abandonment of the old course by Harrelson, built a solid embankment across it, can they now be required to open it up at great additional expense, because Harrelson had a secret intention to retain his rights to the former flow? One can abandon any easement or right of servitude in a servient estate. Roanoke Investment Co. v. Railroad, 108 Mo. 66; Vogler v. Geiss, 51 Md. 411; Pope v. Devereaux, 5 Gray 409; Dyer v. Sanford, 9 Met. 395; Washburn on Eas. and Servitudes (4 Ed.), pp. 707 to 715; Angell on Watercourses (4 Ed.), secs. 247 to 251. (3) Assuming that this court takes the view that there was no abandonment of the former course of flow of Prather branch, but a parol license to build the "dam," we contend that this license is irrevocable under the circumstances of this case. The license has been executed, and the execution of it has involved the expenditure of a large amount of money. It is therefore to be regarded in equity as an executed agreement, and can not now be revoked. School District v. Lindsay, 47 Mo.App. 136; Baker v. Railroad, 57 Mo. 272; House v. Montgomery, 19 Mo.App. 176. On the ground of equitable estoppel equity will protect a parol license and not allow it to be revoked when the licensee has expended large sums of money or made valuable improvements upon the faith of it, because to do otherwise would work a fraud on the licensee. School District v. Lindsay, 47 Mo.App. 136; Gibson v. St. L. Agr. & Mech. Ass'n, 33 Mo.App. 176; House v. Montgomery, 19 Mo.App. 175; Baker v. Railroad, 57 Mo. 271; Fuhr v. Dean, 26 Mo. 121; Rerick v. Kern, 14 S. & R. 271; Olmstead v. Abbott, 61 Vt. 287; 4 C. E. Green (N. J.), 142, 153, 154; Veghte v. Water Power Co., 4 Green (N. J.) 153; Curtis v. Le Grande Co., 20 Or. 43; Nowlin v. Whipple, 120 Ind. 599; Morton Brewing Co. v. Morton, 47 N.J.Eq. 162; Saucer v. Keller, 129 Ind. 477; Pierce v. Clelland, 133 Pa. St. 197.

Spencer & Mosman for respondent, Hannibal & St. Joseph Railroad Company.

(1) The plaintiff can not maintain a bill in equity against these defendants jointly. Cooper's Eq. Pldg. 182; Marselis v. Morris Canal Co., 1 N.J.Eq. 31; Levering v Schnell, 78 Mo. 167. (2) The case at bar is brought by a single plaintiff against two defendants. There was no unity or community of interest between the defendants; there was no common object, purpose or end prompting the defendants to the work they are charged to have done, and plaintiff can not obtain relief on one and the same ground against both defendants. Wilkinson v. Goodin, 71 Mo.App. 394; Montserrat Co. v. Johnson Co. Coal Co., 141 Mo. 149; Boggess v. Boggess, 127 Mo. 325; Stalcup v. Garner, 26 Mo. 75; Marselis v. Morris Canal Co., 1 N.J.Eq. 31; County of Lapeer v. Hart, Harr. (Mich.) 157. (3) The bill does not state facts sufficient to authorize a suit in equity to be maintained jointly...

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