Harris v. St. Louis-San Francisco Ry. Co.

• Citation: 27 S.W.2d 1072,224 Mo.App. 455
• Parties: W. A. HARRIS, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT
• Decision Date: 20 May 1930
• Court: Missouri Court of Appeals

27 S.W.2d 1072

224 Mo.App. 455

W. A. HARRIS, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT

Court of Appeals of Missouri, Springfield

May 20, 1930

Appeal from Dunklin County Circuit Court.--Hon. W. S.C. Walker Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

E. T Miller and Ward & Reeves for appellant.

Orville Zimmerman for respondent.

BAILEY J. Cox, P. J., concurs. Smith, J., not sitting.

OPINION

BAILEY, J.

This is an action for damages for loss of crops alleged to have been caused by defendant's negligence in failing to maintain suitable openings through its roadbed and embankment, thereby causing rain and surface water to stand on plaintiff's land. Upon trial to a jury plaintiff obtained a favorable verdict and defendant has appealed from the judgment.

The petition sets forth the fact that part of plaintiff's land lies west of defendant's line of railroad running from Campbell to Holcomb, Missouri. The petition further contains the following allegation, "that during the crop year 1926 he cultivated six acres of said land in cotton and twenty acres in corn, and that said land yielded 1000 pounds of cotton per acre and forty bushels of corn per acre; that because of the failure of defendant to maintain suitable openings through its roadbed and right of way to connect with natural drains on the east of defendant's road, rain and surface water in January, 1927, was caused to back up and stand upon the land cultivated by plaintiff and to destroy said six acres of cotton and said twenty acres of corn, all yet ungathered." There is a further similar allegation as to crops planted in 1927.

No question is raised as to the pleadings in this case and we take it to be conceded that this petition is founded upon the provisions of section 9953, Revised Statutes 1919, relating to ditches and drains. That statute, in so far as material here, reads as follows: "It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this State, and of any corporation, company or person constructing any railroad in this State, within three months after the completion of the same through any county in this State, to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains or watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad."

Defendant's main contention, as shown by its assignment of errors, brief and argument, is that its demurrer to the evidence should have been sustained. This involves a consideration of the evidence which may be briefly stated without a consideration of the testimony of each particular witness. The evidence most favorable to plaintiff shows that plaintiff's land is split by defendant's line of railroad in Dunklin county. The railroad runs north and south and was built some thirty years ago and at that time most of the lands between Kennett, Missouri, and Campbell, including plaintiff's lands, were swamps and overflow lands. Defendant's railroad was built on slightly elevated ground separating the basins of the St. Francis River and Little River. In about the year 1912, there was constructed a small levee along the east side of the St. Francis River and since that time this levee has been maintained by the St. Francis River Levee District. The evidence also shows that drainage districts were formed at the time of the formation of the levee district and numerous ditches were constructed in the territory east of the St. Francis Levee and east of defendant's railroad tracks and across the river in Dunklin and Pemiscot counties. The evidence also shows that the St. Francis River Levee was constructed to a height of eight or eight and one-half feet but had a crown three feet in width and a forty-foot base, designed to confine the waters to the St. Francis River and keep from flooding the country. The drainage districts constructed east of the St. Francis River were also intended to drain the land and take care of the local rain waters. It also appears that plaintiff's land is located about three miles south of Gibson and about six and one-half miles east of the St. Francis River Levee. Defendant's railroad comes out at Gibson running southeast and runs through plaintiff's eighty acres of land. About sixty-five acres of the farm lies west of the railroad embankment. There are water-courses running through plaintiff's land known as Sand Slough, at the south corner, and Mud Slough which runs around the farm and around the ridge between the farm and Gibson and empties into Taylor Slough at a point east of Gibson.

Prior to the time the levees heretofore mentioned were built on the St. Francis River, these sloughs were more or less filled with water at all times and defendant maintained trestles or openings across these sloughs. Since the building of the levees, these sloughs exist as dry sloughs, although Taylor Slough, part of the way at least, has been supplanted by ditch number two, constructed by the Little River Drainage District. These various sloughs, it seems to be conceded, were natural drains for plaintiff's land and other adjoining lands. After the construction of the levee on the St. Francis River, as aforesaid, it seems that defendant undertook to close up the opening on the railroad embankment where the sloughs were and by the year 1926, had closed and filled in all the sloughs heretofore mentioned except a little opening in what is known as Sand Slough and about one-third of the trestle at the opening of Mud Slough.

Plaintiff testified that the closing of the last two openings in 1926, caused his trouble because the water could not get by; that the levee broke in 1927, and when it broke the water just kept rising and it flowed over the top of the railroad and finally washed out the railroad; that on the west dump the water was eighteen to twenty-seven inches higher than on the east side; that he was able to gather crops on the east side of the railroad because he gathered it first and before the water got over it, but was unable to gather corn on the west side of defendant's embankment, and after the flood there was not any crops to gather. Plaintiff further testified that just above his field the railroad dump is six and one-half feet high and just below five feet and seven inches high; that his field is on a ridge and the water got so high it ran over defendant's railroad track; that if the opening had been left and the railroad bed, the waters would have gone through because it had gone through prior to 1927 when breaks occurred on the St. Francis River in 1923. The evidence also shows that there was an unusual flood in January, 1927, and it seems to be conceded that it was of such magnitude as to be unprecedented.

The evidence on the part of plaintiff tends to show that all the lands on both sides of the railroad tracks of defendant's were over-flowed at the time plaintiff's first crops were destroyed, but plaintiff's position is that, conceding the flood was due to an unprecedented rainfall, yet but for the failure of defendant to maintain the openings, which had originally been in its railroad embankment, the waters would have been let through and not kept standing on the west side of the track and over plaintiff's land and crops and he could have gathered his crops before other rises came as he did on land on the east side of the track.

The flood in January, 1927, which broke the levee on the St Francis River was of such magnitude that several of plaintiff's witnesses testified it was the highest water ever seen by them in south-east Missouri. It also seems that the sloughs mentioned as having drained plaintiff's land prior to the building of the St. Francis River levee, still had well defined banks at the time of the floods in January, 1927, and also in December, 1927, when the second set of crops were destroyed on plaintiff's lands. The evidence also shows that the levee broke on the St. Francis River in the year 1923, flooding plaintiff's lands, but, according to plaintiff's evidence, it didn't ruin his crops because the sloughs were open and the water ran off. The flood waters, however, were not so high in 1923, as in 1927. In comparing the water of 1927, with that of 1923, plaintiff testified as follows: "I observed the conditions here immediately west of Kennett, and...