Hayes v. St. Louis & S. F. R. Co.

• Decision Date: 11 December 1913
• Citation: 162 S.W. 266,177 Mo. App. 201
• Court: Missouri Court of Appeals
• Parties: HAYES v. ST. LOUIS & S. F. R. CO.

162 S.W. 266

177 Mo. App. 201

HAYES v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

December 11, 1913.

Rehearing Denied January 6, 1914.

JUDGMENT (§ 606)—EMBANKMENTS—ABSENCE OF OPENINGS FOR WATER—DAMAGES—ACTION.

A railroad embankment, with openings insufficient to pass the water in times of high water, is, since passage of Rev. St. 1909, § 3150

(applicable as well to embankments constructed before passage of the act as those constructed thereafter), requiring openings through such an embankment sufficient to carry off the water, and permitting the landowner, on notice to and refusal of the railroad so to do, to construct such openings, at the company's expense, an abatable nuisance, so that damages caused thereby can be sued for by successive actions within the period of limitation after each injury occurs.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by James L. Hayes against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellant. Phillips, Lentz & Phillips, of Poplar Bluff, for respondent.

STURGIS, J.

The plaintiff owns a farm along the east side of St. Francis river in Stoddard county, Mo. He acquired this land in 1909 and 1910. The defendant railroad was constructed across this land by another railroad company in 1902, and was purchased by the defendant company in 1907, and has been operated by it since that time. This suit, commenced in 1911, is for damages to plaintiff's farm and crops alleged to have been caused by the railroad embankment causing the water to back up and overflow such land. The plaintiff recovered, and defendant appeals.

The plaintiff's petition is in three counts, although he recovered only on the third. The first count states that just above the northern boundary of plaintiff's said lands a large slough or water course, about 120 feet wide, and about 20 feet deep, runs off to the southeast from said point through the lands of plaintiff, and divides into five prongs or branches, forming a natural water course with a channel and well-defined banks; that, during every rise of the St. Francis river amounting to as much as 5 or 6 feet, a large volume of water passes out through the said slough or water course and the several prongs or branches thereof into the lowlands to the east thereof for some miles, where it again gathers into another slough or water course, and the said waters again flow back into the said St. Francis river; that the defendant, in the construction of its said railroad through plaintiff's said lands, constructed and ever since maintained a solid embankment several feet high over and across three of the prongs or branches of the said slough or water course; that, across the two principal branches or prongs of the said slough or water course, the defendant constructed and has ever since maintained small openings in the embankment of its said road, but which openings are entirely insufficient to carry the volume of water which passes from the said river through the said slough or water course, so that at every considerable rise of the said St. Francis river the said embankment, so constructed and maintained by the defendant, with the insufficient openings therein, caused the said waters flowing through the said slough or water course to be dammed or backed up on the plaintiff's lands to such an extent that the waters on the upper side, next to the river, are from 1 to 3 feet higher than on the lower side of said embankment; that thereby large portions of plaintiff's lands are caused to overflow which had never been overflowed before the construction of said railroad embankment, thereby preventing the plaintiff from making use of his lands so caused to be overflowed as aforesaid during all the time of high water in the said St. Francis river; that, by the construction and maintaining of said embankment, with its insufficient openings, defendant has at all times since its construction caused and is now causing a present and continuing nuisance, damage, and injury to plaintiff's said lands; that, by reason of the overflow of his lands caused by the construction and maintaining of said road embankment, with its insufficient openings as aforesaid, he has been deprived of the use of the said lands during a large portion of the time for the last six years—for all which he asks $1,000 damages.

The second count is based on the facts set forth in the first count, and alleges that in the manner and because of such facts and the embankment across the said slough his land, to the extent of 70 acres, on which he had a crop of growing corn, was overflowed during "a very considerable rise" of said river in July, 1905; the water being thrown and held back by said embankment on the said land, destroying his crops for that year to the value of $1,000.

The third count is similar in all respects to the second count, being predicated on the facts stated in the first count, and asks $1,000 damages for loss of his corn crop on the same land for the year 1910, due to an overflow from the same cause, to wit, "a considerable rise" in the river in July in that year, and the water not being allowed to pass off through this slough by reason of the solid embankment, with only small openings.

The defendant's answer alleges that the roadbed of defendant was constructed just as it now is in 1902 by the St. Louis, Memphis & Southeastern Railroad Company, from which company the defendant purchased said railroad in 1904 in the condition it now is, and has operated the same in that condition ever since; that plaintiff's cause of action, if any he has, accrued against the said St. Louis, Memphis & Southeastern Railroad Company as the builder of said roadbed, and not against this defendant. The defendant also pleads the five and ten-year statute of limitations.

The case was submitted to the court on the evidence of plaintiff alone and the admissions made by the parties, so that the facts are admitted practically as stated in the petition and answer.

The plaintiff testified that at times of low water in the river the slough in question served as a means of draining surplus water into the river, but that whenever the river became "two-thirds bank full" it commenced flowing the other way, and in high water about one-fourth the volume of the river escaped through this slough, or rather did so before the railroad built the embankment across it. The embankment across the slough is some distance away from the river. Plaintiff did not own this land at the time the railroad constructed the embankment, but was familiar with it, and said that he noticed that as soon as the embankment was built the openings were too small, and that the water overflowed more of the land than before; that the river gets out of its banks every year; that this high water and overflow occurs every year, but not always when there was a growing crop; 1905 was one year when the high water came during the crop season, and 1910 was another, but this was not the highest water. He described the conditions resulting from high water as being that the water would be 2 or 3 feet higher on the side of the railroad embankment next to the river than on the other side, thus backing the water over his land to the extent of about 80 acres, and holding it there for a much longer time than before the railroad was built. In this manner plaintiff lost the 70 acres of corn in 1910, for which this suit is prosecuted, and for which he recovered.

The sole question submitted for determination is whether or not the cause of action stated in the petition is barred by limitation. That question is determinable by the further question of whether the injuries complained of in the third count belong to the class of permanent injuries to land which accrue once for all to the then landowner as a single cause of action by the erection of a structure permanent in its nature, and which must be redressed, if at all, by a single action brought within the limitation period, or to that class of injuries, temporary and continuing in their nature, where each successive injury is severable, and constitutes a distinct cause of action, accruing at the time of the particular injury, and which may be sued for within the statutory period after such accrual. The courts and law-writers have generally recognized this distinction. It is stated thus in 29 Cyc. 1254: "Where a nuisance is of such a permanent character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery; but where the nuisance is of a continuing (abatable) nature, each continuance gives rise to a new cause of action, and successive actions may be maintained for the damages accruing from time to time." And, again, at page 1260: "Statutes limiting the time within which actions may be brought apply to actions for damages for nuisances, and where the nuisance is of a permanent character the period runs from the time when the injury was done or the structure complained of erected; but where the nuisance is a continuing one an action for injuries from the continuance may be brought after the lapse of more than the statutory period since the creation of the nuisance, although in such case the recovery is limited to damages for the statutory period preceding the commencement of the action."

It is also apparent that, if the injuries caused to this land by the erection of this railroad embankment belong to the first class of permanent injuries, producing a single cause of action, then no cause of action accrued to the plaintiff, as he was not then the owner of the land, and none accrued against defendant, as it did not erect the nuisance or own the same until long afterward. It is res inter alios acta.

The difficulty here, as in most cases, is in determining to which class of...