Hayes v. St. Louis & San Francisco Railroad Company
| Citation | 162 S.W. 266,177 Mo.App. 201 |
| Parties | JAMES L. HAYES, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Decision Date | 11 December 1913 |
| Court | Missouri Court of Appeals |
Appeal from Butler County Circuit Court.--Hon. J. C. Sheppard Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans and W. J. Orr for appellant.
The trial court erred in refusing to direct a verdict for the defendant at the close of all of the evidence because the undisputed testimony shows conclusively that plaintiff's action was and is barred by limitation. Powers v Railroad, 158 Mo. 87; Sutherland on Damages, pp. 403-407; Adams v. Railroad, 18 Minn. 265; Powers v. Council Bluffs, 45 Iowa 655; Fowle v. New Haven Co., 112 Mass. 334; Levee District v. Barton, 92 Ark. 406; Railroad v. McCutchin, 80 Ark. 235; Railroad v. Biggs, 52 Ark. 240; Railroad v. Morris, 35 Ark. 622; Railroad v. Anderson, 62 Ark. 360; Turner v. Overton, 86 Ark. 406; Gould on Waters, 416; 2 Farnham on Waters, 586; Prieb v. Ames, 104 Minn. 419; Railroad v. Twine, 23 Kan. 585; Railroad v. Maher, 91 Ill. 312.
Phillips, Lentz & Phillips for respondent.
(1) When the wrong done by a nuisance does not involve the entire destruction of the estate, or its beneficial use, but may be apportioned from time to time, separate actions must be brought to recover the damages so sustained, and a former suit will be no bar to a recovery in another action for damages suffered subsequent to the institution of the first suit. Van Hoozier v. Railroad, 70 Mo. 148; Dickson v. Railroad, 71 Mo. 579-80; Givins v. Van Studiford, 86 Mo. 159; Paddock v. Somes, 102 Mo. 237; Doyle v. Railroad, 113 Mo. 286; Charles v. Railroad, 124 Mo.App. 301; Ivie v. McMunigal, 66 Mo.App. 441; Powers v. Railroad, 71 Mo.App. 542. (2) Where the injuries sustained by reason of a nuisance consist in the destruction of crops from year to year, the plaintiff will not be limited to a single action, but may sue from time to time as often as the damage occurs. Dickson v. Railroad, 71 Mo.App. 579; Van Hoozier v. Railroad, 70 Mo. 148; Charles v. Railroad, 124 Mo.App. 301; Barnett v. Levee Dist., 125 Mo.App. 66. (3) The injury inflicted by the construction of the embankment did not go to the entire value of the estate, but was of occasional recurrence and varied in extent with the volume of water thrown upon the land. The injury is a continuous one, susceptible of periodical apportionment, and therefore, capable of being redressed by successive actions. Van Hoozier v. Railroad, 70 Mo. 148-9; Howard v. Railroad, 130 Mo. 656; Barnett v. Levee Dist., 125 Mo.App. 66; Charles v. Railroad, 124 Mo.App. 301.
The plaintiff owns a farm along the east side of St. Francis river in Stoddard county, Missouri. 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 watercourse about one hundred and twenty feet wide and about twenty 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 watercourse with a channel and well-defined banks; that during every rise of the St. Francis river amounting to as much as five or six feet a large volume of water passes out through the said slough or watercourse and the several prongs or branches thereof into the low lands to the east thereof for some miles where it again gathers into another slough or watercourse 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 watercourse; that across the two principal branches or prongs of the said slough or watercourse, 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 watercourse; 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 watercourse 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 one to three 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 $ 1000 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 lands to the extent of seventy 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 $ 1000. The third count is similar in all respects to the second count, being predicated on the facts stated in the first count and asks $ 1000 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 that 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 two or three 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 eighty acres and holding it there for a much longer time than before the railroad was built. In this manner plaintiff lost the seventy 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...
To continue reading
Request your trial