Heisserer v. Missouri Pac. R. Co.

• Decision Date: 07 April 1927
• Docket Number: No. 4003.,4003.
• Citation: 294 S.W. 132
• Parties: HEISSERER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

294 S.W. 132

HEISSERER v. MISSOURI PAC. R. CO.

No. 4003.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Rehearing Denied May 16, 1927.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by Frank L. Heisserer against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Stephen Barton, of Benton, for respondent.

COX, P. J.

Action for damages to crops on account of the alleged failure of defendant to maintain ditches and drains along its embankment and openings therein to permit passage of surface water as required by section 9953, Stat. 1919. The petition was in six counts. The first five counts were for loss of crops in 1920, 1921, 1922, 1923, and 1924. The sixth count was based on permanent damage to the land. The third count, based on loss of crop in 1922, was abandoned at the trial. The question of permanent damage under the sixth count was not submitted to the jury and is therefore also out of the case. The jury returned a verdict for plaintiff on counts 1, 2, 4, and 5, and assessed his damages at $150 on each count. Defendant appealed.

Error is alleged in the refusal of the court to permit defendant to show that a certain ditch mentioned in plaintiff's evidence was an artificial ditch. The defendant is in error on this contention. The court did not refuse to allow proof on that question, but only refused to allow a witness, who had no knowledge relative to the fact, to express an opinion on the question. There was nothing to indicate that the witness was an expert or that there was any occasion for the introduction of expert testimony. The court did not err in that regard.

The railroad track of defendant at the place in controversy runs north and south, and plaintiff's land abuts it on the east. The general slope of plaintiff's land is to the west and its lowest point is at the northwest corner. There is a large trestle and opening under defendant's track near the northwest corner of plaintiff's land and some three or four similar openings further south. In 1920 and 1921, when it is alleged in counts 1 and 2 of plaintiff's petition that the crops were destroyed, plaintiff's evidence tends to show that there had previously been a ditch along the embankment of defendant on the east side next to plaintiff's land which carried the water to one of these trestles, and it passed through under the track at that trestle and from there was carried away through a private ditch dug and maintained by Mr. Schott, who owned the land on the west side opposite the trestle where the water from plaintiff's land passed under the track of defendant. In 1920 and 1921 the ditch on the east side of the embankment and the space under the track at the trestle above mentioned had become so filled up with silt and trash that the water did not pass through to the Schott ditch, but was retained on the land of plaintiff, and caused the damage of which he complains.

As to the damage to crops in 1920 and 1921, the liability of defendant rests on the question whether it was required to maintain ditches and openings to connect with the ditch maintained by a private party for his own purpose. The statute under which this action is brought (section 9953, Stat. 1919) provides that it shall be the duty of a railroad company—

" * * * 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 water courses, 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 roadbed.

It is not the absolute duty of the railroad company, under all circumstances, to provide a passageway through its embankment for surface water. That duty only rests upon it when there is a ditch, drain, or water course on the other side through which the water can be carried away. If there be no ditch, drain, or water course on the other side with which to connect, then the duty to maintain ditches and openings for the purpose of permitting the surface water to pass through under its track does not attach.

This much is conceded by respondent in this case but his contention is, and his evidence shows, that connection could have been made with the private ditch of Mr. Schott. The evidence also shows that while the ditch along the right of way and the opening at the trestle were kept open and unobstructed, the water from plaintiff's land was carried into the private ditch of Mr. Schott and his land protected. So, as to the years 1920 and 1921, his case rests on the alleged duty of defendant to keep a lateral ditch and the opening at the trestle open so that the connection had previously been maintained does not effect the question of defendant's liability now. If it were not required to make that connection in the first instance, it cannot afterward be held liable for allowing the ditch and the opening under the trestle to fill up and destroy that connection. While it is the duty of a railroad to furnish an outlet to connect with an artificial ditch that is permanent in character and dug and maintained for the benefit of the public, it is not bound to furnish an outlet to connect with a private ditch dug and maintained for the private use of an individual. The reason is that a private ditch lacks the element of permanency and its maintenance depends up on the will of its owner and may therefore be closed at any time, and no other landowner has any right, without his permission, to connect therewith. Ranney v. St. Louis & S. F. R. Co., 137 Mo. App. 537, 119 S. W. 484.

There is no evidence in this case that defendant could have made a drainage connection with any ditch or drain on the west of its track except the private ditch of Mr. Schott, which it was not required to do. Defendant demurred to the evidence as to each count, and its demurrer to the evidence tinder puny— counts 1 and 2 for damages to crops in 1920 and 1921 should have been sustained.

Before the...