Hosher v. Kansas City, St. Joseph & Council Bluffs R.R. Co.
| Decision Date | 31 May 1875 |
| Citation | 60 Mo. 329 |
| Parties | JOHN HOSHER, Appellant, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court.
William Heren, for Appellant.
I. By the instructions given for respondent, the court says that if a railroad cuts its ditches and makes its embankments with reasonable skill, it may collect surface water for a mile or more, direct it from its usual course and flowage, open a water gap or sluice, and overflow a man's land and ruin his crops, and not be liable, because the water, with which he does it, is surface water, collected in ditches skillfully made for that purpose. Such cannot be the law. .)
Willard P. Hall, for Respondent, cited Jones vs. Hannovan, 55 Mo., 465; McCormick vs. K. C., St. Jo. & C. B. R. R. Co., 57 Mo., 433; Johnson vs. Lewis, 13 Conn., 306; Pillsbury vs. Moore, 44 Mo., 154; Plumer vs. Harper, 3 N. H., 88; Ang. Wat., § 403; Douglass vs. Stephens, 18 Mo., 362; Waters vs. Brown, 44 Mo., 303; 19 U. S. Digest 506, § 20.
The petition in this case stated that the defendant was the successor of the Missouri Valley Railroad, and that the latter company wrongfully entered upon the lands of the plaintiff, and built and constructed its road bed, and did the same in a negligent unskilful and improper manner; that it threw up embankments and failed to open proper and sufficient culverts and openings, at proper places, whereby plaintiff's land was overflowed to his damage, etc.
The answer of the defendant denied all the material allegations in the petition, and also set up a written and verbal license from the plaintiff, to enter upon the land and construct the road.
Evidence was introduced tending to prove the allegations in the petition, and also tending to establish the facts set up in the answer, and that the works and embankment of the road were a benefit to the plaintiff instead of an injury.
The cause was tried before the court with a jury, and there was a verdict and judgment for the defendant.
For error, the appellant relies mainly, in this court, on the refusal to give his fourth and fifth instructions, and the giving of the sixth instruction by the Circuit Court of its own motion.
The fourth instruction refused merely declared, that if defendant's road-bed was constructed in an unskilful, negligent and improper manner, and that in consequence thereof plaintiff's land was overflowed, then, he was entitled to a verdict for damages.
The court had just given the three preceding instructions asked for by the plaintiff, and they in substance told the jury that if the company in the building of its road, by throwing up embankments or otherwise, diverted a stream from its natural channel, or turned it so that it overflowed plaintiff's land, then defendant was liable for damages.
And the further proposition was asserted, that it was not necessary that the stream or branch should be a living one, or one constantly running with water, but it was sufficient if the water ran in it a part of the year, and was made up from the running of surface water.
The jury from their verdict found that there was no turning or diversion of a stream of water, or changing the natural flow, after it had reached an accustomed bed. This was the allegation in the petition, and its existence was negatived by the verdict, and so there could have been no question of negligence on the subject.
The fifth instruction refused was predicated on a different hypothesis. It asserted that if the company built its road on plaintiff's land without procuring the right of way, or having the right of way condemned under the provisions of the statute, then the defendant was liable to the plaintiff for all damages caused by the overflowing of his land, in...
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