Johnson v. Gray's Point Terminal Railway Company

• Decision Date: 07 March 1905
• Citation: 85 S.W. 941,111 Mo.App. 378
• Parties: JOHNSON, Respondent, v. GRAY'S POINT TERMINAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

85 S.W. 941

111 Mo.App. 378

JOHNSON, Respondent, v. GRAY'S POINT TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 7, 1905

Appeal from Cape Girardeau Court of Common Pleas.--Hon. John A Snider, Judge.

REVERSED.

Judgment reversed.

S. H West and W. H. Miller for appellant.

Plaintiff's instruction 3, in addition to its many other faults, is possessed of one vital defect, in that it is upon an entirely different theory from that embraced in the petition. The petition charged the defendant with negligently obstructing (by damming up) the channel of a natural watercourse. The instruction authorizes a recovery for obstructing the flow of surface water. It is fundamental that a party must recover if at all, upon the theory of his petition and none other. Pryor v. Railroad, 85 Mo.App. 367; DeDonato v. Morrison, 160 Mo. 581, 61 S.W. 641; Wolfe v. Sup. Lodge, 160 Mo. 675, 61 S.W. 647; Holwerson v. Railroad, 157 Mo. 216, 57 S.W. 770; Hutchinson v. Realty Co., 88 Mo.App. 614; Chitty v. Railroad, 148 Mo. 64, 49 S.W. 868.

Giboney Houck and John A. Hope for respondent.

(1) When surface water is collected or drained into a natural depression, slough or swale, which runs into another stream, such natural depression, slough or swale is treated as a watercourse, and the water flowing therein is governed by the rules relating to watercourses and not by the principles applicable to mere surface water, and while over-flow water of a river is as a general rule treated as surface water, yet when such overflow water reaches and runs through a natural depression, such as Big Lake was shown to be, such overflow water is no longer regarded as surface water but is governed by the rules relating to natural watercourses. Jones v. Hanovan, 55 Mo. 46; Lambert v. Alcorn, (114 Ill. 313) 21 L.R.A. 611; Peck v. Harrington, 109 Ill. 611. (2) But it makes no difference whether Big Lake was a natural watercourse or not, because if the water flowing through it and which was obstructed by defendant's railroad is regarded as mere surface water, defendant had constructed its road negligently and without due care. It did not exercise reasonable care and prudence to avoid injuring plaintiff as an adjacent landowner, and it is liable for the damages he sustained notwithstanding the water obstructed may be treated as surface water. Horner v. Railroad, 60 Mo. 330; Benson v. Railroad, 78 Mo. 504; Goettenetroetter v. Kappleman, 83 Mo.App. 290; Willitts v. Railroad, 21 L.R.A. 608; Gray v. Williams, 21 L.R.A. 593; Rowe v. Railroad, 41 Minn. 384; Watermann v. Railroad, 30 Vt. 610; Hatch v. Railroad, 25 Vt. 49.

OPINION

GOODE, J.

The purpose of this action is to recover damages for a loss caused by the flooding of a tract of land consisting of fifteen acres which the plaintiff was in possession of at the time of the inundation as lessee. The loss to plaintiff consisted of the destruction of growing crops of corn, potatoes and other vegetables, the drowning of poultry and live stock, injury to farming implements and household goods, and the destruction of corn and other grain that had been gathered and stored. The flooding of the land occurred in June, 1903, and was due to a great rise in the Mississippi river and the consequent overflow of the surrounding country. Running for miles through Cape Girardeau county is an extensive depression known as Big Swamp. The depression begins just south of the city of Cape Girardeau and extends southwardly for a distance not to be definitely ascertained from the evidence, but we think twelve or fourteen miles. Over most of its surface the depression is heavily timbered. Extending through the swamp is a body of water known as Big Lake, Running Lake or Cox's Lake; it is designated by all those names. It is contended by appellant that this body of water is a stream--a natural watercourse constituting the drainage channel for several creeks which run into it, surface water running down from the highlands of Cape Girardeau and Scott counties, and water from the Mississippi river when that stream rises high enough to overflow its banks. Between Big Lake and the river a levee known as Rock Levee has been built, and the waters of the Mississippi must rise above it before they can overflow into the swamp. Such overflows of the Mississippi happen infrequently. The last, prior to 1903, was in 1892. The defendant company is charged with having caused the submergence of plaintiff's land and the ruin of his crops in June, 1903, by an embankment built across Big Lake for its railway track, which embankment dammed up the so-called lake as a natural waterway and so obstructed its flow that, at the time in question, water which otherwise would have flowed harmlessly southward, backed north over plaintiff's land, inflicting the loss above stated. The petition, after alleging the occupation of the land by plaintiff as tenant, the incorporation of the defendant company, and that it owns and operates a railroad extending from Delta in Cape Girardeau county to Gray's Point on the Mississippi river in Scott county, proceeds to aver that Big Lake is a natural watercourse and that the injury complained of was due to damming its water with the defendant's embankment so that, instead of flowing through said natural watercourse, as it had theretofore from time immemorial, it overflowed and flooded plaintiff's land.

The general course of Big Lake is southwest and the defendant's railroad crosses the lake in an east and west line. Where it crosses, the company constructed an open trestle seven hundred and three feet long and more than four feet high, which is said to afford an ample outlet for the entire volume of water ever carried by Big Lake. The answer states that the defendant constructed its road in a careful manner; made no other embankments and fills than were needed that the openings were sufficient to let all water pass except in times of excessive and unusual floods; that it had not constructed or maintained its road so as to dam or obstruct a water course, and that in any event the loss to plaintiff was due proximately, to an excessive and unprecedented inundation of the Mississippi river. The allegations of the answer were put in issue by a general denial. The evidence tends to show that Big Lake is a natural watercourse, having in most places, but not everywhere, well defined banks and a channel; that it carries off the waters of several small tributary streams, as well as surface water flowing from highlands in its vicinity. Water from the Mississippi river in times of floods high enough to rise above Rock Levee, would run into and overspread the depression known as Big Swamp. Big Lake occasionally, in dry seasons, ceases to run and contains only pools of water scattered along its course. It empties into Hubble creek, a natural watercourse. There is conflict in the testimony as to the width of the channel. Witnesses testified the channel ranged from thirty to one hundred or one hundred and fifty feet in width, and others that it was from a mile to three miles in width. These discrepancies have occurred from some witnesses testifying about the stream in its ordinary stage of water, and others when the entire valley or depression was flooded. The question is material. If an open trestle more than seven hundred feet long crosses the lake, the defendant's railway constitutes no obstruction to the stream if its width is less than the length of the trestle. But if, in fact, the stream is wider than the trestle where the latter is...