Jones v. Chicago, B. & Q. R. Co.

• Citation: 100 S.W.2d 617
• Decision Date: 05 January 1937
• Docket Number: No. 23481.,23481.
• Court: Court of Appeal of Missouri (US)
• Parties: JONES v. CHICAGO, B. & Q. R. CO.

100 S.W.2d 617

JONES v. CHICAGO, B. & Q. R. CO.

No. 23481.

St. Louis Court of Appeals. Missouri.

January 5, 1937.

Rehearing Denied January 29, 1937.

Appeal from Circuit Court, Scotland County; Walter A. Higbee, Judge.

"Not to be published in State Reports."

Suit by J. W. Jones against the Chicago, Burlington & Quincy Railroad Company. From an adverse judgment, the defendant appeals.

Reversed.

H. J. Nelson, of St. Joseph, Jayne & Jayne, of Memphis, E. W. McManus, of Keokuk, Iowa, Hiller & Hiller, of Kahoka, J. C Pryor, of Burlington, Iowa, J. A. Lydick, of St. Joseph, J. C. James, of Kansas City, and Sullivan, Reeder & Finley, of St. Louis, for appellant.

B. F. Jones, of Keokuk, Iowa, Rendlen, White & Rendlen, of Hannibal, and Luther & Luther, of Memphis, for respondent.

HOSTETTER, Presiding Judge.

This suit was instituted in the circuit court of Clark county and subsequently removed to the circuit court of Scotland county by a change of venue, where it was tried to a jury; the trial beginning on the 21st day of May, 1934, and concluding on the 14th day of June, 1934, resulting in a verdict by ten jurors in favor of the plaintiff for $540 on the first count, $428 on the second count, and $1703 on the third count. After an ineffective motion for a new trial the defendant brings the cause by appeal to this court for review.

All three of the counts are based on damages alleged to have resulted from overflow water on growing crops in certain sections of bottom land in township 64 north, range 6 west, in Clark county. The first count seeks a recovery for damage to growing corn in section 22, on June 6, 1931; the second count seeks a recovery for damage to standing corn in section 10, on November 15 and 16, 1928; and the third count seeks a recovery for damages to growing corn, wheat, and oats in sections 10, 11, 14, 15, and 16 on June 29 and 30, 1933.

Plaintiff was a renter, farming on the basis of a share of the crops, and the land on which the alleged damage occurred is located within the boundaries of the Mississippi and Fox River Drainage District No. 1, near the northeast corner of the State. This drainage district was organized in 1916, but has never functioned as a drainage district, except that a plan of reclamation was adopted but no improvements were ever made thereafter and it exists only as a drainage district on paper.

Roughly speaking, the boundaries of this paper district are the Des Moines and Mississippi Levee District on the north, what is now known as United States Highway No. 61 on the west, the Gregory Levee District on the south, and the track and right of way of the Chicago, Burlington & Quincy Railroad Company, which was included in the district, on the east.

The northeast corner of the district is just southeast of the town or village of Alexandria, situated on the Mississippi river in Clark county, Mo., and the southeast corner of the district is a short distance north of the town of Gregory, Mo. The distance on defendant's railroad between Alexandria and Gregory is six miles. The railroad track between the two stations is within a short distance of and parallel with the Mississippi river.

The area of this said paper district is approximately 20 square miles and comprises about 13,000 acres, all of which is on bottom land.

Fox river, the largest stream entering the district, rises in Appanoose county, Iowa, and enters the district in the northwest corner at about the point where it is crossed by United States Highway No. 61. It flows in a general easterly direction across the district to a point well toward the eastern part of the district, and thence turns somewhat abruptly in a general south and southeast direction, and empties into the Mississippi river under the railroad bridge north of Gregory. It is about 60 miles in length and drains a long narrow watershed.

Sugar creek rises south of Kahoka in Clark county and enters said drainage district south of Fox river and flows in a general easterly direction across the drainage district through sections 7, 18, 17, 16, 15, 14, and 13 in range 6 west, and into section 18, range 5 west, where it empties into Fox river.

Honey creek enters the district near its southwest corner and flows northeastwardly through sections 32, 33, 27, and 23, where it joins Sugar creek about the center of the south boundary line of section 14, and from this junction point the waters of both streams flow eastward as Sugar creek and empty into Fox river at a point around six miles north or upstream from where Fox river empties into the Mississippi river.

Hemp slough enters from the north in the eastern part of the district and flows southeast to a connection with Fox river. This slough drains some of the water from the Des Moines and Mississippi Levee District on the north, because said district maintains a pumping plant which pumps some of the water from it into Hemp slough.

In the northeast corner of the Mississippi and Fox River Drainage District, extending from the railroad track in a southeasterly direction and connecting with Hemp slough, is a depression referred to in the testimony as Fox slough. There are a number of other sloughs and swales between the railroad track and Fox river.

The total drainage area of Fox river, including all its tributaries above defendant's bridge north of Gregory, is 502 square miles. The elevation of the land where plaintiff's crops were located varied from 494 to 495 feet above sea level in section 22 to 503 and 504 feet in section 16, thus ranging approximately from 6 to 11 feet higher than the land at the mouth of Fox river at and in the vicinity of the so-called Gregory Bridge under which Fox river flows.

The Chicago, Burlington & Quincy Railroad was originally constructed about the year 1872. The western bank of the Mississippi river from Alexandria to the Gregory Bridge varies in distance from the railroad from about a quarter of a mile at the farthest to a few feet where the Gregory bridge is located and under which Fox river empties into the Mississippi. The land between the railroad and the Mississippi river is, as is usual, some higher than it is farther west. The distance from the Gregory Bridge upstream of Fox river to plaintiff's crop lands varies from 8 to 12 miles.

A correct description of the railroad bridge above Gregory is as follows:

Length 147 feet clear span.

Area under steel 4,266 square feet.

Elevation ground 493.

Elevation channel, 462.

Elevation low steel 494.1.

The following map will aid in understanding the general topography of the Mississippi and Fox River Drainage District in which plaintiff's crop lands are located:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Farmers have built levees on either side of Fox river from near where it enters the district down eastwardly to and past where all of plaintiff's crop lands are located. There is testimony that the building and maintenance of these private levees by farmers, which are constructed in a haphazard and irregular way, tend to obstruct the channel and slow up the flow of Fox river and impede its waters as it flows naturally towards the east.

The Gregory Levee District, lying just south of the paper district, has its levee along the south boundary line of the said paper district, and that levee, of course, has the tendency to keep the water that accumulates north of it from flowing south or southeasterly until it reaches the Mississippi river. The narrowest point between the levees north of Fox river and south of Fox river as it flows eastwardly is about 500 feet.

Plaintiff charges defendant with the following acts of negligence:

1. In having raised its track and roadbed through the district, or between Alexandria and Gregory.

2. Filling and closing an outlet for Fox river under its track just south of Alexandria and diverting the waters of Fox river, Sugar creek, and Honey creek in a south and southeasterly direction to where Fox river now enters the Mississippi river.

3. Closing two other openings under its track south of the opening near Alexandria, which it is alleged were also outlets for the water of Fox river.

4. Reducing the size of its bridge over Fox river near Gregory from 311 feet to 147 feet.

Plaintiff alleges that as a result of all such negligent acts his crops were damaged as alleged.

The petition, while not mentioning section 4765, R.S.Mo.1929 (Mo.St.Ann. § 4765, p. 2158), was so worded as in effect to charge defendant as being a violator of the provisions of said section, which makes it the duty of a railroad company to cause to be constructed and maintained suitable openings across and through its right of way and roadbed so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the drainage of such waters has been obstructed or rendered necessary by the construction of the railroad.

Defendant's answer consisted of a general denial, statute of limitations, and that the damage, if any, during the year 1933 resulted from an act of God.

There was some testimony adduced by plaintiff that when the waters were very high at the embankment of the railroad there was a backward or westward movement of the water, but there is no testimony that such water thus moving backwards submerged any of the land on which plaintiff's crops were located.

The evidence in the case consisted of the testimony of 129 witnesses and approximately 300 exhibits consisting of maps, plats, photographs, etc.

Many of the witnesses testifying on behalf of the plaintiff admitted that they had similar suits pending against the defendant railroad company. There were many facts either admitted or established by uncontradicted evidence which may be summarized as follows:

1. That Fox river from Highway No. 61 to a point where it turns south is "crooked and kinky" with many sharp turns. From Highway No. 61 its course is first southeast, then...