Lynch v. St. Louis, K. C. & C. Ry. Co.

• Citation: 180 Mo. App. 169,168 S.W. 224
• Decision Date: 18 May 1914
• Docket Number: No. 10896.,10896.
• Parties: LYNCH et al. v. ST. LOUIS, K. C. & C. RY. CO.
• Court: Court of Appeal of Missouri (US)

168 S.W. 224

180 Mo. App. 169

LYNCH et al. v. ST. LOUIS, K. C. & C. RY. CO.

No. 10896.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

1. WATERS AND WATER COURSES (§ 119) — SURFACE WATER — DIVERSION.

While one may protect himself against surface water, he cannot divert its natural escape by collecting it in a body and discharging it over his neighbor's land.

2. EMINENT DOMAIN (§ 243) — CONDEMNATION PROCEEDINGS — JUDGMENT — MATTERS CONCLUDED — MATTERS ACTUALLY LITIGATED.

A judgment for damages, in a railroad's proceeding to condemn plaintiff's land for a reservoir, tried after the railroad had appropriated the land and constructed the reservoir and a spillway, in which plaintiff and others testified as to damage therefrom to the whole tract north and south of the railroad and from surface water flowing through the spillway to land south of the railroad, and as to damages to the land from the situation of the reservoir and as incident to its establishment, was a bar to a subsequent action for damages from water thrown on part of the land by the construction of the reservoir and spillway, since the same matters were in fact litigated in the former proceeding.

3. EMINENT DOMAIN (§ 243) — CONDEMNATION PROCEEDINGS — JUDGMENT — MATTERS CONCLUDED — MATTERS WHICH MIGHT HAVE BEEN LITIGATED.

Such judgment, even if the damages on which the second action was based was not contested therein, was a bar to such action, since it was within the issues and might have been litigated.

4. JUDGMENT (§ 592) — CONCLUSIVENESS — ISSUES AND CAUSE OF ACTION.

Where a subsequent action is upon a different claim, a former judgment only bars those matters which were in issue or included in the issues in the former action, and does not bar another cause which might have been joined in the former action but was not.

Appeal from Circuit Court, Johnson County; A. A. Whitsett, Judge.

Action by Eliza Lynch and others against the St. Louis, Kansas City & Colorado Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Paul E. Walker, of Topeka, Kan., and J. W. Suddath & Son, of Warrensburg, for appellant. James A. Kemper, of Warrensburg, for respondents.

ELLISON, P. J.

Defendant is a railway corporation which built a line of railroad through and over plaintiff's lands lying in Johnson county. Near these lands there is a wide depression or basin and in building its road over this defendant found it necessary to construct a fill or dam extending into plaintiff's lands, reaching 30 feet in height at its greatest elevation. A natural hollow or ditch had received the surface waters from surrounding lands and carried them down to a natural outlet, known as Scaly Bark creek. But defendant's fill was built across this ditch and across the entire basin, without a culvert or other outlet; in consequence of which the waters flowing from rains were dammed into a lake extending back over the entire basin, in some places to a great depth and covering a large area of land, including a part of defendant's. Afterwards, defendant constructed a reservoir and also a spillway leading from the reservoir under its track at a point on defendant's land west of the west edge of this large body of water and dug a drain ditch on the north of the fill from the bank of the lake leading to the reservoir and spillway, whereby the water was discharged under the track, across the right of way and onto plaintiff's lands on the south in such concentrated volume and force as to wash ditches of great depth and width and practically to destroy the value of much of it. This action was brought to recover damages for such injury, and plaintiff had judgment in the trial court.

If there was no more in the case than what we have stated, there could be no doubt of defendant's liability; the law being that, while one may protect himself against surface water, he cannot so divert its natural escape by collecting it in a body and letting it out over his neighbors' lands. Rychlicki v. St. Louis, 98 Mo. 497, 11 S. W. 1001, 4 L. R. A. 594, 14 Am. St. Rep. 651; Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 10 L. R. A. 254; Grant v. Ry. Co., 149 Mo. App. 306, 130 S. W. 80.

But it was shown that after defendant had acquired a right of way over plaintiff's land it began another proceeding against plaintiff, wherein it sought to have, and did have, about three acres of his land adjoining its right of way condemned for a reservoir, and that it dug a ditch leading from the lake to and through this land to a point where it constructed the spillway under its tracks whereby the overflow water from the lake escaped south onto other parts of plaintiff's land as stated. In this proceeding plaintiff was allowed as damages the sum of $425, and defendant insists that that sum, under the issues in the case, covered every phase of the damages to his land; but that, even if it did not, it could and...