McCormick v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 August 1874
• Citation: 57 Mo. 433
• Parties: MATTHEW MCCORMICK, Plaintiff in Error, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

57 Mo. 433

MATTHEW MCCORMICK, Plaintiff in Error,

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

August Term, 1874.

Error to Buchanan Circuit Court.

John A. Ryan, for Plaintiff in Error: cited in argument, Waffle vs. N. Y. C. R. R., 58 Barb., 422; Goodale vs. Tuttle, 29 N. Y., 459; Martin vs. Riddle, 26 Penn. St., 415; I. C. B. R. Co. vs. Grabell, 50 Ill., 242; Driver vs. Western Union R. R. Co., 32 Wis., 569; Sess. Acts, 1855-6, p. 406; Local Laws, 1855, p. 234; Brown vs. Cayuga & Susquehanna R. R. Co., Kern., 491; Hooker vs. New Haven and New Hamilton Canal, 14 Conn., 146; Baughton vs. Carter, 18 Johns., 404; Bradley vs. N. Y. & N. H. R. R. Co., 21 Conn., 293.

B. F. Loan, for Plaintiff in Error.

I. Damages assessed for the right of way do not include compensation for injuries such as are stated in the petition (Wagn. Stat., p. 326, § 1, Art. V., Corp. Law.)

II. Plaintiff is entitled to recover if he has been injured by the wrongful act of the respondent, although it may not have been committed maliciously.

Stringfellow, and Hall & Oliver, for Defendant in Error: cited in argument, Imler vs. City of Springfield, 55 Mo., 119; Jones vs. Hannovan, 55 Mo., 462; 2 Allen, 357; 1 Allen, 591; 23 How., 514; 6 Barr., 383; 13 Gray, 194; Clark vs. Han. & St. Jo. R. R., 36 Mo., 223; 13 Allen, 293; Ang. Wat. Cours., §§ 138, 139 and 108a. --b.; 8 Gray, 409; Horner vs. Dartmouth, 13 Allen, 291-293; 1 Den. 597.

VORIES, Judge, delivered the opinion of the court.

This action was brought by the plaintiff to recover damages of the defendant, which it was charged were caused by the negligent turning of a large body of water, by the defendant, upon and over the lands of the plaintiff.

The petition, after stating that the defendant was a corporation owning and operating a railroad in Buchanan County, and that the plaintiff was the owner of a tract of land adjoining to and on the west side of said railroad, proceeded to state, that on the east side of said railroad and opposite plaintiff's land, a large quantity of surface water was accustomed to stand and remain in a large pond, covering a surface of several acres, and that, during heavy rains, the surface water would flow in great quantities from the hills east of said railroad and pond with great force, down on the wet land east of said road and opposite plaintiff's land as above mentioned; and that, “during such heavy rains, a certain branch or creek, known as Contrary Creek,” which flowed in a westwardly direction across said road, would overflow its banks, east of said railroad, and a great portion of the surplus water of said creek flowed over said low and wet land in manner so that the said surface water and said surplus water from said creek formed a large body of water east of said railroad, where the same joins plaintiff's said land.

Plaintiff further states “that on or about the month of June, A. D., 1871, defendant negligently and maliciously cut an artificial channel from said pond or body of water through the embankment of its said railroad bed, and drained all of said body of water on to plaintiff's said land, so that the surface water which had flowed from the said hills and the surrounding lands, which was caused by a very heavy rain storm, and the surplus water which overflowed with great force from said creek, flowed with great force and violence on plaintiff's land, rendering it mostly valueless, and damaging it to the amount of three hundred dollars, and also destroyed all the corn which was growing on said land to the amount of eight acres.” The petition also charged that his well and spring were injured and his house damaged, etc., etc., and prayed judgment for $1,200.

The defendant in its answer denies the allegations of the petition and then sets up as a defense to the action, that in the construction of the railroad, the right of way to the road bed of said railroad had been condemned under the statute in such case made and provided, setting forth all of the facts required in order to a legal condemnation of said road bed, and that the damages assessed for the appropriation of said land to the use of the road had been paid; that the damages so assessed and paid included whatever damages could or might be done to plaintiff's land by the building and construction of said railroad, and all embankments thereon, and all drains and channels under said embankment necessary to the proper construction and maintenance of said railroad; and that the channel mentioned in said petition was necessary to the use and maintenance of said road.

To the last defense set up in the answer the plaintiff replied denying the same. The bill of exceptions does not set out the evidence in the case, but simply states that the plaintiff introduced evidence tending to prove the material allegations in his petition, and that the defendant offered evidence tending to prove the allegations set up in the second defense to the petition. The evidence offered by the defendant was objected to by the plaintiff as being immaterial and going to prove defense to the plaintiff's action. This objection was overruled and the plaintiff excepted.

At the close of the evidence, the plaintiff asked the court to give the jury several instructions which were all refused by the court, one of which was as follows: “The court instructs the jury that if they believe from the evidence that the defendant collected a large body of surface water on the east side of its railroad by the embankment of said road as charged in plaintiff's petition, and that sometime in June of 1871, or about that time, charged in plaintiff's petition, said defendant, by an artificial channel through said embankment, negligently and carelessly drained said body of water on to plaintiff's land, then plaintiff is entitled to recover what damages he has suffered as is shown by the evidence.”

The other instructions asked by the plaintiff need not be noticed, as part of them are admitted to be improper and the others contain the converse of those asked for and given on the part of the defendant, which are as follows:

1st. “If the jury believe from the evidence, that the culvert made by the defendant in its road bed was not made maliciously and for the sole purpose of maliciously injuring plaintiff, then defendant is not liable for any injury caused by water passing through such culvert into plaintiff's land.”

2d. “Defendant had the right to protect its road bed against overflow and surface water from rains, and for that purpose to make all such banks or culverts as it deemed proper; and if the jury believe from the evidence that the injury done plaintiff was by the passage of water from overflow or rains, through a culvert made by defendant through its road bed, they will find for the defendant, unless they believe that such culvert was not necessary for the protection of defendant's road bed, but was constructed for the purpose of injuring plaintiff.”

3d. “If the jury find that, prior to the injury complained of by the plaintiff, the right of way for defendant's road was acquired by defendant by condemnation at law of the land on which said road was located through the tract of which plaintiff's land is a part, then plaintiff cannot recover for damages caused by the flow of water through said road bed into his land.”

These instructions were objected to by the plaintiff and exceptions taken to the...