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

• Decision Date: 31 October 1879
• Citation: 70 Mo. 359
• Parties: MCCORMICK, Appellant, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY.
• Court: Missouri Supreme Court

70 Mo. 359

MCCORMICK, Appellant,

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

Supreme Court of Missouri.

October Term, 1879.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Ben. Loan for appellant.

Willard P. Hall for respondent.

NAPTON, J.

When this case was here in 1874, (57 Mo. 433,) the court clearly indicated the ground upon which the plaintiff's right of recovery must be based. The opinion in the case adopted the views of Lowrie, J., in Kauffman v. Griesemer, 26 Pa. St. 415. And I doubt if they can be expressed more forcibly or plainly than in the very language of this eminent judge: “Where two fields adjoin,” says Judge Lowrie, “and one is lower than the other, the lower must necessarily be subject to all the natural flow of water from the upper one * * Hence the owner of the lower ground has no right to erect embankments whereby the natural flow of the water from the upper ground shall be stopped; nor has the owner of the upper ground a right to make any excavations or drains by which the flow of water is diverted from its natural channel, and a new channel made on the lower ground; nor can he collect into one channel waters usually flowing off into his neighbor's fields by several channels, and thus increase the wash upon the lower fields. * * If the owner of the upper ground wrongfully direct an unnatural quantity of water upon the ground of a lower neighbor, by collecting several streams together and discharging them at one place, or by any other means, the neighbor below may have an action against him.” This principle is recognized by the Supreme Court of New York in Waffle v. N. Y. Central R. R. Co., 58 Barb. 413: “Every person has the unquestionable right,” says Judge Thompson of that court, “to drain the surface water from his own land, to render it more wholesome, useful or productive, or even to gratify his taste or will, and if another is inconvenienced or incidentally injured thereby, he cannot complain. No one can divert a natural water course and stream through his land, to the injury of another, with impunity; nor can he, by means of drains or ditches, throw the surface water from his own land upon the land of another, to the injury of such other. But where a person can drain his own land without turning the water upon the land of another, or where it can be done by drains emptying into a natural stream and water course, there can be no doubt of his right thus to drain even though the effect may be to increase the volume of water unusually at one season of the year, or to diminish the supply at another.”

These general principles were in truth drawn from the Roman law, but fully recognized to be sound in English and American adjudications, and were the basis of the decision of this court when the case was here before. As Judge Vories, who delivered the opinion of the court, observed: “The plaintiff complains that the defendant had so constructed its road that the embankment made therefor had collected a large body of surface and overflowed water on the east side of its road-bed, where the same adjoined the land of plaintiff, and that after said water had been so collected in a large body or pond, the defendant negligently and maliciously cut an artificial channel from said body of water through the embankment of its roadbed, and drained all of said large body of water on to plaintiff's land, by which plaintiff was damaged,” &c. And the judge proceeded to say that an instruction to the jury which declared in effect that if the defendant did this act charged, in the manner charged, defendant was liable, was a proper instruction, and should have been given. The words “neggently and maliciously” seem to be merely ornamental in this case--it is immaterial about the motive or the care except as it affects the amount of damages. It is not likely that the defendant paid any attention except to the interests of the company, or put in the culvert for any purpose other than the protection of their road. The question is, whether they had the right to do this, to the injury of plaintiff.

The theory of the present action is based on the following facts stated in the amended petition: The plaintiff owns fifty acres of land on the west side of the railroad, and charges that on the east side of said road a large body of water was collected by the embankment on which the road was built, partly from the high lands adjoining, but principally from the overflow of Contrary creek, and the back water from it produced by a bridge over it, built by defendant, which is alleged to be too narrow to allow the water, in heavy rains, to pass through it, and that in 1870 the defendant put a culvert or box or artificial channel, which discharged all the water thus collected upon plaintiff's land and produced the injuries complained of. As the plaintiff took a non-suit because of the instructions given by the court, the only question for our consideration is, whether these instructions were a fair exposition of the law to the jury, as it had been previously declared by this court, and since the propriety of instructions depends very much on the tendency of the evidence, one way or another, and they are not designed to be mere abstractions, it is proper, in order to determine their propriety, to look into the facts sworn to and those denied by the witnesses at the trial.

The facts which the plaintiff's evidence tended to prove, whether to the satisfaction of the jury or not is not material, were about these: The plaintiff was the owner of fifty acres of land on the west side of the defendant's railroad, and a portion of it, from two to four acres, was in a piece of low bottom two or three feet lower than the surrounding ground, and this low ground or basin extended over the road on the east side of it, to the extent of six or four acres--the witnesses differing as how the railroad divided this swag; all this low ground had been cultivated every year for twelve or sixteen years before the road was built. The road ran north and south and divided this bottom or basin, as has been stated, leaving two or four of the eight acres on the west side. Forty or fifty rods north of this basin, the road crossed a creek called Contrary creek, which ran from east to west, and a bridge was built over it by the defendant, which, however, in heavy rains and high water did not allow all the water to pass through, but backed up the water so as to flow back through the depression necessarily made by the embankment on which the track was laid, into the basin and occasioned a standing pond on the east side of the track, sometimes three or four feet deep, and occasionally, in heavy rains, overflowing the track. To prevent this, I suppose, the defendant in November, 1870, cut a sluice or box thirteen by eighteen inches in the lowest part of this depression, and this of course threw all this water, thus collected both from the high lands adjoining and from the back water of Contrary creek, when the rainy season of June, 1871, came on, into plaintiff's field, destroyed ten acres of corn he had planted there, filled up the cellar of his house, which is not in the the basin, but thirty or fifty rods from it, ruined his well, destroyed his garden and perhaps occasioned ill health in his family

Supposing these facts to have been established, the liability of defendant to an action for the damages occasioned thereby, is plain if the doctrine asserted in this case before, and in all the cases on this subject, so far as have observed, is to be adhered to. Let us then compare the instructions given with this theory of the law. The first instruction for defendant is as follows: “The defendant had a right to construct its railroad so as to permit the water in proof to flow as it would have done if said railroad had not been made. And if the jury believe from the evidence that if said railroad had not been made, the water in proof would have...