Miller v. Chicago Great Western Ry. Co.

• Decision Date: 28 June 1910
• Citation: 129 S.W. 1034,145 Mo. App. 139
• Parties: MILLER v. CHICAGO GREAT WESTERN RY. CO.
• Court: Missouri Court of Appeals

129 S.W. 1034

145 Mo. App. 139

MILLER v. CHICAGO GREAT WESTERN RY. CO.

Kansas City Court of Appeals. Missouri.

June 28, 1910.

1. APPEAL AND ERROR (§ 511)—RECORD—BILL OF EXCEPTIONS.

Where the record proper showed the bill of exception was ordered to be filed, but did not show that it was filed, and there was nothing to identify the bill presented as the bill signed by the judge and filed, there was no matter of exception before the court.

2. WATERS AND WATER COURSES (§ 63) — SURFACE WATER—OBSTRUCTION OF FLOW— ACTION—PLEADING.

In an action against a railroad for the improper construction of a culvert, whereby water from a spring was obstructed, the damages were alleged to have accrued to four owners as tenants in common, including the plaintiff, and it was alleged that the other owners sold their interest to plaintiff and assigned their damages to him, whereby he became entitled thereto. Held, that the damage sued for was the damage which accrued while all four owned the property.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by Andrew O. Miller against the Chicago Great Western Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. W. Booher and I. R. Williams, for appellant. Sam Wilcox and Warren Rogers, for respondent.

ELLISON, J.

This is an action for damages for an alleged injury to plaintiff's land, caused by defendant's improper construction of a culvert under its track, whereby the water from a spring on plaintiff's land which adjoins defendant's railway was obstructed, etc. On a trial in the circuit court the defendant obtained a verdict. On plaintiff's motion the verdict was set aside for error in giving an instruction. Defendant thereupon appealed.

Objection is made to that part of the record which defendant calls the bill of exceptions. The ground of the objection is that, while the record proper shows it was ordered to be filed, it does not show that it was, in fact, filed as ordered, and that there is nothing to identify the bill that is presented to us by defendant as the bill which was signed by the judge and filed in the cause. The latter objection seems to be well taken. Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808; State v. Weinegard, 168 Mo. 490, 68 S. W. 357; McCord Rubber Co. v. St. Joseph Water Co., 181 Mo. 678, 691, 81 S. W. 189. There being no matter of exception before us, we must assume the court's action was well taken in sustaining plaintiff's motion,...