Moss v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 86
• Parties: MOSS v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 86

MOSS

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Butler Circuit Court.--HON. R. P. OWEN, Judge.

REVERSED.

Bennett Pike for appellant.

(1) Defendant's instruction, numbered one, at the close of the whole case, in the nature of a demurrer to the evidence, should have been given. “In the absence of any negligence, unskilfulness, or mismanagement in the construction of any embankment for the bed of a railroad over land, through which there was no natural channel for the passage of water, the injuries done by said embankment by causing the water to overflow the land of the adjoining proprietors, must be considered as the natural consequence of what the corporation had acquired a lawful right to do, by the condemnation of the land, and the assessment of damages therefor, and such damages must be taken to have been included in the compensation assessed, or it was damnum absque injuria.” Clark's Adm'r v. Railroad, 36 Mo. 202; Brainard v. Clapp, 10 Cush. 6. (2) The court erred in refusing to give instruction numbered two, asked by defendant. McCormick v. Railroad, 57 Mo. 438. (3) The refusal to give instruction numbered three, asked by defendant, was error. See authorities cited under first head. (4) Instruction numbered four, asked by defendant, correctly declared the rule of damages in the event of a recovery, and should have been given. Its refusal was, therefore, error. (5) The modifying of said instruction, numbered four, asked by defendant, by the court, and giving it, as modified, to the jury, was erroneous. DeSteiger v. The Railway Company, 73 Mo. 33.

C. D. Yancey for respondent.

The giving of the declarations complained of was harmless error, from which the defendant received no injury, and affords no just cause of complaint. Wade v. Mo. Pac. Ry., 78 Mo. 362. Defendant, by its answer, attempts to justify the wrong, and urges its chartered privileges. It is conceded it has the right to make any desired alteration, or improvement, on its right of way; but the maxim, “use your own property so as not to injure another,” applies to railroad companies, as well as to individuals. Illinois Central Railroad Co. v. Grabill, 50 Ill. 341. It was the duty of the company to open ditches, or drains, through its embankment by which the water accumulated on plaintiff's land might freely pass off. R. S., sec. 810. And it had no right to so erect its trestle work, and embankment, as to overflow plaintiff's cultivated lands, and leave the water standing thereon, without means of egress, and then claim exoneration because of its chartered privileges. Its charter confers no such right. Bradley v. Railroad, 21 Conn. 294; Waffle v. Railroad, 58 Barb. 413; Kaufman v. Griesemer,26 Pa. St. 407; McCormick v. Railroad, 57 Mo. 433. The judgment should be affirmed, with ten per cent. damages. R. S., sec. 3777.

SHERWOOD, J.

This is an action for damages instituted by plaintiff, based upon a change made in its road bed at a certain point, by substituting trestle-work in the place of an...