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

• Decision Date: 31 May 1875
• Citation: 60 Mo. 334
• Parties: WILLIAM MUNKERS, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD Co., Appellant.
• Court: Missouri Supreme Court

60 Mo. 334

WILLIAM MUNKERS, Respondent,

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

Supreme Court of Missouri.

May Term, 1875.

Appeal from Andrew Circuit Court.

W. P. Hall, with C. A. Mossman, for Appellant.

I. The grant is for a right of way one hundred feet wide. The railroad had the right to use the whole of said one hundred feet for railroad purposes. The term “Railroad,” has no proper application as signifying road bed or track. The term “road bed” or “track” has such a signification, and is the proper term to use in the grant, if intended to be given only on the condition that the road bed was located on the line.

Particular words as, “on the line of a railroad,” in a contract for the sale of land do not necessarily imply that the land is bounded on one side by a railroad. (Burnham vs. Bank, 45 Mo., 349; Marshall vs. St. L. & I. M. R. R., 51 Mo., 138; Chicago vs. Sheldon, 9 Wal., 50.)

We contend that the terms of the deed are satisfied, if any portion of the right of way is on the section line, and includes it.

II. There was no evidence of the turning of a stream or natural water-course, and for the diversion of surface water, to prevent it coming on our land, we are not liable. (McCormack vs. K. C., St. Jo. & C. B. R. R. Co., 57 Mo., 433;Parks vs. City of Newburyport, 10 Gray, 28; Gannon vs. Hagardon, 10 Allen, 106; Flagg vs. City of Worcester, 13 Gray, 601; Inhabitants of Franklin vs. Fisk, 13 Allen, 211; Ashley vs. Wolcat, 11 Cush., 192; Turner vs. Inhabitants of Dartmouth, 13 Allen, 291; City of Bangor vs. Lanril, 51 Me., 521; Luther vs. Winnesemet Co., 9 Cush., 171; Hoyt vs. Hudson, 27 Wis., 656.)

J. P. Altgeld, for Respondent.

I. The term “railroad” in this case, must be construed according to its commonly accepted meaning in the community at large, not according to its meaning among a particular class; the object being to determine how the parties understood it at the time the contract was made. (Pavey vs. Bush, 3 Mo., 447; 1 Blacks., 59; 14 Mo., 3; 13 Mo., 191; 16 Mo., 436; 25 Mo., 13; 2 Sto. Cont., 1; 2 Pars. Cont., 5 ed. p. 494.) And as used in the community, and particularly in farming communities, it is understood to mean the embankment or road bed, together with the ties and rails. Therefore, when respondent inserted in the conveyance of right of way the condition that the road should be built on the section line, he meant that the road bed should be built on it, and, moreover, the testimony shows that it was so understood by all parties at the time of the conveyance. (2 Gray, 274.) The “one hundred feet” are always determined by measuring fifty feet each way from the centre of the road. For, whenever the road or road bed makes a curve, the “one hundred feet curve with it, and whenever you shift the road bed you shift the “one hnndred feet.”

II. On the question of flooding, the instructions given by the court were favorable to the defendant and appellant, and the judgment should not be molested. (1 Redf. Railw., 290, 296, 333; 2 Kennan, N. Y., 486; Easterbrook vs. Erie R. R. Co., 51 Barb., ___; McCormack vs. K. C., St. Jo. & C. B. R. R., 57 Mo., 433.)HOUGH, Judge, delivered the opinion of the court.

The petition in this case contained three counts. The third was abandoned at the trial and need not be further noticed. The first count claimed damages from the defendant, as the successor of the Missouri Valley Railroad Company, under and by virtue of certain statutes of the State, and alleged that said last named company without leave, and wrongfully, entered upon the lands of the plaintiff in Andrew county, Missouri, and broke up and graded, and rendered useless to the plaintiff, a strip of land one hundred feet wide and one hundred and sixty rods long, and occupied and used said strip for railroad purposes, and excluded the plaintiff from any benefit, use or enjoyment thereof, and that said unlawful entry, use and occupation has since been continued and maintained by the defendant, as the successor of said Missouri Valley Railroad Company.

The second count alleged that the said Missouri Valley Railroad Company, by negligently grading its said railroad, and making insufficient and worthless culverts, water-gaps and ditches, along the line thereof, obstructed and diverted from its natural course and channel a certain stream of water, which had never before flowed upon or flooded the plaintiff's land, and thereby caused said water to stand upon and flood about fifty acres of plaintiff's cultivated fields, and that the defendant, as the successor of said Company, has ever since maintained said railroad with its defective culverts, water-gaps and ditches, and has thereby continued to flood plaintiff's said land as aforesaid.

The defendant denied the unlawful entry and damage alleged in the first count, and averred that the Missouri Valley Railroad Company entered upon the premises in question, and constructed its said road over the said land, and that the defendant had ever since maintained the same, under and by virtue of a grant from the plaintiff to the said Missouri Valley Railroad Company, its successors and assigns, of the right of way over the same, for a width of one hundred feet, for railroad purposes, and not otherwise. The defendant denied all negligence and injury alleged in the second count, and relied upon the grant of the right of way, set up in its answer to the first count, and averred that all ditches, culverts and embankments constructed by the Missouri Valley Railroad Company, and maintained by the defendant, were constructed and maintained under and by virtue of said grant, and were necessary in the construction and operation of said railroad, and that the same were lawfully made in pursuance of said grant.

The plaintiff replied, denying that the...