Munkres v. Kansas City, St. Joseph & Council Bluffs R.R. Co.
| Decision Date | 31 October 1880 |
| Citation | 72 Mo. 514 |
| Parties | MUNKRES v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.
AFFIRMED.
W. P. Hall for appellant.
Heren & Son and Rea & Williams for respondent.
This was an action to recover damages for the diversion by the defendant of a certain stream of water from its natural course and channel whereby plaintiff's fields were flooded and injured. The testimony was conflicting as to whether the water diverted was that of a running stream or natural water course, or whether it was simply surface water.
The court, of its own motion, instructed the jury as follows:
1. The relinquishment of the right of way read in evidence, authorized the railroad company to enter upon the plaintiff's lands and construct its road in the usual manner of building roads, by throwing up and raising the ground for the road-bed, and by cutting ditches along the sides of the road to keep the water off the track. If, therefore, you find from the evidence, that the road-bed and ditches were constructed with reasonable care and skill, with reference to the use of the same for railroad purposes, and the plaintiff has been incidentally injured by the collection and flow of surface water upon his lands caused by the construction of the road, he is without remedy for such injury. The railroad company was not bound to make ditches larger or longer than was necessary to secure its road-bed. It was not bound to make ditches to protect th plaintiff's land from injury from surface water which migh collect along the road.
2. If the jury believe from the evidence that in the construction of the railroad, the water of a stream or branch (known as the Wells branch) was changed and diverted from its usual natural channel and course of flowage, and caused to flow in a new direction down and along the railroad track, and that thereby the whole or any part of the water of said branch so turned and diverted flowed upon and over the lands of the plaintiff (described in the petition) in the years 1870, 1871, 1872, and up to May, 1873, to the injury of the plaintiff's crops, you should find for the plaintiff, and assess his damages at such sum as you may believe from the evidence he has sustained by reason of the waters of said branch being so turned out of and from its natural channel upon the plaintiff's lands by the construction of the road.
3. The main question for the jury to determine is, whether the railroad company, in the construction of the road, by its embankments and ditches, diverted the water of a stream or water course from its usual and natural channel, and caused it to flow in a new direction, whereby some part of the water so turned and diverted, was made to flow upon plaintiff's land to his injury. A water course is a stream or brook having a definite channel for the conveyance of water. It may be made up, more or less, from surface water from rains and melting snow, but after...
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