Murphy v. St. Louis-San Francisco R. Co.

• Decision Date: 29 November 1920
• Docket Number: No. 13581.,13581.
• Parties: MURPHY v. ST. LOUIS-SAN FRANCISCO R. CO. et al.
• Court: Missouri Court of Appeals

226 S.W. 637

205 Mo. App. 682

MURPHY v. ST. LOUIS-SAN FRANCISCO R. CO. et al.

No. 13581.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

Appeal from Circuit Court, Henry County; Chas. A. Calvird, Judge.

Action by W. H. Murphy against the St. Louis-San Francisco Railroad Company and James W. Lusk and others, receivers. From judgment against defendant receivers, they appeal. Affirmed.

W. F. Evans and E. T. Miller, both of St. Louis, John A. Gilbreath, of Clinton, and John E. Lucas and Wm. C. Lucas, both of Kansas City, for appellants.

James D. Lindsay, .of Jefferson City, and Peyton A. Parks, of Clinton, for respondent.

TRIMBLE, J.

This action, instituted on March 31, 1916, was brought by a landowner against the St. Louis & San Francisco Railroad Company and its receivers for damages to crops from overflow of water obstructed until it backed over and was held on plaintiff's land by defendants' roadbed and line of railway. The cause of action relied upon is that given by section 3150, R. S. 1909. The petition originally was in three counts, the first alleging damage to crops from an overflow in October, 1914, the second, a similiar injury from an overflow in May, 1915, and the third stating another loss on account of an overflow in September, 1915. Upon the trial the suit was dismissed as to the company itself, the cause proceeding against the receivers, who were shown to have been in charge of and operating the railway, having been put in charge thereof in April, 1913, and who have been in charge thereof ever since. At the close of the case a demurrer was offered by the defendant receivers to the evidence under each count. The court indicated that it would sustain the demurrer to the second count because the evidence conclusively showed the overflow of May, 1915, was from a flood or rainfall of unusual and unprecedented character, whereupon plaintiff dismissed the second count, leaving the case standing upon the first and third counts wherein plaintiff asked judgment for $562.50 and $525 respectively. The court overruled the demurrers to these counts and submitted the case to the jury. A verdict for plaintiff was returned for $281.25 on the first count and $262.50 on the second. The receivers have appealed.

Grand river, in Henry county, at the locality involved herein, flows almost south, but somewhat in a southeasterly direction, and is crossed by the railroad on its bridge. From this bridge the river flows in a more southerly direction. The railroad at said locality runs from the northeast to the southwest; that is, as the railroad on the north or east side of the river approaches said stream it does so from a northeasterly direction, and from the crossing point runs southwesterly and then southerly until, at a distance of about a half mile south of the bridge, it reaches high ground, much higher than the banks of the river and wholly out of reach of any overflow of water therefrom.

Deepwater creek runs in an easterly direction toward Grand river and empties into the latter at a point about 300 feet above the railroad bridge. Plaintiff's farm of 110 acres lies south of Deepwater creek, and Cooper creek, running north into Deepwater, forms the eastern boundary of said farm. As thus located, plaintiff's land is about a mile west of the nearest point of the railway track as it runs from the bridge in a southwesterly direction and curves to the south on its way to the high land above mentioned.

In addition to the drainage into Grand river afforded through Cooper and Deepwater creeks, flowing as above indicated, there is a natural drain across the territory lying south of Deepwater and between plaintiff's land and Grand river. This natural drain began not far east of Cooper creek, and prior to the construction of the embankment ran eastwardly into Grand river at a point about a quarter of a mile south of where the railroad bridge is now located. This natural drain consisted partly of a "chain of lakes" (to use an expression of the witnesses) and a depression connecting them and continuing on to the river. The railroad, from the bridge southwest and south over the above-mentioned territory lying between plaintiff's land and Grand river, was constructed on a solid embankment 15 feet high having no openings therein and running from the south end of the bridge to the high ground above mentioned. Said embankment crosses said natural drain about a quarter of a mile south of the bridge. At the point where the embankment crosses said drain the latter is 6 feet deep and about 200 feet wide, and the embankment forms a solid dam across it. The bottom of the drain at this point is about 15 feet lower than the ground at the south end of the bridge. The ditch running along the west or northwest and upper side of the railroad embankment from the drain toward Grand river is grown up with small trees, etc.

The bridge across Grand river is about 250 feet in length and is 25 feet above the river, but plaintiff's evidence shows that two of the piers are out in the course of the river's channel and carrying capacity, and they obstruct the water as it flows under the bridge. There was no evidence to contradict this. When Grand river got high, the water which did not pass out under the bridge flowed out along the embankment in the so-called ditch alongside it into the drain, and was there held by the embankment along with all other water, surface or otherwise, that came through the drain across the territory hereinabove mentioned; and, when water was thus impeded at the bridge, it increased the water in the channel above so that Deepwater and Cooper creeks also overflowed into the drain until this backed up and stood on plaintiff's land. Finally, after sufficient time had elapsed for the water to pass out through the decreased opening under the bridge in Grand river, the waters thus held back by the bridge and the embankment would escape in that way. But, being so held back, they encroached and stood upon plaintiff's land, and remained there so long that his matured crops were injured and destroyed.

The evidence in plaintiff's behalf is that prior to the erection of the railroad embankment the water flowing in this drain across the territory above mentioned continued on until it emptied into Grand river about a quarter of a mile below the bridge site. Grand river has a large watershed and many tributaries above the bridge, and an immense volume of water comes down it to be carried off even in ordinary times; and the reducing of the channel under the bridge and the closing of the drain (which operated as an assistant outlet in carrying the water further down the river) caused the water to back up to and be held upon plaintiff's land until it eventually escaped under the bridge as hereinbefore stated, and in the meantime his crops were ruined. Prior to the years in question overflows occurred, and the water held back rose so high that at the place where the embankment crossed the drain the water got higher than the embankment and broke it, and on one of such occasions 800 feet of the embankment washed out, whereupon the waters went away rapidly. The embankment was replaced, and it and the track were strengthened by cables fastened to trees, etc., so that presumably for that reason the extraordinarily high flood of May 1915, did not wash it out. The waters, dammed up in the overflows of October, 1914, and September, 1915, for which the suit was brought, did not break over the embankment, but they rose to a sufficient height to back up and cover plaintiff's land to such a depth and for such a length of time that his crops were destroyed.

A reading of plaintiff's petition will disclose that it does not confine itself to the charge that defendants negligently maintained merely the embankment across the natural drain and failed to keep openings in it and to keep open lateral ditches along it to carry off said water. The petition sets out the situation and surroundings at the locality in question and then charges that the embankment, solid in character and without openings, completely obstructed the waters, surface or otherwise, flowing in said drain, and all of them were forced to flow in the channel under said bridge, and that "said bridge is so constructed and maintained that its piers and abutments extend into the natural channel of said river and obstruct the natural flow of waters therein," etc., and that, by reason of the obstruction of the natural drain and "the obstruction of the channel of said Grand river by the piers and supports of said bridge" and the maintenance of the embankments on both sides of the river, the waters, surface or otherwise, were dammed up and obstructed. It then charges that it was the duty of defendants to construct and maintain "suitable openings" through and across the right of way and roadbed of said railroad and suitable lateral ditches to connect with said natural drain and with Grand river so as to afford sufficient outlet to carry off the waters, including surface water, at and along "the place and places above described," and that the said water was and is obstructed, and its drainage is rendered necessary, "by the construction and maintenance of said railroad in the manner described." The petition then charged that because of the construction and maintenance of the roadbed and embankments, and because of the failure to maintain suitable openings and to keep open lateral ditches as hereinbefore described so as to afford sufficient outlet to drain and carry off overflow water, surface water, and rainfall, the same collected and was dammed up "because of said obstructions," and plaintiff's crop was damaged. So that it is manifest the petition is not limited to the mere damming up of the natural drain with the embankment, but includes also the obstructing of the channel of Grand river under said bridge. It is charged that the petition states no cause of action. This...