Nickey v. St. Louis, M. & S. E. R. Co.

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 661,116 S.W. 477
• Parties: NICKEY v. ST. LOUIS, M. & S. E. R. CO.
• Court: Missouri Court of Appeals

116 S.W. 477

135 Mo. App. 661

NICKEY v. ST. LOUIS, M. & S. E. R. CO.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. APPEAL AND ERROR (§ 1052)—REVIEW— HARMLESS ERROR—EVIDENCE.

Where plaintiff was allowed no damages for the washing away of the soil of his land by defendant's alleged construction of a water course, the erroneous admission of evidence as to such damages was not prejudicial to defendant.

2. PLEADING (§ 374)—ISSUES AND PROOF.

Where certain causes are alleged to have produced an injury, the pleader is bound by such allegations, and must recover by proving them or not at all.

3. WATERS AND WATER COURSES (§ 63)—INJURIES FROM OBSTRUCTION—WATER COURSES —ACTIONS.

Where, in an action against a railroad company for injuries to plaintiff's land by the obstruction of a water course, the petition charged that the backwater resulted, both from defendant's bridge and from an embankment, plaintiff was entitled to recover on proof that the embankment was the sole cause of the injury.

4. NUISANCE (§ 42) — EMBANKMENT — CONSTRUCTION — NOTICE.

Where defendant railroad company operated a road constructed by another, a part of which was alleged to constitute a nuisance, defendant could not be made liable therefor in the absence of notice.

5. APPEAL AND ERROR (§ 173) — REVIEW — QUESTIONS NOT RAISED AT TRIAL.

Where, in a suit against a railroad company for obstructing a water course, no objection was made at the trial that plaintiff could not recover because defendant had not constructed the road and there was no proof of notice to defendant that its embankment in question constituted a nuisance, defendant could not raise such objection on appeal.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Leander F. Nickey against the St. Louis, Memphis & Southeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jas. Orchard and W. F. Evans, for appellant. E. R. Lentz, for respondent.

REYNOLDS, P. J.

This action was instituted in the circuit court of Butler county. The amended petition upon which the case was tried, after setting out that the respondent is the owner of lands described in it, and that he was such owner at the time of the institution of the suit, avers that Cane creek is a natural water course and a running stream, with well-defined channels and bank, and that it runs through and along the eastern side of the lands of the respondent, the lands bordering on the west bank of Cane creek, for a distance of about a mile. It is then averred that the appellant is a railroad corporation, organized under the laws of this state, and owning a line of road running in close proximity to respondent's land, "and that during the years 1901 and 1902 the defendant was constructing said railroad and constructed the same over and across" Cane creek a short distance below plaintiff's farm, and in so doing negligently and carelessly constructed its road by causing to be built a bridge across Cane creek with numerous "bents" of piling driven into the creek, and thereby greatly retarding the flow of the water in the creek, causing the same to be dammed and backed up on the lands of the plaintiff; that there is a deep slough, drain, or water course, with a channel and bed and well-defined banks, connecting with Cane creek and leading off in an easterly or south-easterly direction for a distance of nearly a mile, where it connects with a cypress brake of considerable width, but with well-defined banks on either side, running in a southeasterly direction, and finally by means of another slough or water course, also with well-defined banks, again connecting with Cane creek several miles further down the stream; that the above-described sloughs, drains, or water courses, in connection with the cypress brake, form a natural water course through which the water flows continuously for a large portion of each year, and that with every ordinary freshet, and when the waters in Cane creek are about half bank full, the waters from the creek flow through the water courses above described, and during times of high water more than one-third of the waters of Cane creek pass off through the water courses as above described, and again find their way into Cane creek several miles further down the stream, and so afford relief to Cane creek in discharging surplus water during times of high water; "that the defendant in constructing its said railroad aforesaid so carelessly and negligently constructed the same by building a solid embankment over, along, and across the said slough several feet in height, and which said embankment was higher than the west bank of Cane creek," and that the embankment so constructed completely obstructed the natural flow of the water through the slough, drain, or water course, and during the rise in Cane creek, which occurred on the 15th and 16th days of December, 1902, the embankment, "so constructed by defendant," obstructed the outflow of water from Cane creek, and caused the same to be dammed and backed up; that, in connection with the obstruction of the flow of waters in Cane creek, the negligent and careless construction of the bridge caused the waters in the creek to rise several feet higher than they had ever been known, and caused the waters of Cane creek to overflow plaintiff's land, thereby washing away the fences on the land, and soaking and washing away his corn then on the land, and also washing away the soil, all to plaintiff's damage in the sum of $1,000. The answer, after a general denial, avers that on the 15th and 16th of December, 1902, and at the time of the alleged injury, there was an extraordinary freshet, the water being higher than had been known for years and higher than has been known since, and, if any damage was occasioned to plaintiff's property, it was by reason of the extraordinary freshet, and not by reason of the construction or maintenance of defendant's railroad, and was unavoidable. At a trial of the cause before the court and jury, the respondent, called as a witness in his own behalf, testified substantially as follows, as set out in the abstract prepared by appellant: That he had owned the land described in the petition for 10 years; that he had known the land 15 years; that his farm—that is, the land described in the petition—lies on the west and south side of Cane creek, except 7 acres, which lie east and southeast of that creek; that appellant maintained a bridge across the creek below respondent's land; that the bridge was 100 feet long where it spans the creek; that there is a drain or slough that leads off from Cane creek about one-half mile above the bridge of appe...