Pearson Elevator Co. v. M.-K.-T. Ry. Co., 31776.

• Court: United States State Supreme Court of Missouri
• Citation: 80 S.W.2d 137
• Docket Number: No. 31776.,31776.
• Parties: THE PEARSON ELEVATOR COMPANY v. MISSOURI-KANSAS-TEXAS RAILWAY COMPANY, a Corporation, Appellant.
• Decision Date: 05 March 1935

80 S.W.2d 137 THE PEARSON ELEVATOR COMPANY
v.
MISSOURI-KANSAS-TEXAS RAILWAY COMPANY, a Corporation, Appellant. No. 31776. Supreme Court of Missouri, Division 2. March 5, 1935.

Appeal from Cooper Circuit Court. — Hon. W.S. Stillwell, Judge.

AFFIRMED.

Carl S. Hoffman and Pendleton & Martin for appellant.

The court erred in striking out that part of appellant's answer to the third count of respondent's petition, which pleaded the formation of the Pearson Drainage District, and the completion of its plan of drainage prior to 1929, and the prohibition of Section 4425, Revised Statutes 1919, against this appellant constructing ditches, thus depriving appellant of a valid defense to said third count of respondent's petition and depriving appellant of its constitutional rights. Appellant had the right to obstruct drainage of surface water from adjoining lands until the amendment of Section 1110, Revised Statutes 1899, by the Session Acts of 1907, pages 169-170. Alexander v. Ry. Co., 38 S.W. (2d) 549; Sec. 1110, R.S. 1899; Sess. Acts 1907, pp. 169-170. This action is founded on an abatable or continuing nuisance and not a failure to dig ditches. Hayes v. Railroad, 177 Mo. App. 208; Brown v. Ry. Co., 248 S.W. 14; Sec. 9953, R.S. 1919. The Pearson Drainage District is a governmental agency. Land & Stock Co. v. Miller, 170 Mo. 240. Appellant was forbidden by statute to construct ditches after the formation of the Pearson Drainage District and its construction of its plan of drainage. Sec. 4425, R.S. 1919. To compel the appellant to either construct ditches or be liable for damages resulting to respondent from surface water, after the formation of the district, completion of its plan of drainage and assessment of benefits, and in view of the prohibition of Section 4425, Revised Statutes 1919, with reference to construction of ditches, constitutes the taking of appellant's property without due process of law in violation of both Federal and State constitutional guarantees. Sec. 4425, R.S. 1919; Sec. 30, Art. II, Const. of Mo.; Sec. 1, Art. XIV, Amends. of Const. U.S.

Roy D. Williams for respondent.

(1) Practically all questions in this case have been decided in Carson v. Shaft, 221 S.W. 825; Carson v. Ry. Co., 184 S.W. 1039; Carson v. Ry. Co., 190 S.W. 949. (2) The evidence shows that the elevator could not be pumped out and no instruction was asked upon the measure of damages by appellant. Brown v. Shepard Elevator Co., 23 S.W. 1102. (3) The court properly struck out parts of appellant's answer to the third count of respondent's petition. Carson v. Shaft, 221 S.W. 825; Carson v. Ry. Co., 184 S.W. 1039; Carson v. Ry. Co., 190 S.W. 949. (4) No constitutional question was necessary to a decision. Therefore, this court has jurisdiction. Miller v. Connor, 250 Mo. 677, 157 S.W. 81; Rollins v. Assn., 213 S.W. 52; State v. Goad, 296 Mo. 452, 246 S.W. 52; Canning Co. v. Evans, 238 Mo. 599, 142 S.W. 319; Stegall v. Pigment Co., 263 Mo. 719, 173 S.W. 674; Lodge v. Moose, 17 S.W. (2d) 327; McManus v. Burrows, 280 Mo. 327, 217 S.W. 512; Bealmer v. Ins. Co., 281 Mo. 495, 220 S.W. 954; State v. Tatman, 278 S.W. 713. (5) Instructions were asked by the appellants, submitting the question of the feasibility of digging a ditch and the efficacy thereof. They were estopped to now question evidence upon that point. State ex rel. Miss. River & B.T. Ry. v. Allen, 272 S.W. 925. (6) The case was tried upon the theory of Carson v. M.-K.-T. Ry. Co., supra, and no other theory can now be advanced. Ellis v. Met. St. Ry. Co., 138 S.W. 23, 234 Mo. 657; LaCrosse Lumber Co. v. Powell, 247 S.W. 1022.

COOLEY, C.

This case, which comes to the writer on reassignment, was certified to this court by the Kansas City Court of Appeals. It is an action for damages suffered by plaintiff in the years 1927, 1928 and 1929 because of defendant's failure to construct and maintain suitable ditches along the sides of its railroad as required by Section 9953, Revised Statutes 1919, now Section 4765, Revised Statutes 1929 (3 Mo. Stat. Ann., p. 2158). There are three counts in plaintiff's petition, one for the damage suffered in each of the three years mentioned. Plaintiff recovered a verdict of $600 on the first count and $1050 on each of the others. The court required it to remit $300 of the verdict on the first count, $450 on the second and $150 on the third, and upon that being done overruled defendant's motion for new trial and entered judgment for the remainder of the sums assessed by the jury. An appeal was granted defendant to the Kansas City Court of Appeals where, by a divided court, the judgment of the circuit court was affirmed. One judge of that court was of the opinion that a constitutional question had been raised by defendant's answer and had been kept alive, thus depriving the Court of Appeals of appellate jurisdiction. [1] He deemed the decision of the majority holding that no constitutional question was involved and that the Court of Appeals had jurisdiction to be in conflict with the decision of this court in State ex rel. Brenner v. Trimble, 326 Mo. 702, 32 S.W. (2d) 760, and requested that the cause be certified to this court, which was accordingly done. While we are of opinion that a constitutional question such as to vest appellate jurisdiction in this court was not raised below and that the Court of Appeals had jurisdiction of the appeal we think that under Section 6 of the Amendment of 1884 to Article VI of the State Constitution the transfer of the cause by the Court of Appeals to

80 S.W.2d 138

this court lodges the case here for disposition of the appeal on the merits. [Child Saving Institute v. Knobel, 327 Mo. 609, 37 S.W. (2d) 920.]

Plaintiff's evidence tended to show the following: About 1921 the plaintiff built a grain elevator on the south side of defendant's right of way at Pearson, a station on defendant's railroad. The railroad had been built many years before. In that vicinity it is in the Missouri River bottom and on an embankment above the general ground level. A small stream called Salt Creek comes out of the hills to the north, and flows eastwardly on the north side of the railroad to a point a considerable distance east of Pearson where it passes through a culvert to the south side of the railroad and eventually discharges into the Missouri River. The ground slopes downward to the northeast from the place where plaintiff's elevator is located, and but for the railroad embankment surface water would drain off in that direction into Salt Creek. There are tiled openings in the embankment several hundred feet west of the elevator through which water passes to the south of the railroad when Salt Creek gets out of its banks. It also frequently happens that overflow water from Salt Creek comes over the railroad embankment. Because of the presence of the railroad embankment and the absence of ditches along the side thereof such overflow and other surface water, during the years involved herein, could not get back into Salt Creek when the water therein fell so that but for such impediments it could have done so, and it would stand on plaintiff's land and...