Pearson Elevator Co. v. Missouri, K. & T. R. Co.
| Decision Date | 01 February 1932 |
| Docket Number | 17171 |
| Citation | 46 S.W.2d 247 |
| Parties | PEARSON ELEVATOR CO. v. MISSOURI, K. & T. R. CO. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Cooper County; H. J. Westhues, Judge.
“ Not to be officially published.”
Action by the Pearson Elevator Company against the Missouri, Kansas & Texas Railroad Company. Judgment for plaintiff, and defendant appeals.
Affirmed, with a request by ARNOLD, J., dissenting, that the case be certified to the Supreme Court.
Pendleton & Martin, of Boonville, and Carl S. Hoffman, of St. Louis, for appellant.
Roy D. Williams, of Boonville, for respondent.
Action to recover damages for loss of the use of plaintiff’s elevator during the years 1927, 1928, and 1929, because it was inundated with water caused by defendant’s failure to construct, within three months after the completion and operation of defendant’s railroad, suitable ditches along each side of the roadbed of such railroad, to connect with a water course known as Salt creek, which emptied into the Missouri river, so as to drain plaintiff’s land on which said elevator stood, said railroad being adjacent to said land and elevator, and said ditches being rendered necessary by the construction of said railroad’s embankment at said place, all of such construction being required by section 9953, R. S. Mo. 1919 (now section 4765, R. S. Mo. 1929).
After a trial, the jury returned a verdict for plaintiff in the sum of $600 on the first, $1,050 on the second, and $1,050 on the third count of the petition. This the court reduced to $300 on the first count, $450 on the second, and $150 on the third count. After such enforced remittitur was entered the defendant’s motion for new trial was overruled, and defendant appealed.
In addition to alleging the facts hereinabove indicated, the petition alleged that defendant wholly failed and neglected to construct and maintain said ditches so as to afford a sufficient outlet to drain and carry off the surplus and overflow water that accumulated on plaintiff’s land south of defendant’s railroad embankment and passed into plaintiff’s elevator; that defendant’s said embankment and roadbed impeded the flow of water, and caused it to be gathered into great quantities in the elevator of plaintiff, and defendant wholly failed and neglected to provide ditches upon the sides of its said railroad to carry off said water to the natural water courses, and, as a consequence, water accumulated in plaintiff’s elevator, and the same was rendered unfit for use during each of the years above mentioned.
The answer to the first count admitted defendant’s incorporation as a railroad, and that at all times stated in the petition it was operating the same, and denied generally every other allegation in said petition. For further answer to said first count, defendant stated that:
"At the time of the construction of the defendant’s railroad, one Pearson, from and through whom plaintiff claims title to the land on which its elevator stands, conveyed to the plaintiff’s predecessor in ownership of said railroad, the right of way of said railroad, over said land and expressly provided by his deed of conveyance that the drainage of said land into Salt Creek, theretofore existing, should be obstructed by omission to leave openings through the roadbed, and that the plaintiff is now estopped to complain of the obstruction of said drainage and to demand the construction of a ditch to afford such drainage.
That the stockholders and incorporators of the Pearson Elevator Company were, before the incorporation of said company, and said company after its incorporation was familiar with the conditions existing at the place where said elevator was constructed, and at the time it was constructed. That said condition had existed for a long time prior to the said incorporation and that such fact was well known to the incorporators and to the plaintiff. That notwithstanding such knowledge, the said stockholders and officers of said corporation and the plaintiff, built said elevator on said land. That such act was contributory negligence on the plaintiff’s part and that thereby and by reason thereof the plaintiff assumed the risk of any damage that might be done by the failure, if any, of the defendant to dig ditches along its right of way, for drainage of the land on which said elevator was constructed.
Further answering the third count of said petition the defendant states that in the year 1928 a drainage district was incorporated by a decree of the Circuit Court of Howard County, Missouri, under and pursuant to the provisions of chapter 28 of Article 1 of the Revised Statutes of 1919 of said state, which drainage district embraced the land of the plaintiff described in its petition and also all of the defendant’s right of way adjacent to said land and between said land and where Salt Creek crosses its right of way to the east thereof. That prior to the year 1929 the plan of reclamation or drainage for said district was completed and an assessment of $17,500 was made against this defendant for benefit to its said property resulting from said plan of drainage, and that the defendant was thereafter forbidden by the statute, section 4425, R. S. 1919, to construct in said district any ditch or drain which would connect with said plan of drainage, and that the ditch or drain, down its right of way, to connect with Salt Creek alleged in plaintiff’s petition as necessary to drain its said land, and for the failure of the defendant to construct which ditch it seeks to recover against the defendant in this action, would connect with said plan of drainage in said district. And defendant further alleges that to hold the defendant liable to construct the said ditch down its right of way after having been assessed the sum of $17,500.00 for its share of the cost of said plan of drainage in said district would constitute the taking of the defendant’s property without due process of law, and would be in violation of section 30 of article 2 of the Constitution of the State of Missouri, and of Section 1 of article 14, of the Amendments to the Constitution of the United States."
The last paragraph of the answer above set out, beginning with the words, "Further answering the third count of said petition," and ending with the words, "Constitution of the United States," was, on motion of plaintiff, stricken out by the court on the ground that such allegations "constituted no defense to this action."
The evidence tends to show that the farmers in the Missouri river bottom built the grain elevator on the south side of defendant’s right of way, it costing about $30,000; that the building was of concrete from about 3 feet above the ground; that the foundation was of a double layer, mixed with asphalt to make it water tight, rising about 3 or 4 feet above the ground. The foundation went down about 4 feet in the ground; that the basement was about 6 feet deep; that the floor which was the basement top was concrete, and the elevator’s capacity was about 50,000 bushels.
It was further shown:
That the building was finished in 1921, built on a high knoll in the bottom. That there was a kind of a ditch part of the way along the right of way of the railroad much like a borrow ditch, which would fill up with water, and then it would back into the elevator and be held there for more than a month and frequently much longer. That Salt creek was about 40 feet wide and 8 or 10 feet deep, and meandered in an easterly direction on the south side of the right of way, and finally emptied into the Missouri river, the elevator being also on the south side of the railroad.
The railroad company placed tile in its roadbed about 300 yards west of the elevator, and, when Salt creek would overflow, which frequently occurred, the water therefrom would flow through the tile across the right of way into the bottom and around the elevator. That the railroad company did not take care of the water by means of ditches along each side of the right of way, as the statute requires. That at the time the elevator was built no water got into the elevator, and there was no danger of its doing so.
That in 1927 and years thereafter the water backed up and stood in the pit of the elevator. That the rental value of the elevator was from $2,500 to $3,000 a year. That the elevator was practically abandoned in the years 1928 and 1929. That the water would get up in the bins and damage the wheat therein. That a ditch at the side of the elevator adjacent to the right of way would have drained the water from around it. That in the high water Salt creek would come over the railroad right of way and flow back around the elevator; that in 1928 and 1929 the water stood inside and outside of the...
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