Poage v. Wabash, St. Louis & Pacific R. Co.
| Decision Date | 10 January 1887 |
| Citation | 24 Mo.App. 199 |
| Parties | JACOB M. POAGE, Respondent, v. WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Daviess Circuit Court, HON. CHAS. H. S. GOODMAN, Judge.
Affirmed.
Statement of case by the court.
This is an action to recover damages for the failure of defendant, a railroad corporation, to maintain and keep in repair a certain ditch for the purpose of draining the lands of plaintiff. The facts, as disclosed by the pleadings and evidence, pertinent to this appeal, are substantially as follows: Prior to December 12, 1878, the plaintiff was the owner of lands situated in sections 34 and 35, township 61 of range 29, in Daviess county. There was a ditch constructed by plaintiff for the purpose of draining the lowlands on section 34, beginning near the west line of the northeast quarter of section 34, and running east toward the northeast corner of the section, and thence into section 35, emptying into a lake on the north line of the section, as shown by the subjoined diagram:
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Just east of the division line between the two sections there was a hill or bank, through which the ditch was dug. At the lower side of the hill, where the ditch emerged, the plaintiff had placed a gate, at the mouth of a flume running through the hill, constructed so as to be raised or let down, as emergency required. Beyond this lake runs Big creek, the water of which, in times of freshets, would overflow and run into said lake, which caused the waters to flow out of the lake up the ditch, so that, if not restrained, would overflow from the ditch and flood the lands of plaintiff in section 34. The office of the gate constructed at the mouth of said flume was to admit the waters, when raised, to flow off through the ditch into the lake, and when let down to prevent the water of the lake, when swollen by the overflow from Big creek, from running through the flume and backing up on to plaintiff's farm lands.
Some time prior to the date aforesaid, the plaintiff sold the land in section 35 to one Christie, and executed to him a deed of conveyance, reserving, however, the right to the ditch in question. This deed was never put to record, but was burned up. On the said twelfth day of December, 1878, Christie conveyed the land in section 35 to the Council Bluffs & St. Louis Railroad Company. And on the same day the plaintiff by deed conveyed the land in section 34 to the same company. This deed, which was put to record, contained the following provision:
" It is hereby agreed that said railway company shall build and maintain a good and lawful fence, with two crossings and sufficient cattle guards, one crossing at center line, and the other at east line of section thirty-four, and also maintain the present ditch, in order to drain that portion of his land north of bank in section thirty-four, township sixty-one, range twenty-nine, and if trestle is not absolutely necessary for the protection of the bank, the same shall be filled up."
In February following the said railroad company conveyed said lands to the St. Louis, Kansas City & Northern Railway Company, and on the November following, in 1879, the latter road conveyed the same, by articles of consolidation, to the defendant railroad company.
The railroad track was built by the first named company, and the ditch in question was on the railroad right of way.
The deeds in question were drawn up by the agent of the railroad company, who was the engineer, after he made an inspection of the said ditch, and saw the office the flume and gate thereat performed in letting the water run out of the ditch into the lake, and checking the flow of water out of the lake up the ditch onto plaintiff's land in section 34.
The defendant neglected to keep said ditch in repair, and cut through the said hill and destroyed the flume and gate so as to admit the water in times of freshets, to flow out of the lake up the ditch on to plaintiff's farms in section 34 so that, in 1881, his crops were destroyed, or greatly injured, on the north side of said ditch, to his damage in the sum of nine hundred dollars, as shown by the evidence.
The petition set out the substance of the foregoing facts, laying the damages at twenty-five hundred dollars, for which he asked judgment. The answer tendered the general issue. The jury returned a verdict for plaintiff for nine hundred dollars. From this judgment defendant has appealed.
GEORGE S. GROVER, for the appellant.
I. The covenant sued on did not, and could not, extend to, or embrace, lands not owned by plaintiff at the time it was made, and which were not part or parcel of the demise. Spencer's case, 5 Coke 16; 1 Sm. Lead. Cases, 138; Norcross v. James, 21 Cent. Law J. 455.
II. In the absence of any covenant, the defendant had a lawful right to obstruct or divert the flow of surface water upon its own land. Stewart v. City of Clinton, 79 Mo. 603; 30 Am. & Eng. R. R. Cases, 103; Jones v. Railroad, 18 Mo.App. 251.
III. The first instruction given for the plaintiff was erroneous. It submitted to the jury the covenant sued on to be construed as a question of fact; and as to what construction the parties put upon the covenant at the time it was entered into; and an issue not made by the pleadings. Burriss v. Blair, 61 Mo. 133; Bunce v. Beck, 43 Mo. 266; Ely v. Railroad, 77 Mo. 34; Blakely v. Bernecke, 59 Mo. 193.
IV. The instructions asked by defendant and refused by the court, should have been given. Cases cited supra.
No brief for the respondent.
From the instructions given by the court, and those refused, it is manifest that the court tried the case on the theory that the stipulation contained in the deed from plaintiff to the railroad company was in the nature of a covenant running with the land, which gave the plaintiff a right of action over against the defendant, a subsequent purchaser. The defendant's instructions, refused, maintained the converse of this proposition.
There are two aspects of this case in which it may be considered. First, in reference to the effect of the stipulation contained in the deed of plaintiff to the railroad company as to that part of the ditch in section 34, and second, its effect in reference to that portion in section 35. Undoubtedly, had the plaintiff covenanted in his deed to maintain the ditch in section 34, for the use of the railroad company, it would have been an express covenant running with the land, which any subsequent purchaser, under the first grantee, could have enforced against the first grantor. But as the stipulation sought to be enforced in this action is against the grantee under a deed poll, not signed by the grantee, the question arises, is it in the nature of a covenant on his part, or is it to be regarded as merely a personal undertaking implied by the acceptance of the deed? In Parish v. Whitney (3 Gray 516), it is held that such a stipulation is not to be considered as a condition on which the grant is made, nor has the reservation of a right of entry, and consequently it is not a covenant running with the land; citing in support Plymouth v. Carver (16 Pick. 183). I quite concur in the opinion of Smith, J., in Burbank v. Pillsbury (48 N.H. 481), in saying that this opinion in 3 Gray is hardly borne out by the case cited in 16 Pick. In the last named case the land was conveyed " on condition that they (the grantees) should become bound by sufficient bonds to make and maintain a portion of the highway which passed by such land." Pursuant thereto the grantees gave such bond. The action against the assignee of the grantees was founded on this bond. By accepting the bond it would clearly indicate that the grantor intended to rely solely on the personal security, which, being collateral, could scarcely, on principle, be said to be in the nature of a covenant running with the land. This case in 3 Gray is adverted to by the same court in the subsequent case of Bronson v. Coffin (108 Mass.) in such terms as to indicate that the court did not accept this ruling by Thomas, J., as of binding authority, citing the cases of Kellogg v. Robinson (6 Verm. 276), and Burbank v. Pillsbury (48 N.H. 475), as holding the opposite view.
It is somewhat difficult for the mind to reconcile the conclusion reached in Parish v. Whitney, with the language of Shaw, C. J., in Newell v. Hill (2 Met. 180): " A deed poll, when accepted by the grantee, becomes the mutual act of the parties, and a stipulation on the part of the grantee, though it cannot be declared upon as his deed, yet, by the force of his acceptance, is a valid contract on his part, by which a right may be reserved or granted, or upon which a suit may be maintained."
In Kellogg v. Robinson (supra ), the stipulation in a deed poll required the grantee to maintain a partition fence between the demised premises and the other land of the grantor. It was held to be a covenant on the part of the grantee running with the land. Phelps, J., observed that it (the stipulation) concerns the land, and is not collateral, is not to be questioned. It is not to be supposed that the parties intended Smith, the grantee, should be bound after parting with the land, nor that the obligation to maintain the fence should cease with a transfer of the estate. Besides, where is the distinction between a covenant to repair houses (the case put by Coke), and a covenant to maintain the fences? Where the covenant runs in perpetuam there can be no distinction." The stipulation to maintain the ditch is the expressed consideration and condition on which the conveyance was made and as between the original parties to the deed an action for a breach of this compact would certainly lie. The form of...
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