Ranney v. St. Louis & S. F. R. Co.

• Citation: 119 S.W. 484,137 Mo. App. 537
• Parties: RANNEY v. ST. LOUIS & S. F. R. CO. et al.
• Decision Date: 11 May 1909
• Court: Court of Appeal of Missouri (US)

119 S.W. 484

137 Mo. App. 537

RANNEY v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

May 11, 1909.

Rehearing Denied May 25, 1909.

1. RAILROADS (§ 108) — CONSTRUCTION AND MAINTENANCE—DITCHES.

Under Rev. St. 1899, § 1110 (Ann. St. 1906, p. 961), requiring every railroad company to construct suitable drains along its roadbed, etc., so as to afford sufficient outlet to drain the water along the road, wherever necessary, by the construction of the road, a railroad company must, where its bed obstructs the flow of surface water, provide lateral drains, if there is a water course, ditch, or drain into which the lateral excavations may be made to flow.

2. RAILROADS (§ 114)—DITCHES—FAILURE TO CONSTRUCT—ACTION FOR DAMAGES.

In an action against a railroad for damages to land through failure to construct drains and ditches as required by statute, plaintiff held to have made out a prima facie case.

3. RAILROADS (§ 113) — CONSTRUCTION AND MAINTENANCE—DITCHES.

Rev. St. 1899, §§ 6962-6969, inclusive (Ann. St. 1906, pp. 3398, 3399), relating to ditches and drains, impose a penalty for the willful filling up or destruction of any drain. Section 1110 (Ann. St. 1906, p. 961) requires railroad companies to dig lateral ditches wherever there are ditches, drains, or water courses into which water gathered by the lateral ditches can be poured. Held that plaintiff had no right of action against a railroad closing private ditches on the lands of others, and failing to dig lateral ditches thereto.

4. WATERS AND WATER COURSES (§ 130)— PRESCRIPTION.

Prescriptive rights may be acquired in artificial water courses when intended to be permanent; but, when an artificial waterway is intended to exist only so long as suits the purposes of the one making it through his lands, even a riparian proprietor can acquire no easement as against him.

Appeal from Cape Girardeau Court of Common Pleas; Benj. F. Davis, Judge.

Action by James P. Ranney against the St. Louis & San Francisco Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

This plaintiff suffered a loss of crops in the years 1903 and 1904 in consequence of the overflow of his lands in the months of May and June. The present action was instituted to recover the amount of the loss on averments that defendants had omitted to perform their statutory duty in regard to constructing ditches by the sides of the railroad to drain away water and prevent adjacent lands from being overflowed, and this default was the cause of the damage. The petition contains three counts, but a verdict was returned only on the second and third, which are alike, except that one relates to the year 1904 and the other to 1905. It is stated defendants constructed a railroad through plaintiff's land, describing it, in 1902. Said land is in a bottom and level, and prior to the completion of the railroad and for a long time afterwards there were ditches, drains, and water courses running north and south across the railroad and near plaintiff's land, into which water falling or flowing on said land had always drained or flowed, and said ditches were sufficient at all times to carry the water away from plaintiff's land, and could have been connected by defendants with ditches and drains along the sides of their roadbed if such lateral drains had been constructed. It became the duty of defendants within three months after the completion of the railroad through the country to cause suitable ditches and drains to be constructed along the sides of its roadbed to connect with other ditches, drains, and water courses already there as aforesaid, so as to afford sufficient outlet to drain and carry off the water along the railroad. Defendants, not regarding their duty in that behalf, negligently and wrongfully closed up said ditches and drainage channels, except drainage ditch 1, which had been constructed by the county of Scott. Defendants constructed a solid embankment from one to five feet higher than plaintiff's land, extending from the town of Commerce to Sand Ridge, thereby completely damming up and obstructing the water from numerous springs on the south side of the railroad, as well as the drainage from thousands of acres of land which would, except for said embankment, have flowed south, and thereby causing water to overflow and stand on plaintiff's land at divers times during the year 1904 in such quantity that all his crops of corn, wheat, hay, and other products growing on 95 acres were totally destroyed, and the balance of his land rendered unfit for cultivation. The destruction of the crops and deprivation of the use of his land were caused wholly by the failure and refusal of defendants to construct and maintain suitable ditches and drains along the sides of the railroad as required by the statute, whereby the waters were obstructed and forced to spread out over plaintiff's land, to his damage in the sum of $3,000. The third count asked damages in the same sum for the loss suffered in 1905. A general denial was filed by defendants. Plaintiff's land lies four miles southwest of the town of Commerce, which is on the Mississippi river, and the railroad extends from Commerce through his farm. The Mississippi river lies a mile or so to the east, the intermediate country being bottom land, but not much subject to overflow from the river because of an elevation called Methodist Ridge, which extends south from Commerce parallel to the river and a quarter of a mile west of it. From that Ridge the land descends in a gentle slope westwardly to plaintiff's farm, and to what is known as North Cut Cypress, a swampy depression running across the west side of the farm. This locality is from 300 yards to three-quarters of a mile wide, and is grown over with cypress trees, shrubs, and bushes of various kinds; in fact, is a jungly marsh. It extends a mile or two north from the railroad, indefinitely south of it, and is the basin into which the surrounding country drains, particularly that to the east; the depression having no well-defined bank on the east side. Along its west side extends a bank 10 or 15 feet high, known as Sand Hill or Sand Ridge, at the top of which begins a region denominated Sandy Wood that extends westward. There was testimony to prove that on the extreme western side and at the foot of the bank of the North Cut Cypress marsh a sluggish stream about a foot wide meandered throughout most of the year, but went dry, except in little puddles, in the summer and autumn. Extending directly westward from the town of Commerce was a range of steep hills, on the south slopes of which were springs whose waters flowed southward toward the railroad. The railroad emerged from the hills at Commerce and trended southwesterly for about a mile and a half to where it crossed plaintiff's farm and the North Cut Cypress. The slope of the country was southward from the hills to south of the railroad track, and the natural flow of water was in that direction. South of the railroad the flow turned to the southwest, and proceeded in the same course until the North Cut Cypress swamp was reached, which was the natural outlet to carry the water to the Mississippi. Between the hills and the railroad are some 4,000 or 5,000 acres of land, through which flow a few rills from the springs to the north; notably one called "Hawkins' Branch." The railroad is built on an embankment ranging from two feet to five feet high—the entire distance from Commerce to plaintiff's farm. It was higher, of course, toward plaintiff's land at the southwest, as the slope was in that direction from the river on the east and the hills on the north. In the year 1900 Scott county constructed a public drainage ditch 22 feet wide and 5 feet deep, known as "North Cut Ditch," and extending from somewhere south of the railroad northward to the head of North Cut Cypress swamp. It was excavated in the swamp or depression and a little east of the center of it. After the construction of this ditch, it became the outlet for the waters of the basin or watershed theretofore drained by the swamp. The railroad passed into the possession of these defendants in 1902, having been built in 1892 by another company. Years before the road was built several landowners whose farms lay between Commerce on the east and plaintiff's farm on the southwest had dug private ditches across their lands for drainage purposes, and running, in the main, north and south. The company which built the railroad had left openings in the roadbed about 14 feet wide across these ditches, so the waters flowing in them, and any water flowing from the north, would not be obstructed, but would flow to the south of the dump, and then turn southwestwardly and flow into North Cut Cypress or North Cut ditch as before. How these apertures in the road were constructed and whether with walls of masonry or not the testimony does not show, but it proves they sufficed to let the waters of the country between the railroad and the hills escape to the south of the railroad and thence to the southwest, instead of accumulating and overflowing lands north of the railroad. All these openings lay between plaintiff's farm on the west and Commerce on the east, and though not on his land, he suffered no inconvenience while they were kept open. In the year 1902 these defendants filled them. There is testimony that thereafter water flowing southward from the springs in the hills through Hawkins' Branch and other channels, and also rainwater, accumulated north of the railroad embankment, submerging a good part of plaintiff's farm and destroying his crops during the years 1904 and 1905. Plaintiff had dug three ditches on his own land, but it does not appear there were openings through the railroad dump for them. The testimony inclines to prove ditches could have been dug along the north side of the railway dump to connect with the North Cut ditch on the west,...