Schneider v. Missouri Pac. Ry. Co.

• Decision Date: 06 February 1888
• Parties: JACOB SCHNEIDER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 68

JACOB SCHNEIDER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Vernon Circuit Court, HON. CHARLES G. BURTON, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action for the recovery of damages caused to plaintiff's land, crops, and grass, etc., by overflow occasioned, as alleged, by the defendant's negligence. The negligence charged is in the construction and maintenance of the approaches to the railroad bridge of defendant across the Marmaton river in Vernon county. The approaches are alleged to be " a solid earthen embankment of an average height, above the level of the surrounding bottoms and other lands, of about eight feet," about five hundred yards in length on one side of the river, and one hundred yards in length on the other side. It is charged that the defendant was negligent in not providing, in the approaches, openings and water-ways for the water escaping from the Marmaton river in times of overflow, and the water accumulating from rains and snows.

The court gave for the plaintiff the following instructions:

" 1. The jury are instructed that if they find, from the evidence, that defendant, in constructing and maintaining the roadbed and approaches to the bridge crossing the Marmaton river, as mentioned in the pleadings and proof, built and maintained, in a negligent and careless manner, in not building the same on trestles, or in not providing sufficient water-ways to allow the surplus water of said river to escape, and that said roadbed was not built in such a manner as a prudent and careful person would have built, in view of all the facts and surroundings, and by reason of said roadbed being built, unnecessary damage was done the plaintiff by reason of said surplus water from said river being forced over, upon, and held upon plaintiff's land, and that said damage would not have occurred to plaintiff's land and crops but for the said improper building of said roadbed then they will find the issue for the plaintiff, and assess as damages on each count in such sum as may appear to them from the evidence, not exceeding the claim by plaintiff in his petition."

" 2. The court instructs the jury that, while the defendant had the right to build and maintain said roadbed yet in so doing it was bound to take notice of the character and lay of the land and country over and through which it builds, and the original course and evenness, and nature, and the character of the stream in the locality where it builds such roadbed. And if you find, from the evidence, that the place mentioned in the pleadings and proof, as where the roadbed was built and maintained of earthen embankments, is and was low bottom lands, and the surrounding country towards plaintiff's was low and flat, and the said Marmaton river was accustomed to overflow its banks and spread over the surrounding country, and you further find that sufficient openings and water-ways were not made in said embankments, at the time of the injuries complained of, to carry off said surplus water escaping from said river, and that the trestle for the railroad to run over, and a roadbed with sufficient openings and water-ways to carry off said surplus water from said river, would have been as good, substantial, and safe for the defendant to have built, regard being had to its own interest, its duty to the public and its employes, and the rights of others, as said embankment, and that by so building its roadbed on trestles, or with sufficient water-ways for the purpose of conveying the said surplus waters, the damage to the plaintiff would have been averted, you will find for the plaintiff, and assess his damages as per instruction number one."

ADAMS & BOWLES, and D. A. HARRISON, for the appellant.

I. The defendant's demurrer to the plaintiff's evidence, at the close of his case, and its instruction numbered one, at the close of the entire case, should have been given. There is no evidence that the defendant's bridge, or the embankment which formed its approach thereto, tended to make the water overflow. Mayer v. Railroad, 88 N.Y. 351; Radcliffe v. Mayor, 4 Comst. 195; McCormick v. Railroad, 57 Mo. 433.

II. The plaintiff's instructions were evidently based on the doctrine enunciated in the cases of Shane v. Railroad, 71 Mo. 237, and McCormick v. Railroad, 70 Mo. 359, which was never the law in this state, and those cases have been expressly overruled. Benson v. Railroad, 78 Mo. 504, 512; Abbott v. Railroad, 83 Mo. 284-285; Jones v. Railroad, 84 Mo. 151. The waters overflowing the banks of the river were surface waters. McCormick v. Railroad, 57 Mo. 438; Abbott v. Railroad, supra.

J. B. JOHNSON, for the respondent.

I. The theory on which this case was tried is fully supported by the following authorities: Jones v. Railroad, 84 Mo. 151; Abbott v. Railroad, 83 Mo. 271 Moss v. Railroad, 85 Mo. 86; Martin v. Benoist, 20 Mo.App. 262; Brink v. Railroad, 17 Mo.App. 177.

II. The petition shows that this case was not tried on the law as declared in the case of Shane v. Railroad, 71 Mo. 237, and we respectfully contend that the case was fairly presented, honestly considered, and justly decided by the jury, and the judgment should be affirmed.

HALL J.

The only question in this case is as to the correctness of the two instructions given for the plaintiff. That question is, was it the duty of defendant, under the facts hypothetically stated in the instructions, to have made in the railroad embankment sufficient openings and water-ways to carry off the surplus water? The water which overflowed the banks of the Marmaton river and spread over the surrounding country was surface water. McCormick v. Railroad, 57 Mo. 438. The duty of the defendant, under the facts stated, was no greater than would have been the duty of any other land proprietor under the same facts. The question in this case must, therefore, be answered in accordance with the rule relating to surface water, free from embarrassment on account of any other rule or principle of law.

There is an irreconcilable conflict between the decisions in this country concerning surface water. The courts of certain states, in their decisions on the subject, adhere to the rule of the civil law, while the courts of the other states follow what is known as the common-law rule. The decisions of our Supreme Court on this subject have not been uniform. In McCormick v. Rail road, 70 Mo. 359, and Shane v. Railroad, 71 Mo. 244, the rule of the civil law was approved, Hough, J., dissenting in each case. In Abbott v. Railroad, 83 Mo. 272, all the former decisions on the subject were reviewed, the rule of the civil law rejected, and the common-law rule declared to be the law in this state, except so far as that rule may have been changed by section 810, Revised Statutes. It was explained why that statute was immaterial in that case, and it may, perhaps, be well for us to say that for the reasons therein given the statute has no bearing whatever on this case.

The rule of the civil law is thus stated by Judge Dillon: " By the civil law, certain easements, or services (as they were termed by that law), were based upon the relative situation of the premises; and the lower land owed to the higher land the service or servitude of being bound to receive all the water which naturally (without the hand of man) flowed down upon it. The inferior proprietor could not obstruct the flow to the injury of the superior proprietor, nor could the latter make the servitude more burdensome. Livingston v. McDonald, 21 Iowa 168. The common-law rule is thus stated by Dixon, C. J " The doctrine of the common law is, that there exists no such natural easement or servitude in favor of the owner of the superior or higher ground, or fields, as to mere surface...