Shane v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1879
• Citation: 71 Mo. 237
• Parties: SHANE v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 237

SHANE

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON Judge.

AFFIRMED.

B. F. Stringfellow for appellant.

NAPTON, J.

This action was to recover damages from the defendant for the destruction of five acres of vegetables the plaintiff had in the Missouri River bottom, charged to have been occasioned by the embankment of defendant's road-bed constructed across a slough, without any culvert, by reason of which in the summer of 1873 a rise in the Missouri River and heavy rain-falls in the vicinity were prevented from pursuing their accustomed natural channel to a lake and thence to the river again. By reason of this obstruction, the waters of the overflowed river and the excessive rains were thrown upon the plaintiff's land and destroyed his crops. We insert the testimony and the instructions, from which the points in issue will be more readily ascertained than from the details of the petition.

William Shane, plaintiff, testified as follows: In 1873 I occupied the land described in the petition, which was owned by my wife; had four and one-half acres in cultivation; two acres in corn, one and one-half acres in potatoes, one acre in garden vegetables. All this crop was destroyed on the 7th or 8th day of July by water which had overflowed the banks of the Missouri River. The water in the river was very high. It overflowed the bank at a low place and passing in, was stopped by the embankment of defendant's land. It then ran along defendant's road to my wife's land and overflowed it, thus destroying my crops. The low place at which the water was obstructed by the road was about half a mile north of my land. The low place or slough was about one hundred feet wide and five or six feet deep, and ran from the river to a lake about a mile, and from the lake again about a mile the slough passed again into the river. Through this the water from overflows of the river in times of flood had passed before the road was built. I went on the land in the spring of 1871, and have lived there from that time to the present. In July, 1873, the water was from three to three and one-half feet deep on the land, and remained two or three weeks. The crops were all destroyed; the house surrounded by water. I was compelled to remove, and could not safely return for eight or nine weeks. There was no tressel or culvert in defendant's road for passage of water at the low place or from thence to plaintiff's land. The water stood on the land as deep as it did in 1867, though in 1867 the water in river was three feet higher. The road was not built in 1867.

On cross-examination, witness said: In 1867 the water came from the low place or slough spoken of on to my land. In 1873 the water was to within one and one-half or two feet of the top of the road. Have known this land since 1866. The water in floods of the Missouri River has been in the slough as far as the road three or four times in that time; never been out of the slough except in 1867 and 1873. The slough was not wet land, but was generally cultivated, never had water in it except from floods in the Missouri River. The bank of the slough is higher on the north side. Think that from highest part of the bank at distance of 100 feet there is a bank two feet high; this is not a steep bank but a gradual rise. 150 yards from highest the ground is two or three feet higher than lowest, and at 400 yards is four feet higher than lowest. This land is surrounded by higher land.

Austin Chouteau, for plaintiff, testified: Lived in 1873 within 150 yards of plaintiff. Knew his crops: two acres corn, one and one-half acres potatoes, one acre vegetables, all destroyed. Have lived there thirteen years. When the water of the river in time of flood got over its bank before the road was built, it passed through a place called a slough to a lake and thence to the river below. It is about one-fourth of a mile from river to railroad, about mile to lake and about two miles to river below. The slough was, in low places, three to four feet deep; in others, two to three feet and from fifty to 100 feet wide. It ran from the river east and was crossed by the embankment of the road running from north to south. There was no culvert in the road where it crossed the slough.

Cross-examined: Since 1863, the river overflowed its banks at the slough five times; has never overflowed the banks of the slough but twice, viz: in 1867 and 1873. In 1867, 1873 and in 1876, these years are the only times the river water has got in the slough as far as the road. In 1876 it did not get to plaintiff's land. It was one and a half or two feet deep in slough in 1876 at road. In thirteen years the water has only interfered with crops in the slough twice. When the road was made, a ditch was made along the road from the slough to Shane's, by taking earth for the embankment. Through this the water passed to Shane's land. The water in 1867 was three feet higher than in 1873. Water of 1867 overflowed Shane. Water of 1873 would not have overflowed Shane but for the railroad embankment.

Wagner, for plaintiff, testified: The slough starts from the river with high banks. Water is prevented from passing through it by the road. A culvert in the road at the slough would have carried the water into the lake and prevented its overflowing plaintiff's land.

Flint, for plaintiff, testified; Have lived within one hundred yards of Shane's land since 1865. Know what is spoken of as a slough. It is low ground near the river. It has no distinct banks. As it runs east the banks get higher. At the railroad the north bank is five feet higher than the lowest place. On the south side there is no distinct bank. In some places it seems nearly level; in others about one and a half feet, rising very gradually. It runs east from the river about one mile, and from the lake to the river again below. In 1873 the river overflowed its banks; water came through this low place to the railroad and nearer to plaintiff's land. But for the railroad the flood of 1873 would have passed on east and not have overflowed plaintiff. The water in the river in 1867 was three feet higher than in 1873. The water would have overflowed the banks of the river in 1876 but for an embankment erected by witness and others in 1875 and 1876.

On cross-examination Flint said: Have known the land since 1865. The river overflowed in 1867 and 1873. One other time since 1865, date forgotten, it got out, and part of the distance to the railroad. I yesterday made an examination of the ground with the engineer of defendant. There are several low places, one north of the one spoken of. The slough or lowest ground was in cultivation in 1873 and before that date. The crop in the slough was destroyed in 1873, and would have been in 1875 and 1876 but for embankment. That embankment was of dirt. This bank was highest at the river. The railroad was finished in 1869. There was no water in this low ground then. I think the land in the slough was cleared and inclosed on the east side of the railroad before the road was built. This was lower than on the west side, next the river. It has been in cultivation ever since. The water stayed so long on Shane's land because it had no outlet, his land being lower than adjacent lands.

Lewis, for defendant, testified: I am now employed by defendant as its engineer; have been engaged as a railroad engineer since 1866. A dirt bank is better and safer as a bed for a railroad than such a bank with a culvert or other opening, if such an opening can be dispensed with. The low place spoken of by the witnesses does not indicate, except in times of great floods in the Missouri River, any necessity for any culvert or opening in the road-bed for the passage of water. At the time of the construction of the road I was employed as an engineer by defendant, and had occasion to know the character of the low ground spoken of. The road at that place was built in the winter of 1868 and 1869. There was no water in this low place at that time. The place spoken as a slough is not wet land, but is merely low ground, its level varying as other low ground along the Missouri; it has no defined banks. I measured its levels yesterday. The ground is highest at the north side. The highest ground at the bank of the railroad is three feet five inches higher than the ground at a distance of 118 feet. Then going south 150 feet from this lowest point it rises gradually one foot eight and a half inches, thence south 100 feet it falls gradually one foot eleven inches, then south 250 feet it rises gradually one foot eight and a half inches, then 200 feet nearly west, thence 480 feet it continues with scarcely perceptible variations, finally attains a height of one foot two inches higher than last point, thence it falls gradually to plaintiff's land, 740 feet, where it is three feet lower than last point. In the whole distance of about 1,900 or 2,000 feet, the level only varies about three feet.

On cross-examination witness said: An embankment is considered safest without a culvert One reason is that culverts are liable to wash out when floods come, and drift wood and other debris may fill the culvert and injure it or the bank adjoining it. I cannot say whether it would have been more expensive to put a stone culvert into this embankment at the time it was built or to make the bank of dirt, because I do not know the relative cost of stone and earthwork at that time. All railroads have a large number of culverts. Two or three that I have built have washed out. I built one on the St. Joseph & Denver road at a place at which water appeared to have flowed, though I could not learn whether any great quantity of water had flowed there. I suppose this drain commenced about two miles from where the culvert was placed. I thought it necessary to put a culvert there. A flood afterward washed it...