Smithpeter v. Wabash R. Co., 41022

CourtUnited States State Supreme Court of Missouri
Writing for the CourtCONKLING
Citation231 S.W.2d 135,360 Mo. 835
Parties, 19 A.L.R.2d 950 SMITHPETER et al. v. WABASH R. CO.
Docket NumberNo. 41022,41022
Decision Date13 June 1950

Page 135

231 S.W.2d 135
360 Mo. 835, 19 A.L.R.2d 950
No. 41022.
Supreme Court of Missouri, en Banc.
June 13, 1950.
Rehearing Denied July 10, 1950.

[360 Mo. 836]

Page 137

J. H. Miller, St. Louis, Graham & Stipp, Carrollton, Sam B. Sebree, Sebree, Shook, Hardy & Hunter, all of Kansas City, for appellant.

[360 Mo. 838] Joe H. Miller, Carrollton, D. D. Thomas, Jr., Carrollton, George H. Miller, Sedalia, for respondents.

[360 Mo. 840] CONKLING, Judge.

In their consolidated action in twenty-five counts for damages for alleged destruction or damage to their crops by flood waters, in alleged violation by the railroad of Sec. 5222, both Mo.R.S., 1939, and Mo.R.S.A., plaintiffs-respondents recovered a judgment aggregating $20,585.40. The defendant Wabash Railroad Company appealed.

The appeal was first heard in Division Two of this court. That division, in an opinion prepared by Commissioner West

Page 138

hues, affirmed the circuit court's judgment. The railroad's motion for rehearing was overruled, but its motion to transfer the cause to the court en banc was sustained. The appeal was thereafter heard before the court en banc, and the opinion of Division 2 was adopted as the opinion of the court en banc. The Wabash again filed a motion for rehearing. That motion was sustained and the appeal was again heard upon reargument before the entire court. The cause was thereupon re-assigned for the preparation of a new opinion. Without quotation marks portions of the divisional opinion are herein used. For reasons hereinafter stated we again affirm the circuit court's judgment.

Plaintiffs are landowners and tenants of land situated in Drainage District No. 3 of Carroll County, Missouri. The Wabash roadbed involved here runs in a general easterly and westerly direction through that drainage district and across Carroll County. Just east of the town of Wakenda, the railroad roadbed for some miles is constructed upon an earthen embankment. The lands in question here are in the flood plain of the Missouri River (flowing about a mile south of the railroad) and also in the flood plain of Wakenda Creek. The natural land drainage is toward the southeast. Wakenda Creek (a large, natural, flowing watercourse) enters Carroll County on the west county line (from Ray County) and runs in a general southeasterly direction for some miles. North of the town of Wakenda that creek is substantially parallel to and about a mile north of the Wabash tracks. About three miles northeast of the town of Wakenda, Wakenda Creek turns south and flows under the railroad tracks under Wabash [360 Mo. 841] bridge numbered 516, and thence flows on south and east into the Missouri River, a mile or so away. The maps filed as exhibits, show that between a point due north of Wakenda, Missouri, and Bridge 516, a number of sloughs and farmers lateral ditches, all draining nearby land, empty into the Wakenda watercourse. Bridge 516 is the only opening under the railroad tracks through which the natural drainage, including surface water, which naturally follows down the Wakenda watercourse could reach the south side of the railroad embankment, and eventually reach the Missouri River. All of the land involved is drained by the Wakenda. In all, Wakenda Creek drains an area of 245,350 acres. The county engineer testified that the necessary areaway for the passage of water from that watershed under the tracks at Bridge 516 is 4270 square feet. According to defendant's evidence the opening under Bridge 516 was 2316 square feet. Plaintiff's proof was that this opening was about 2,000 square feet. Plaintiff's evidence showed that if there had been no levees an opening of at least 4,000 square feet under Bridge 516 was required to take care of the waters in the Wakenda which could reasonably be expected to come down that watercourse in periods of heavy rainfall.

The Wabash Railroad was originally constructed across Carroll County about the year 1885; the track was built on an embankment across the bottom land here involved, and a bridge was built over Wakenda Creek. In the year 1903, a new bridge, the present structure (Bridge 516) was built. It is the opening under this 1903 bridge, of which complaint is here made. The bridge which existed there before 1903 had long trestles on either side of the main span. The bridge engineer of defendant testified that the 1903 bridge has two per cent less area under it for the passage of water than did the prior structure. The former bridge was longer than the present Bridge 516. When the new bridge was built in 1903 the trestle work at each end of the old bridge was filled in to make solid embankment. Thereafter floods occurred.

The petition alleged that 'this opening under Bridge No. 516 was the only opening made by the defendant for the escape of natural drainage and surface flood waters following said natural watercourse (Wakenda Creek) * * * into the natural channel and flood water course below said bridge', etc. It is further therein alleged, 'that the opening underneath said bridge was made too small and wholly inadequate to carry the natural drainage and surface flood waters that could reasonably be expected

Page 139

to follow said natural watercourse'; and that, 'defendant has violated and failed to comply with Sec. 5222, Mo.R.S., 1939, Mo.R.S.A., * * * in failing to construct and maintain suitable openings across its roadbed and right-of-way (under its track) as a sufficient outlet to allow the passage of natural drainage and surface flood waters of said natural watercourse', etc. Plaintiffs' petition also alleged that the opening under [360 Mo. 842] Bridge 516 being too small, caused flood waters to back up on plaintiffs' lands and damage or destroy their crops in 1942 and 1945, because the flood waters of the Wakenda were held back by the embankment and the girders of Bridge 516, thus causing the levees to break upstream from the bridge and the flood waters to flood their lands and damage their crops.

At the times in question here Wakenda Creek, just above Bridge 516, was 100 feet wide from bank to bank; Bridge 516 was 160 feet wide and the bottom of its lower girders were about 6 feet above the top of the Wakenda Creek banks; extending some miles north and west upstream, one on the east side of Wakenda Creek and one on the west side, and 400 feet apart, were drainage district levees (placed there after the Drainage District was organized in 1906) the tops of which levees were about six feet above the banks of Wakenda Creek; these levees tied into the north side of the railroad embankment about 18 inches below the rails of the railroad track. Just downstream from Bridge 516 there was also a levee on the west side of Wakenda Creek, but there was none on the east side of the creek. In these periods of heavy rainfall (in 1942 and 1945) Wakenda Creek was overflowing and the waters were up against the sides of the levees. At Bridge 516 the water was so high it was flowing against the bottom girders on both the upstream side and the downstream side of the bridge. The water was 18 to 24 inches higher on the bridge girder on the upstream side of Bridge 516 than it was on the downstream side. Below the bridge the creek bed proper was 100 feet wide. There was testimony that in each flood year at the time of the flood the water below the bridge was within 18 inches of the top of the west levee, and was flowing over the lands which lay east of Wakenda Creek. There was also testimony, however, that below Bridge 516, at the time of these floods, Wakenda Creek was not even bank full, and was not overflowing the land lying east of the Creek. Those conflicts in the evidence, the jury resolved in favor of plaintiffs. During one of these floods here in question, Wabash employees on the bridge used poles to force under the bridge the driftwood which had collected against the upstream girder of Bridge 516. A number of plaintiffs testified that in each of these two flood years, when the water reached and flowed against the girders under the bridge, the water in the Wakenda watercourse backed up, the levees broke a half mile to a mile upstream and the waters flooded out their crops. There was a strong current in the Wakenda under the bridge each time the levees broke.

One plaintiff, Dale Williams, testified that, 'when the creek started to raise, we began patrolling the levees. We would walk up and down the levee to see if we could observe any leaks * * * seepage or anything * * * we could hold the levees providing it (the water) never touched the beams on the railroad (Bridge 516). That was always our fear but when it got against those beams it was a matter [360 Mo. 843] of a few hours until it overflowed the top of the levees. * * * The more water that piled against those girders, the more it pushed back upstream. * * * It (the water) raised fast when it started hitting that bridge * * * you could tell a difference in the raise of water. It came on us and piled fast.' There was abundant evidence that during these flood periods (June, 1942 and May, 1945) the water in the Wakenda watercourse piled up against the upstream side of Bridge 516, and that it could not get through under that bridge because the opening thereunder was too small and was not suitable to afford a sufficient outlet; that the water was much higher against the upstream girder than it was below the bridge measured against the downstream girder; that the water did not break over or through the levee until it was flowing through and using all the usable space below the bridge; that the beam or girder of the

Page 140

bridge held the water north of the bridge, raised the level of the water between the levees back upstream causing the water to overflow the levees, and causing the levees to break and let the water through to the damage of plaintiffs' crops.

Defendant's bridge engineer, C. J. Johnson, was asked: 'Do you mean to...

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