Snow v. Thompson, 20155.
| Decision Date | 31 January 1944 |
| Docket Number | No. 20155.,20155. |
| Parties | SNOW v. THOMPSON. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.
"Not to be published in State Reports."
Action by Nellie Snow against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover for damages to growing crops. Judgment for plaintiff, and defendant appeals.
Affirmed.
Thomas J. Cole, of St. Louis, D. C. Chastain, of Kansas City, and L. J. Bishop, of Butler (Patterson, Chastain & Smith, of Kansas City, of counsel), for appellant.
W. S. McClintock, A. L. Quant, and Orie V. Melching, all of Kansas City, for respondent.
BOYER, Commissioner.
This is an appeal from a judgment in favor of plaintiff who sought recovery for damages to growing crops during the years 1937, 1938, 1939 and 1940. The alleged facts bring the cause of action within the scope of Sec. 5222, R.S.Mo.1939, Mo. R.S.A. The petition appropriately describes the corporate character of the railroad and the operation of its business as a common carrier; that defendant Thompson was trustee operating said railroad since 1933 by virtue of orders of the Federal District Court for the Eastern District of Missouri in a reorganization proceeding under the National Bankruptcy Act: that the railroad company's line and right of way crosses the land in which plaintiff is interested in an easterly and westerly direction and that twenty-five acres of plaintiff's land lie adjacent to and south of the railroad line and right of way; that formerly there was a drain and drainage ditch located on the south side of the railroad and upon the right of way with suitable culverts and underpasses adequate to drain the surface water off the twenty-five acres into natural water courses; "that in the course of recent years such drainage ditch, culverts and underpasses on the Missouri Pacific Railroad right of way has become filled with dirt, undergrowth, stumps and other substances, and are no longer being maintained by such railroad company, or its trustee, as such drainage ditch, culverts and underpasses." The remainder of the petition is to the effect that failure to maintain adequate drains and ditches along the right of way as previously done caused water to be cast upon plaintiff's land resulting in damage to the growing crops of plaintiff and her sharecropper. The tenant assigned his claim to the plaintiff who sued for the total damage, setting forth a stated amount of loss claimed for each year.
The amended answer of defendant admits that the Missouri Pacific Railroad Company is a corporation as alleged in the petition, and that he is trustee of said company pursuant to appointment by the District Court of the United States for the Eastern District of Missouri. Other allegations of the petition are denied, and certain other pleas in the answer need not be noticed inasmuch as they are not pertinent to any question raised on appeal.
The points presented for consideration in brief and argument are (1) that there was no cause of action either pleaded or proved against the defendant as trustee of the railroad company under the Bankruptcy Act, and no right to maintain suit against defendant in the state court is shown; (2) that the trustee appointed by the bankruptcy court is not subject to the statute on which the plaintiff relies in the management of the estate, and it was error to submit the case to the jury; and (3) that the court erred in giving and refusing instructions.
A comparatively brief statement of the facts will suffice. The railroad was built in 1904 and 1905. It ran through the farm in which plaintiff owned a life estate and for a distance of approximately a quarter of a mile. The portion of the farm referred to as twenty-five acres, and where the crops were damaged, was immediately adjacent to the south side of the railroad right of way. In the construction of the road there were rather extensive borrow pits created on the right of way all the way through forming a ditch approximately four feet deep and eight feet wide. To accommodate crossings near the northeast corner and the northwest corner of the twenty-five acres, eighteen or twenty inch tile was placed in the ditch for a distance of about ten or twelve feet. The drainage ditch on the right of way leading westward discharged water through the tiling into another ditch extending north and south on the west side of the twenty-five acres and through an underpass of the railroad northwardly to natural water courses for final outlet. Such arrangement for drainage of surface water from plaintiff's land was adequate for a number of years and until the drainage ditch and the tiling became completely filled up and were no longer maintained. At one time the company cleaned out the ditch and its drainage system adjacent to plaintiff's land and it again proved satisfactory until about 1930 or 1932 when the ditches, drains and pipes again became completely filled and afforded no drainage whatever; but according to plaintiff's evidence by reason of the absence of such drainage facilities water was caused to accumulate and remain for an unusual length of time upon her land and caused the damage complained of. The tract of land in question was mainly low and flat, except a few acres in the southeast corner of higher elevation. The natural drainage of the tract was to the northwest according to the greater number of witnesses testifying upon the subject. There was some testimony that drainage was more to the north than to the west. Defendant's evidence tended to show that the drainage was to the west, except one witness who said it was to the northwest. Higher ground surrounded the twenty-five acre tract to the south and east and surface water from that territory found its way to the twenty-five acre tract and to the railroad right of way from which it was drained while the ditches and tiles were open, but after they were filled up the water was caused to gather in large quantity and remain an unusual length of time on plaintiff's land.
Plaintiff offered testimony showing the nature and character of crops seeded and grown during each of the years in question, and furnished facts and figures from which the difference in value of a normal crop and that which was actually harvested could be estimated. There was ample testimony that crops upon the land were damaged by the water being thrown or held upon the land for an unusual period of time for lack of adequate drainage on the right of way.
Defendant offered evidence to the effect that the land in question was low bottom land which had to be drained by opening furrows; that the tract was always wet; that the damage to the crops was due to heavy rains and water from the hills which was discharged upon the twenty-five acre tract. In behalf of defendant there was the testimony of a civil engineer who upon survey and taking levels made a blueprint showing the result of his work, which purports to show that the bank of the ditch on the south side of the railroad was at least one foot higher than the north part of the twenty-five acre tract. The elevations thus reported are generally that plaintiff's land was lower than the surface of the ditch at the time of the survey except in the southeast corner.
The evidence was such as to justify submission to the jury, and the verdict, unless plaintiff was legally debarred from the maintenance of her suit for some other reason urged by appellant. The first and second points urged by appellant are intermingled by the treatment accorded them in the brief. It is contended that plaintiff had no right to maintain her suit in the state court without alleging and proving the consent of the bankruptcy court to the prosecution of the case; and that a trustee in bankruptcy, in the management and control of a railroad while undergoing reorganization, is not subject to being sued in a state court on a cause of action based on the state statute requiring adequate ditches and...
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