South Side Realty Co. v. St. Louis & S. F. R. Co.

• Decision Date: 06 February 1911
• Parties: SOUTH SIDE REALTY CO. v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

134 S.W. 1034

154 Mo. A. 364

SOUTH SIDE REALTY CO. v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. APPEAL AND ERROR (§ 14) — CROSS-APPEALS.

Where a cross-appeal is taken, the parties may file a joint bill of exceptions and have their transcript prepared bringing up all the exceptions, or they may file separate bills of exceptions in the trial court, and each party may prepare an abstract to be filed in the Appellate Court, but where neither of these courses is pursued and there is no separate abstract of record and no bill of exceptions prepared or filed by the respondent, though he obtained leave to file a bill of exceptions, the cross-appeal was not perfected and will be dismissed.

2. RAILROADS (§ 113) — FRANCHISES — BRIDGES — NEGLIGENCE.

Where a railroad constructs a bridge, it must use ordinary care not to injure the rights of owners of adjacent property.

3. WATERS AND WATER COURSES (§ 171) — INTERFERENCE WITH — NUISANCE.

No one can materially interfere with the waters of running streams, so as to invade the rights of others, any such interference being per se a nuisance.

4. WATERS AND WATER COURSES (§ 171) — INTERFERENCE WITH.

Under Rev. St. 1909, § 3049, permitting railroad companies to build bridges across streams in construction of their road, but requiring them to restore the stream or water course to its former state, or to such state as not unnecessarily to impair its usefulness, a railroad company constructing its road over a water course is bound to leave waterways or openings sufficient as an outlet for all water that may reasonably be expected to flow through such water course, taking into consideration such freshets as might reasonably be expected to occur, in view of the size of the stream, its carrying capacity, and the character of the country contributing to its flow, but it is not liable for failing to provide for a flood which is not only extraordinary, but unprecedented, and could not reasonably have been foreseen.

5. WATERS AND WATER COURSES (§ 171) — RAILROAD BRIDGES — ANTICIPATING FLOODS.

If at the time of the construction of a railroad bridge over a water course extraordinary inundations have occurred within the memory of men then living, their recurrence should be anticipated and provided against.

6. WATERS AND WATER COURSES (§ 179) — OBSTRUCTION — FLOOD WATERS — BRIDGES — LIABILITY.

In an action against a railroad for damages caused by the obstruction of a stream by placing a heavy iron girder across it impeding the flow of the water during heavy rainfall, thereby flooding plaintiff's land, evidence held to present a question for the jury whether the rainfall preceding the flood was so unusual and unprecedented that it could not have been reasonably anticipated and guarded against.

7. NEGLIGENCE (§ 61) — ACT OF GOD — CONTRIBUTIVE ACTS.

If the defendant's negligence commingled with and operated as a contributive element proximate to the injury, it is liable, even though such injury was due to an act of God.

8. WATERS AND WATER COURSES (§ 171) — OBSTRUCTION — INJURY — LIABILITY.

Where a railroad company, on complaint that its bridge over a stream was an obstruction to the escape of flood water, promised to remedy the difficulty, and altered the bridge, but did not remove the chief obstruction, an iron girder resting on piling, except to move it from under the bridge and leave it still spanning the stream as before, the railroad was liable for injuries to adjoining lands by floods which otherwise might have passed under the bridge.

9. WATERS AND WATER COURSES (§ 178) — OBSTRUCTION — DAMAGES — EVIDENCE.

In an action for damages to land by flooding caused by the obstruction of a stream, evidence held insufficient to sustain a finding of $1,000 as the amount of damages to the sale of the property by the flood.

10. DAMAGES (§ 20) — GROUNDS — TORTS.

A wrongdoer is liable for all injuries directly resulting from the wrongful act, whether or not they could have been foreseen by him, if they are the legal and natural consequence of the wrongful act and are such as, by common experience and in the usual course of events, might reasonably have been expected.

11. WATERS AND WATER COURSES (§ 178) — FLOODING LANDS — DAMAGES.

The measure of damages to land by flooding is the difference in the value of the land itself before and after the injury, and the value of improvements injured or destroyed, such value being measured by the amount required to

restore the premises to their original condition, and if the injury to houses or other improvements has interfered with the beneficial enjoyment of the premises, the rental value while restoring the improvements may be recovered.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

Action by the South Side Realty Company against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action commenced in Cape Girardeau county for damages caused by three successive overflows of Cape La Croix creek. The claim of the petition is that the defendant maintained a bridge across this stream which dammed up the natural water course of the creek, causing the creek to overflow upon the plaintiff's land. The petition was in three counts, for three successive overflows. The jury found a verdict for the defendant on the first and second counts and for the plaintiff on the third count in the sum of $1,000, from which the defendant appealed to the St. Louis Court of Appeals. The cause was transferred to this court, and the parties have filed their briefs and argued the case, thus eliminating the question of jurisdiction.

The third count of the petition is, in part, as follows: "Plaintiff further states that said Cape La Croix creek drains a territory extending about ten miles northwest of said crossing; that it flows to the east and south from said crossing by winding course for a distance of five miles, when it empties into the Mississippi river; that at said crossing its direction is east and west, at right angles to the right of way, but that a quarter of a mile west of said crossing it verges to the northwest, and at a point opposite Sulphur Springs crossing is about a half a mile distant. Plaintiff further states that prior to the year 1907, the western railroad bridge of the defendant at the Cape La Croix crossing was supported by a massive iron girder, five feet wide by forty-six feet long, resting upon two bents of piling each sixteen inches thick and driven into the bed of the stream; that said girder extended down between the banks four and one-half feet and reached from bank to bank; that some time during the year 1907, the defendant commenced to alter said bridge and in so doing moved said girder out from under said bridge, but instead of removing the girder from the water course, neither lifted nor lowered it, but negligently left it relatively in the same position it formerly occupied in the water course, except that it stood at the eastern edge of the bridge and had wholly ceased to be a part of it or to furnish it any support or strength; and the defendant negligently wholly failed to remove said bents of piling, although, after the alteration was made, they wholly ceased to be any part of said bridge; that the said girder, after its removal, still reached from bank to bank, its upper edge lying almost level with the tops of the banks and its body extending down into the water course four and one-half feet; that said piling and said girder so placed constituted obstructions in said water course and when the water rose in the stream acted as a dam and held back the water; that they made the current of the stream, for a great distance above the bridge, much more sluggish and reduced the capacity of the water course to carry off the flood waters about one-half. Plaintiff states that on the ____ day of February, 1908, while the defendant was maintaining said obstructions, and by reason thereof, the waters of Cape La Croix creek were held back and flowed over its banks and on, over and across the premises of plaintiff, lying on both sides of the creek; that said waters washed the soil thereof and became confined and held back by the embankment of defendant, and remained standing on plaintiff's premises, to the great damage of plaintiff. And plaintiff charges that by reason thereof it has been hindered and delayed in the use, improvement, rental and sale of said premises; that it will be put to great expense in restoring the soil washed away by the water; that it was put to expense in endeavoring to protect the premises from further overflows, to the additional damage of the plaintiff in the sum of $1,000, for which sum it also prays judgment."

The answer was, besides a general denial, a plea that, if plaintiff was damaged at all, such damage was the result of an unusual flood in the stream mentioned, and that the defendant incurred no liability therefor. The first flood occurred on November 17, 1906, the second about December 27, 1906, and the third about February 14 or 15, 1908.

The evidence tended to show that plaintiff, South Side Realty Company, became the owner of the premises, which it claimed was damaged, about July, 1906. The property extended along the west side of defendant's railroad and the Scott county gravel road for a distance of 900 feet north of the creek and something like 400 or 500 feet south of it. The plaintiff corporation was organized for the purpose of buying and selling real estate, erecting hotels, halls, and other buildings, and to purchase, own and rent buildings, in the city and county of Cape Girardeau. After it became the owner of the premises in question, it subdivided it into blocks and lots — 5 blocks and 91 lots. The defendant's railroad paralleled the property on the east. The railroad, after leaving the city of Cape Girardeau, runs in a southwesterly...