St. Louis, I. M. & S. Ry. Co. v. Schneider

• Decision Date: 24 April 1888
• Citation: 30 Mo.App. 620
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant, v. W. G. SCHNEIDER et al., Respondents.
• Court: Missouri Court of Appeals

30 Mo.App. 620

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant, v. W. G. SCHNEIDER et al., Respondents.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the Cape Girardeau Circuit Court, HON. H. C O'BRYAN, Judge.

Affirmed.

GEO. H BENTON, for the appellant: The Thumb was a natural water-course and appellant had the right to have it continue to flow ubi currere solebat. Wood on Nuisances, sec 336; Gardner v. Village, 2 Johns. Ch. 162; Shields v. Arndt, 3 Green's Ch. (N. J.) 234; Angell on Water-Courses, 1, 5, and note; Jones v. Railroad, 18 Mo.App. 251; Benson v. Railroad, 78 Mo. 504; Hosher v. Railroad, 60 Mo. 329; Munkers v. Railroad, 60 Mo. 334; Mangold v. Railroad, 24 Mo.App. 59. No one, not even municipal corporations, have the right to obstruct the flow of an ordinary water-course by building anything which in times of ordinary flood will throw the water on the grounds of another. Angell on Water-Courses, sec. 465 b; Wood on Nuisances, sec. 350; Genish v. Clough, 48 N.H. 9; Dubach v. Railroad, 89 Mo. 483; Sugar Co. v. Elevator Co., 82 Mo. 124; Abbott v. Railroad, 83 Mo. 271; Brink v. Railroad, 17 Mo.App. 177; Myers v. City, 82 Mo. 367; S. C., 8 Mo.App. 266. The court erred in the instructions given to the jury on the measure of damages after temporary injunction was dissolved.

W. H. MILLER and CRAMER & CRAMER, for the respondents: The testimony shows that the obstruction complained of was effectually and substantially completed before the institution of this suit. It came too late. Towne v. Bowers, 81 Mo. 491. The testimony shows, and the court so found, that the Thumb was simply a break in the bank of Whitewater, and not a natural water-course, as the appellant contends. The evidence shows no special damage sustained by appellant. The county court was in the exercise of its proper and legitimate functions, and cannot be enjoined. 3 Wait's Act. and Def., p. 749, sec. 3. Nor will an injunction be granted because of the mere apprehension of the petitioner that a wrong may be done. So a party seeking an injunction must show a particular injury distinct from what he suffers in common with the public. 3 Wait's Act. and Def., p. 689, sec. 13.

OPINION

ROMBAUER P. J.

The plaintiff, anterior to the date of the grievance herein complained of, had constructed a railroad bank running southwardly for a distance of twenty-five miles and more in the valley of the Whitewater. The Whitewater is a stream of perpetual flow, draining a large area of country, and is about two hundred feet wide. At a certain point in its course a slough or bayou runs out of it eastwardly nearly at right angles, which slough, at its junction with the Whitewater, has a width of about one hundred and fifty feet, and a well-defined channel and banks for a distance of from four hundred to six hundred feet, and no more. This slough or bayou is known as the Thumb. The Thumb is not shown to be fed by any living springs, but in high water the waters of the Whitewater find a partial outlet through it, running through its defined channel for the distance above stated, and then spreading out through the timber and over the surrounding country without any defined channel. Across the Thumb and about one hundred and fifty feet from the eastern bank of the Whitewater, the plaintiff had on the line of its railroad constructed a truss bridge, resting on abutments. Thereafter, in the year 1886, part of defendants, who are county judges of Cape Girardeau, contracted on behalf of the county with the other defendants, to erect as part of a county road a solid embankment across the Thumb at the point of its junction with the Whitewater. The defendant contractors entered upon the performance of this work and had nearly completed it when the plaintiff sued out a writ of injunction in this proceeding.

The annexed map which is in evidence shows the relative positions of these structures.

The plaintiff's petition or bill rests for its support upon the fact that the closing of the mouth of the Thumb, which it claimed to be a natural water-course, unavoidably raises the waters of the Whitewater in times of freshets, both below and above the mouth of the Thumb, and thereby endangers its railroad bank, which is built for a considerable distance in proximity of the Whitewater.

The court granted a temporary restraining order, but upon final hearing, the above facts appearing, dissolved the injunction and dismissed the bill. This action is complained of as error.

We see no error in this. The court was warranted in finding under the evidence that the Thumb was not a natural water-course, and that of itself was sufficient to warrant the decree rendered.

Justice Bigelow, in Luther v. Winnisimmet Co., 9 Cush. 174, defines a water-course as " a stream of water usually flowing in a definite channel, having a bed or sides or banks, and usually discharging itself into some other stream or body of water." It must be more than a mere surface drainage over the entire face of a tract of land occasioned by unusual freshets or other extraordinary causes. This definition was almost literally adopted by the Supreme Court of Wisconsin in Hoyt v. City of Hudson, 27 Wis. 661, and subsequently by the Supreme Court of this state in Benson v. Railroad, 78 Mo. 504. In Jones v. Railroad, 18 Mo.App. 253, 256, the Kansas City Court of Appeals, citing these cases, held that, " certain swales or sloughs which were filled in time of freshets by the overflow of a stream" were not water-courses so as to subject a railroad company to an action for damages caused by closing their outlet with a solid bank.

In McCormick v. Railroad, 57 Mo. 437, re-affirmed in Abbott v. Railroad, 83 Mo. 271, it was held that an owner may improve his lands for any desirable enjoyment, and it makes no difference that the effect of such improvement is to change the flow of the surface water accumulating thereon or falling on the surrounding country, so as to either increase or diminish the quantity of water which has previously flowed upon the land of the...