St. Louis Merchants' Bridge Terminal Ry. Ass'n v. Schultz

• Decision Date: 18 April 1907
• Citation: St. Louis Merchants' Bridge Terminal Ry. Ass'n v. Schultz, 226 Ill. 409, 80 N.E. 879 (Ill. 1907)
• Parties: ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. ASS'N v. SCHULTZ.
• Court: Illinois Supreme Court

226 Ill. 409

80 N.E. 879

ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. ASS'N

v.SCHULTZ.

Supreme Court of Illinois.

Feb. 21, 1907.

Rehearing Denied April 18, 1907.

Appeal from Appellate Court, Fourth District.

Action by Johann Schultz against the St. Louis Merchants' Bridge Terminal Railway Association. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.B. H. Canby and Alex W. Hope, for appellant.

J. M. Bandy and D. J. Sullivan, for appellee.

SCOTT, C, J.

In the city court of East St. Louis appellee recovered a judgment against appellant for the sum of $999 for damages occasioned by the flooding of farm land, resulting, as he contends, from a grade constructed by appellant which wrongfully interfered with the natural course of drainage. That judgment has been affirmed by the Appellate Court for the Fourth District, and, a certificate of importance having been allowed, the cause comes to this court by appeal.

A tract of land known as ‘Carr Island’ lies along the Mississippi river, in St. Clair county. This so-called island is separated from the mainland by a depression or slough, known as ‘Carr slough,’ which at a time of high water, in a state of nature, becomes an arm of the Mississippi river, water from the river flowing into it at the north end and emptying out of it at the south end into the river. It also carries away surface water falling east of it and surface water falling on the eastern portion of Carr Island. The amount of surface water which it so carries, however, has been very much lessened by the construction of a railroad grade running in a northerly and southerly direction east of it, which prevents the surface water falling east of that grade from running into Carr slough. The natural drainage into the slough from the west is also interfered with by a levee constructed along the east side of Carr Island, to which reference will be hereafter made. Appellant owns a bridge across the Mississippi river at St. Louis, the eastern end of which is located on Carr Island and the eastern approach to which, also owned by appellant, passes over Carr slough. That approach was originally a trestle work, but in the winter of 1896-97 appellant placed a solid earthen embankment under its track across Carr slough and across Carr Island to the bridge. Where this embankment crosses the slough, it is about 200 feet wide at the base and about 25 feet wide at the top. No opening for drainage was left, and the embankment entirely closed Carr slough so that no water could pass. North of the bridge Carr Island was used for agricultural purposes. The bank of the river on the west of the island is higher and more abrupt than the bank of the slough on the east of the island, and the owners of land on the island north of the bridge had constructed a levee along the eastern side of the island just west of Carrslough, and elsewhere on the island north of the bridge, of a height sufficient to keep the water in Carr slough off of their lands until the water was so high that it would flow over the bank of the river on the west. South of appellant's bridge the island was lower, and at various times there had been three obstructions across Carr slough south of the bridge. One was a railroad embankment; another was a public highway known as the ‘National Way’; and a third was a fill near an elevator. Since 1892, however, there had been openings, from 60 to 80 feet long, in the old railroad embankment and in the National Way, where they cross the slough; and the evidence of appellee tends to show that at the time of the high water which resulted in the damage for which suit was brought there was a large opening, 3 or 4 feet square, leading through the fill near the elevator, which had been there ever since the fill was put in, while appellant's contention is that the opening had been closed up by its walls and the earth breaking in. Whether or not appellant is correct in this it seems to be a matter of indifference for this reason: Carr Island north of these obstructions and south of appellant's bridge is so much lower than the top of the levees and the river bank above the bridge that, when the river rises, it covers Carr Island north of the obstructions and south of the bridge long before the water in Carr slough could reach the top of the levees if its flow was not obstructed by the approach to the bridge, and under those conditions the slough would empty into the river south of the bridge at a point north of all the obstructions. In the spring of 1897 appellee was a farmer, engaged in cultivation land north of the bridge on Carr Island. In April of that year the water in the Mississippi river began to rise, and reached such a height that it flowed into the north end of Carr slough and south in that slough until it reached appellant's embankment, and by reason of that embankment, as is shown by witnesses for the appellee, the flow of the water was stopped and the water accumulated until it broke through the levee on the west side of Carr slough, about April 16th, inundated the land appellee was farming, entirely destroyed his growing crops and damaged the land he had prepared for corn. The water remained on the land until it was too late to put in other crops that year.

The ruling of the court in denying appellant's motion, made at the close of all the evidence, for a peremptory instruction is questioned.

The original declaration consisted of but one count, and was filed on October 7, 1898. The cause was continued from term to term, awaiting a final decision in another case growing out of the same circumstances. On October 22, 1904, appellee filed an additional count. Appellant demurred to both counts, and the demurrer was overruled. It then filed the general issue as to both counts, and interposed a plea of the statute of limitations as to the additional count. Appellee filed a replication traversing the averments of the special plea. Appellant contends that the original count stated no cause of action, and that the additional count, not having been filed until more than five years after the damages were sustained, was barred by the statute of...