State v. Allen

• Citation: 267 S.W. 900
• Decision Date: 19 December 1924
• Docket Number: No. 24834.,24834.
• Parties: STATE ex rel. MISSOURI PAC. R. CO. v. ALLEN et al., Judges.
• Court: Missouri Supreme Court

267 S.W. 900

STATE ex rel. MISSOURI PAC. R. CO. v. ALLEN et al., Judges.

No. 24834.

Supreme Court of Missouri, Division No. 1.

December 19, 1924.

Original certiorari by the State, on the relation of the Missouri Pacific Railroad Company, against William H. Allen and others, Judges of the St. Louis Court of Appeals, to review the decision of the Court of Appeals (251 S. W. 744), affirming a judgment for plaintiff in the case of the Mill Creek, Fredericktown, and Mine La Motte Special Road District v. Missouri Pacific Railroad Company. On motion to quash writ. Writ quashed.

Jas. F. Green, of St. Louis, and W. E. Russell, of Charleston, for relator.

Davis, Damron & Davis, of Fredericktown, for respondents.

Statement.

WOODSON, J.

This is a proceeding by certiorari instituted in this court against the St. Louis Court of Appeals, requesting it to send up to this court the record in the case of Mill Creek, Fredericktown, and Mine La Motte Special Road District, the plaintiff, and the Missouri Pacific Railroad Company, the defendant. It was out of that case these proceedings grew.

The rulings set forth in the opinion of the Court of Appeals are alleged to be in conflict with the last and controlling opinions of this court, but we think counsel for relator, in that respect, are mistaken, as appears by reading the opinion.

In that case, the plaintiff sought to recover damages from the defendant for the alleged negligent maintenance of a certain culvert under its roadbed, placed there by the Director General of Railroads during federal control of the railroads, which wrongfully caused the waters of a natural water course to be diverted from its natural course and channel and wrongfully caused large quantities of surface water to be collected in artificial ditches and drains, and wrongfully caused waters from said stream and ditches to be precipitated through said culvert against the roadbed of the plaintiff's highway, and wash the same away to its damage in the sum of $500.

The trial in the circuit court resulted in a judgment for the plaintiff for $400, which was duly appealed to the Court of Appeals, and by that court duly affirmed. On account of that judgment these proceedings were begun in this court.

When this case was first argued and submitted to this court, I was the only member who was of the opinion that the judgment of the Court of Appeals should be quashed, but upon a full investigation of the record and authorities I changed my mind, and have concluded that the opinion of the Court of Appeals was rights and have adopted it as my opinion, as the opinion of this court in this case. This course requires the presentation of the petition, answer, and opinion of that court.

Petition.—Plaintiff states and avers that now and at all times herein mentioned it is, and was, organized and incorporated as a special road district in Madison county, Mo., under the authority and provisions of article 6, chapter 102, of the Revised Statutes of Missouri of 1909, and amendments thereto, with the right and capacity to sue and be sued as such, and that the defendant is, and was, a railroad corporation, having a line of railroad in and through said Madison county, and a station office, and agent therein, for the transaction of its usual business as a common carrier.

The plaintiff, for its cause of action against the defendant, states and avers that at all times herein mentioned the plaintiff had and maintained a public road and high-way in said Madison county, leading from Fredericktown to the eastern part of said county, and that defendant owns and maintains, as a common carrier, a right of way and line of railroad in and through said county, which, at a point about one mile east of Frederiatown, lies adjacent to and on the north side of said public road and highway of plaintiff, and parallel with it.

Plaintiff further says that at said point the defendant maintains a high grade or dump, on which its tracks are laid, and that it has constructed and maintains artificial ditches and drains leading east and west from said point, along the north side of said dump or grade, for the purpose of collecting a large volume of surface water, which flows down from higher areas thereabout.

Plaintiff further states that there was, and is, a natural water course and stream flowing from north to south at said point, over which said railroad dump or grade of defendant is constructed and maintained, and over which said public road and highway is also constructed and maintained. That, by means of a large stone culvert, which defendant, or the prior owners of its railroad, constructed, and which defendant maintains, and by means of a much larger concrete culvert, constructed and maintained by, plaintiff immediately south of, in line with, and adjacent to, said culvert of defendant, the waters of said natural stream, as well as the surface waters collected by said artificial ditches and drains of defendant, were allowed to pass under said railroad dump and public road, in the natural channel of said stream to its junction with Saline creek, some 50 yards south of said culverts.

Plaintiff further states and avers that the stone culvert aforesaid, which was so constructed by defendant, or the prior owners of defendant's railroad, and which defendant continues to maintain, proved inadequate in size at times of excessive rainfall to allow said waters to pass into and through said culvert of plaintiff, under its public road and highway, and to follow the natural course and, channel of said stream to said Saline creek, all of which plaintiff avers would have been the result had defendant's said' stone culvert been sufficiently large.

That during the year 1919, while the said railroad, and the operation and maintenance thereof, were under control of the Director General of Railroads for the government of the United States, said Director General and the defendant herein undertook to remedy the obstruction to the flow of said waters, caused by said inadequate culvert, and unmindful of their duties to plaintiff, constructed, or caused to be constructed, a second and larger culvert under said railroad dump and grade, a few feet west of said stone culvert, and east of the natural course and channel of said stream, thereby diverting said stream from its natural course and channel, and causing the waters thereof, as well as a large quantity of said surface water, which was collected in said artificial ditches along the side of said railroad, and emptied into said larger culvert, all in a concentrated stream and volume, to be cast against, upon, and over the right of way and public road of plaintiff.

That, after said railroad and the control and maintenance thereof had been relinquished by said Director General and the government of the United States to the defendant herein, which occurred in the last days of March, 1920, the defendant continued to maintain said second and larger culvert under its said railroad dump, and continued to maintain said artificial ditches and drains for the collection of said surface water along the sides of defendant's said railroad, and, while so maintaining said culvert and ditches, as aforesaid and described, during the months of March, April, and May, 1920, the defendant,' by the means and in the manner aforesaid, wrongfully caused the waters of said stream to be diverted from its natural course and channel, and wrongfully caused large quantities of said surface water to be collected in said artificial ditches and drains, and wrongfully caused said waters from both said stream and said ditches to be precipitated through said second larger culvert of defendant, and cast in a concentrated volume and stream, with great force, against, upon, and over the right of way and roadbed of the plaintiff, resulting in great damage and injury to the same, by washing large gullies and ditches therein and across the same, and by carrying off and washing away the materials with which said road was constructed.

That plaintiff was greatly damaged by the wrongful acts of defendant as aforesaid, and put to great expense in repairing its said right of way and public road, and, in order to save said road from further and like injury from such waters coming through said second culvert of defendant and upon its said property, the plaintiff was compelled to construct, and has constructed, a large and additional concrete culvert immediately south of, in line with, and adjacent to the said culvert of defendant, through which said waters were diverted and carried, so as to bring the opening of its said culvert under its said road in line with the opening of the defendant's said second culvert, whereby said waters may be allowed to pass through and under plaintiff's said road and property without obstruction, and without damage and injury to plaintiff's said property.

That the construction of said additional culvert cost the plaintiff the sum of $375.00, and that it was necessary and is necessary to the preservation of the plaintiff's said property, owing to the wrongful acts of defendant as aforesaid. That, together with the cost of the construction of said additional culvert and the repair of said right of way and public road, caused and required by the wrongful acts of defendant, as aforestated, plaintiff has been compelled to lay out and expend the sum of $500, and is damaged in that sum by reason of the wrongful acts of defendant, as aforesaid.

Wherefore plaintiff prays judgment against defendant for the sum of $500 and for the costs of this suit.

Answer.—The answer in said cause was a general denial.

In due course of law and time, said cause was heard in the St. Louis Court of Appeals, and the following opinion handed down, written by respondent Daues, and concurred in by his corespondents, Allen and Becker:

"Opinion.

"Daues, J.

This is an action to recover certain sums of money expended by plaintiff on a public road which,...