Thompson v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 17 May 1909
• Citation: 119 S.W. 509,137 Mo. App. 62
• Parties: THOMPSON v. CHICAGO, M. & ST. P. RY. CO.
• Court: Missouri Court of Appeals

119 S.W. 509

137 Mo. App. 62

THOMPSON v. CHICAGO, M. & ST. P. RY. CO.

Kansas City Court of Appeals. Missouri.

May 17, 1909.

1. ADJOINING LANDOWNERS (§ 8)—USE OF LAND — IMPROVEMENTS — INJURIES TO ADJOINING PROPERTY—LIABILITY.

A landowner may improve his property in any lawful way, and is not liable for incidental injuries caused to adjoining property in doing so, if he does not use his own property so as to wantonly or negligently injure it.

2. WATERS AND WATER COURSES (§ 119)— SURFACE WATERS—LIABILITY OF RAILROAD COMPANY.

The duties of a railroad company in improving its property, and its liability for injuries caused by diverting surface water in doing so, are measured by the same rules that apply to an individual owner.

3. WATERS AND WATER COURSES (§ 119)— SURFACE WATERS—DISCHARGE—LIABILITY OF RAILROAD COMPANY.

Surface water is a common enemy which every owner must fight as best he may, and an owner is not liable for injury caused by the diversion of surface water incidental to the improvement of his land, the rule forbidding the dominant owner from collecting and precipitating large quantities of water on adjoining land not applying unless the diversion was wanton or reckless, so that a railroad company would not be liable for injuries caused by diverting waters upon adjoining land by putting in switches in the usual way on its own land which necessarily changed the surface so as to divert the surface water; the adjoining owner being bound to protect his land from such result.

Appeal from Circuit Court, Jackson County; Henry L. McCune, Judge.

Action by Hugh E. Thompson against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Frank Hagerman and Kimbrough Stone, for appellant. Edw. D. Ellison and Rees Turpin, for respondent.

JOHNSON, J.

This is a suit to recover damages alleged to have been caused by the wrongful diversion of surface water. Verdict and judgment were for plaintiff in the sum of $700, and the cause is here on the appeal of defendant. The injury occurred September 9, 1903. Plaintiff owned lot 4, block 9, Depot addition to Kansas City. The lot is in the West Bottoms, has a frontage of 40 feet on Liberty street, extends west from that street 126½ feet to the alley, and was covered by a two-story brick business house which plaintiff used as a warehouse. The lot adjoining on the south (lot 5) was owned by a stranger to this suit, and had a small dwelling house on the east end facing Liberty street. The land immediately south of lot 5, and between Liberty street and the alley, was owned by defendant. This tract, which was about 900 feet long (north and south) and 126½ feet wide, had been acquired by defendant for the purpose of constructing thereon a freight depot and auxiliary railroad tracks. The lands described are on a plain, level in appearance, but which slightly declines towards the north, so that in its natural state the drainage of surface water from defendant's tract was towards the lot owned by plaintiff. At the time defendant purchased it the land was divided into lots fronting on Liberty street. Most of these lots had small dwellings on them, and division fences and other improvements had obstructed the natural flow of surface water and drained it from each lot either into Liberty street on the east or into the alley on the west. Defendant removed these houses and improvements, roughly leveled the surface of the whole tract, and then built a freight house, 300 feet long (north and south) by 40 feet wide, the north end of which was 30 feet south of the south line of lot 5, and the east wall 10 feet west of the west line of Liberty street. Defendant also built four switch tracks west of this building. Three of them were placed as close together as practicable, but the fourth was laid 31 feet west of the third, in order to leave a space for the use of truck and other freight wagons, and it was the intention of defendant, afterward carried out, to pave the space between the third and fourth tracks, but this had not been done at the time of the injury, for the reason that the construction of the improvements had not been completed, but was still in progress. The switch tracks had all been laid and surfaced. They were about 600 feet long, and ended at the north end of the depot building. The spaces between them were lower than the tracks, and as the event demonstrated, these spaces, particularly that between tracks 3 and 4, served as water courses which drained to the north all the surface water that fell on the area between the street and alley and between a point 30 feet south of lot 5 and a point about 600 feet south thereof. We copy here a plat of the ground which will aid in making the situation plain.

An unusually severe rainstorm began early in the morning of the day of the injury, and continued more than 17 hours. Almost five inches of water fell; the heaviest precipitation occurring during an hour in mid-afternoon. A large volume of water ran down the space between the third and fourth tracks, crossed lot 5, and threw itself against the south wall of plaintiff's building, with

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

the result that a large part of the wall fell during the night. This suit is for the recovery of the resultant damages to plaintiff. It is alleged in the petition: "That during...