Vanlandingham v. Quincy, O. & K. C. Ry. Co.

• Decision Date: 11 November 1918
• Docket Number: No. 12774.,12774.
• Citation: 206 S.W. 399
• Court: Missouri Court of Appeals
• Parties: VANLANDINGHAM et al. v. QUINCY, O. & K. C. RY. CO.

206 S.W. 399

VANLANDINGHAM et al. v. QUINCY, O. & K. C. RY. CO.

No. 12774.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Adair County; Chas. D. Stewart, Judge.

"Not to be officially published."

Action by F. M. Vanlandingham and others against the Quincy, Omaha & Kansas City Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

J. G. Trimble, of Kansas City, and Campbell & Ellison, of Kirksville, for appellant. S. W. Mills, of Kirksville, for respondents.

ELLISON, P. J.

This action is based on section 3150, R. S. 1909, requiring railroad companies to open ways under their roadbed, and to construct ditches along the sides of their tracks to connect with other drains or water courses. It is charged that plaintiff owns a farm in the vicinity of the Chariton river which frequently overflows its banks and runs over lands in the surrounding country; that originally defendant constructed its road over the bottom lands of the Chariton river at the places now complained of by trestlework which allowed the overflow waters from such river to pass through under the track of its railway; that afterwards defendant filled in under such trestle work with a solid bed of earth, which operated as a dam for the waters which overflowed from the Chariton river, and backed such water up and over plaintiff's land, destroying his crops.

The judgment should have been for defendant. The case falls directly under the decision of the Supreme Court in Goll v. Railroad, 271 Mo. 655, 197 S. W. 244. It was there decided that a railway company has a right to fill in with earth where a trestle had been, even though it causes surface water to accumulate on adjoining lands, and that overflow water from streams and rivers is considered in this state to be surface water. In the course of the opinion the court said:

"As any landowner or person in possession of land has the right at common law, as construed in this state, to shut overflow or surface water off his land, so, by such law, the defendant has the right to shut the overflow water of the river from its right of way, provided it does not interfere with the river channel. There is no claim here that there is any interference with the river channel."

Referring to the section of the statute under which this action was brought, the court said:

"That section, in our judgment, cannot be construed to require that openings shall be made to let the water out of a river...