Wayland v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 30 April 1882
• Citation: 75 Mo. 548
• Parties: WAYLAND v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

75 Mo. 548

WAYLAND

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

Wells H. Blodgett for appellant.

The action is to recover damages for making and maintaining a ditch which injuriously affected the plaintiff's land. The evidence is, that defendant did not make the ditch, and, hence, there need be no discussion of its liability for the making of it, and thereby committing a trespass or creating a nuisance. The only question is, whether, under the facts in the case, the defendant is legally responsible for maintaining or continuing a nuisance, to abate which it would be compelled to commit a trespass by going upon the lands of another and filling up the ditch. This question must be answered in the negative. Kansas Pacific R'y Co. v. Mihlman, 17 Kas. 224. If the North Missouri Railroad Company entered upon the lands of an adjoining owner and without permission dug a ditch, then the North Missouri Railroad Company was responsible in an action of trespass for all damages naturally resulting from such an act. If in consequence of the ditch, the lands of a third party were injuriously affected, the duty of abating the nuisance by filling up the ditch would devolve upon the owner of the land, and not upon the North Missouri Railroad Company, who to remedy one wrong would have to commit another. Clegg v. Dearden, 64 Eng. Com. L. 600.

Bell, Huston & Mullins for respondent.

The railroad company had no right to divert the water of the river from its natural channel. Angell on Watercourses, (7 Ed.) § 97; Parker v. Griswold, 17 Conn. 299; McCord v. High, 24 Iowa 336; or to flood the plaintiff's land without his consent. Moffett v. Brewer, 1 G. Greene (Iowa) 348; Brown v. R. R. Co., 12 N. Y. 486; Young v. R. R. Co., 28 Wis. 171; Vedder v. Vedder, 1 Denio 257; Pinney v. Berry, 61 Mo. 359; Rose v. St. Charles, 49 Mo. 509.

HENRY, J.

This suit was for the recovery of damages to plaintiff's land, occasioned by an overflow of the same with water from the Chariton river, alleged to have been caused by ditches dug by defendant in the construction of its road, to drain a lake into said river.

The following is the petition: “Plaintiff states that defendant is a duly incorporated railroad company under the laws of this State, and was so incorporated at the time of committing the grievances hereinafter stated. Plaintiff further states that the railroad track and bed of defendant crosses the middle fork of the Chariton river in the north half of the northeast quarter of section 1, township 53, range 17, in the county of Chariton aforesaid, and that on the west side of said river and on said quarter section of said land defendant caused to be constructed and maintained in the year 1872, and has continued, ever since said time, to maintain certain ditches of large capacity, to be dug and kept open on the north and south sides of said track, where the same crosses said river as aforesaid, whereby the natural flow of the waters of said river has become diverted from their natural channel, and caused the waters of said river to overflow and submerge certain lands belonging to and which have belonged to plaintiff ever since the year 1872, which lands are known as the northwest quarter of section 12, township 53, range 17, in said county of Chariton, and that said lands were valuable for farming purposes, but by reason of the overflow caused by the diversion of said river from its natural channel by means of said ditches maintained by defendant as aforesaid, the said lands have become wholly worthless, and that by reason thereof, the plaintiff, for the years 1873, 1874, 1875, 1876, 1877 and 1878 has been wholly deprived of the use of said lands for any farming purposes whatever. All of which said facts defendant well knew, wherefore plaintiff says he has been damaged in the sum of $1,500, for which he asks judgment.”

The plaintiff's testimony established the following facts: In the fall of 1866, and the winter of 1867, the North Missouri Railroad Company, defendant's predecessor, dug two ditches. One of these ditches was on the north and the other on the south side of the railroad. The main body of the water comes on to plaintiff's land through the north ditch, and that ditch connects with the river about fifty feet from the right of way, on land never owned by the defendant or the old North Missouri Railroad Company. When the ditches were dug by the North Missouri Railroad Company, they were so small that one could step across them, and in that condition would have occasioned no injury to plaintiff's land, but the water from the river and the lake, running through, widened and deepened them until at the trial of the cause, they were twenty or thirty feet wide and eleven or twelve feet deep. The defendant began operating the road in 1872, and has never done anything to widen or deepen the ditches, but in 1877, attempted to close them up. The ditch on the south side, plaintiff testifies, was not dug to drain the lake, and is over thirty feet from the right of way of the company. He also stated that “as the north ditch was originally built it would have done my land no injury, unless the creek had staid up a long time. The damage I complain of was caused by the ditch getting larger every year; every rise in the creek made it larger.” He further states that in 1874 or 1875, the defendant cut down the bank of the river, two or three feet for a distance of twenty feet where it built a bridge over the creek. The water that came out under the bridge ran into the big ditch, and after that, into the lake, and from the lake into the bottom. All the evidence tends to show that plaintiff's injury was occasioned by the north ditch, except that of plaintiff with respect to the lowering of the bank of the creek by defendant where the bridge was erected.

The court, for plaintiff, gave the following instructions to the jury:

1. Although the jury may believe from the evidence that plaintiff's land may have been subjected to overflow, and that it would have been overflowed during the years named in the petition by the waters of the creek getting out over their banks, even if there had been no ditches at the point where the railroad crossed the creek, yet, if they further find that, after notice or knowledge of the injury caused by the ditches on defendant's right of way, defendant maintained or permitted such ditches to remain open, or insecurely or insufficiently closed, and that thereby plaintiff's land was overflowed sooner, and water remained on it longer, or the quantity of water on it was increased, or it was turned upon his land at a different place or in a different manner from what it would have naturally flowed, then their finding should be for plaintiff.

2. Notice to defendant's chief engineer was notice to defendant.

3. If the jury find for plaintiff they should allow him for all injury, if any, to the rental value or use of his land resulting from its overflow by defendant by reason of the ditches on its right of way, after defendant had notice or knowledge of such overflow up to the time when this suit was brought; not, however, exceeding in all the sum of $1,500.

4. Although the jury may believe from the evidence that the middle fork of the Chariton did annually overflow its banks and submerge the lands of plaintiff, mentioned in the petition, before defendant's road was built, yet, if they further believe from the evidence that in consequence of ditches which may have been cut by the North Missouri Railroad Company on its right of way, said lands were submerged for a longer period of time, and that said lands, in...