White v. Wabash Railroad Co.

• Decision Date: 01 December 1947
• Docket Number: No. 20805.,20805.
• Citation: 207 S.W.2d 505
• Parties: W.C. WHITE AND SABETHA WHITE, RESPONDENTS v. WABASH RAILROAD COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

207 S.W.2d 505

W.C. WHITE AND SABETHA WHITE, RESPONDENTS v. WABASH RAILROAD COMPANY, A CORPORATION, APPELLANT.

No. 20805.

Kansas City Court of Appeals. Missouri.

Opinion delivered December 1, 1947.

Appeal from Circuit Court of Randolph County. — Hon. Aubrey R. Hammett, Judge.

REVERSED & REMANDED.

Hunter, Chamier & Chamier for appellant.

(1) The rule of the civil law is that as between owners of higher and lower ground, the upper proprietor has an easement to have surface water flow naturally from his land onto the land of the lower proprietor, which is subject to a corresponding servitude, and the lower proprietor has no right to obstruct its flow. The higher land has a servitude on the lower land for the discharge of surface water. McCormick v. K.C., etc., R.R. Co., 70 Mo. 359; Shane v. K.C., etc., R.R. Co., 71 Mo. 237; 67 C.J. 864-866; 27 R.C.L. 1140-1142. (2) The common-law or common-enemy rule is that surface water is a common enemy which every proprietor may fight as he deems best, regardless of its effect on other proprietors, and accordingly the lower proprietor may take any measures necessary for the protection or improvement of his property although the result may be to throw the water on an adjoining proprietor, provided he does not proceed negligently, recklessly, or wantonly. Abbott v. K.C., St. J. & C.B. Ry. Co., 83 Mo. 271; McCormick v. K.C. St. J. & C.B. Ry. Co., 57 Mo. 433; Schneider v. Mo. Pac. Ry. Co., 29 Mo. App. 68; Hoester v. Hemsath, 16 Mo. App. 486; Thompson v. C., M. & St. P. Ry. Co., 119 S.W. 509, 137 Mo. App. 62; Cox v. H. & St. J.R.R. Co., 174 Mo. 588, 74 S.W. 854; Goll v. C. & A. Ry. Co., 271 Mo. 655, 197 S.W. 244; Adair Drainage Dist. v. R.R. Co., 280 Mo. 244, 217 S.W. 70; Anderson v. Drainage Dist., 309 Mo. 189, 274 S.W. 448; Hosher v. R.R. Co., 60 Mo. 329; Munkers v. R.R. Co., 60 Mo. 334; Johnson v. Leazenby, 202 Mo. App. 232, 216 S.W. 49; Beauchamp v. Taylor, 132 Mo. App. 92, 96, 111 S.W. 609; Walther v. City, 166 Mo. App. 467, 149 S.W. 36; Keener v. Sharp, 341 Mo. 1192, 111 S.W. 2d 118; Tackett v. Linnenbrink, 112 S.W. 2d 160; Restatement on Torts, Sec. 833, Mo. Supplement 296; Jones v. Hannovan, 55 Mo. 462; 67 C.J. 866; 27 R.C.L. 1143-1145. (3) Where the railroad complies with the modified common enemy rule it cannot be held liable. Sec. 5222, R.S. Mo., 1939; Emery v. St. L. & S.F.R. Co., 144 Mo. App. 523, 129 S.W. 44; Poncot v. St. L., I.M. & S., 176 Mo. App. 225, 161 S.W. 1190; Cox v. H. & St. J.R. Co., 174 Mo. 588, 74 S.W. 854; Hayes v. St. L. & S.F.R. Co., 177 Mo. App. 201, 162 S.W. 266; Harrelson v. K.C. & Atl. R.R., 151 Mo. 842, 52 S.W. 368. (4) Plaintiffs failed to make a case under the modified common enemy rule, and defendant's motions for directed verdict should have been sustained. Benson v. The C. & A.R. Co., 78 Mo. 504; Farrar v. Shuss, 221 Mo. App. 472, 282 S.W. 512; Poncot v. St. L., I.M. & S.R. Co., 176 Mo. App. 225, 161 S.W. 1190. (5) The statute authorizes owners of swamp, wet, and flat lands to construct an open ditch to any outlet into which the waters from such land could be drained. Plaintiffs, as lower landowners whose lands were drained, gained no right, privilege, or prescription from the construction of such ditch, and they suffer no legal damage if the course of the ditch is changed, obstructed, or cut, and defendant is under no duty to plaintiffs to continue the flow of surface water through such private ditch. Sec. 12455, R.S. Mo., 1939; Heisserer v. M.P.R.R. Co., 294 S.W. 132; Ranney v. St. L. & S.F.R. Co., 137 Mo. App. 537. 119 S.W. 484. (6) Cases in Missouri involving the diversion or obstruction of surface waters, are not applicable to the case at bar. Paddock v. Somes, 102 Mo. 226, 14 S.W. 746; McNulty v. Miller, 167 Mo. App. 134, 151 S.W. 208; Ready v. Mo. Pac. Ry. Co., 98 Mo. App. 467, 72 S.W. 142; Blackford v. Constr. Co., 132 Mo. App. 157, 112 S.W. 287; Bradbury Marble Co. v. Laclede Gar., 128 Mo. App. 96, 106 S.W. 594; St. Louis Safe Bank Co. v. Kennett Estate, 101 Mo. App. 370, 74 S.W. 474. (7) Generally declaring that a landowner may not collect water, as in a ditch from upon his land, and cast it upon his neighbor in a concentrated flow. They do not apply to the case at bar because the applicable modified common law rule required defendant to build the ditches complained of. McCormick v. K.C., St. J. & C.B.R. Co., 70 Mo. 359; Tucker v. Hagan, 300 S.W. 301; Rychlicki v. City of St. Louis, 98 Mo. 497, 11 S.W. 1101; Reedy v. St. L. Brewing Ass'n 161 Mo. 523, 61 W. 142; Reedy v. St. L. Brewing Ass'n, 161 Mo. 523, 61 S.W. 859; Lynch v. St. L., K.C. & C. Ry., 180 Mo. App. 169, 168 S.W. 224. (8) In which cities are held liable for damages resulting from the diversion of surface waters incidental to the construction of streets, storm sewers, etc. Zook v. City of Louisiana, 12 S.W. 2d 518; Bodam v. City of New Hampton, 290 S.W. 621; Bielman v. City of Joseph, 260 S.W. 529; Lewis v. City of Springfield, 142 Mo. App. 84, 125 S.W. 824; Gibson v. City of St. Joseph, 216 S.W. 50. (9) In which a specific and actual charge of negligence and recklessness is made against defendant for the manner in which it proceeded with its construction work, and evidence was introduced in support thereof. Grant v. St. L., I.M. & S.R.R., 149 Mo. App. 306, 130 S.W. 80; Reaugh v. A., T. & S.F. Ry. Co., 218 S.W. 947. (10) In which specific and actual charges are made that the defendant failed to conform to the requirements of Sec. 5222, R.S. Mo., 1939. Pearson Elevator Co. v. M.K.T. Ry. Co., 336 Mo. 583, 80 S.W. 2d 137. (11) Where the defendant is charged with negligence and the diversion of a natural watercourse. Reaugh v. A., T. & S.F., 218 S.W. 947; State ex rel. Mo. Pac. v. Allen, 306 Mo. 66, 267 S.W. 900; Jones v. C., B., Q., 343 Mo. 1104, 125 S.W. 2d 5; Tucker v. Hagan, 300 S.W. 301.

William M. Stringer for respondents.

(1) The petition states a cause or claim against the defendant and is sufficient without the allegation of negligence. Kieger v. Sanko, 1 S.W. 2d 218; Farrar v. Shuss, 221 Mo. App. 475, 282 S.W. 512; Thoel v. Planing Mill Co., 165 Mo. App. 707; Lynch v. Railroad, 180 Mo. App. 169; Bruntmeyer v. Drainage District, 196 Mo. App. 360; Johnson v. Leazenby, 202 Mo. App. 232; Grant v. Railroad, 149 Mo. App. 306; Tucker v. Hagan, 300 S.W. 301; Reaugh v. Atchison T. & S.F., 218 S.W. 947; Frick v. City of Kansas City, 117 Mo. App. 488; McCormick v. Railroad, 57 Mo. 434; Benson v. C. & A. Ry. Co., 78 Mo. 504; Paddock v. Sames, 102 Mo. 226; Anderson v. Drainage District, 309 Mo. 205; Abbott v. Railroad, 83 Mo. 271. (2) The court did not commit error in refusing to direct the jury to find for the defendant. Clader v. City of Neosho, 198 S.W. 2d 523; Young v. City of Farmington, 196 S.W. 2d 124; Lowry v. Mohn, 195 S.W. 2d 652; Richards v. Gardiner, 193 S.W. 354.

CAVE, P.J.

Plaintiffs brought this action to recover damages sustained because of an alleged diversion of surface waters by the defendant onto and over a farm owned by the plaintiffs. Trial before the court and a jury resulted in a verdict and judgment for the plaintiffs in the sum of $500, and defendant duly perfected its appeal to this court.

The petition alleges that plaintiffs are husband and wife and are the owners of a farm of 240 acres of land in Randolph County, Missouri; that about three years prior to the bringing of this suit the defendant constructed a branch railroad from its main line, which ran north and south and which branch line was constructed generally in a westerly direction and passes within a few feet of the north line of plaintiffs' farm. Because there is disagreement concerning the basis of liability charged and submitted, we quote the essential part of the petition as follows:

"3. In constructing the said branch line the defendant, by means of fills, cuts, ditches and culverts, did knowingly and unlawfully divert the surface waters from sixty to sixty-five acres of watershed, naturally draining east away from the said farm of the plaintiffs, and united the said extra surface waters with other surface waters naturally draining onto the said farm of the plaintiffs, and turned the united volume of said surface waters, by means of cuts, fills, ditches and culverts, onto the plaintiffs' said farm in one huge volume and stream, thereby knowingly and unlawfully causing the said large volume of said surface waters so enlarged by the said extra surface waters, to cut large ditches and gullies through and across the plaintiffs' said farm for a distance of about one-half mile, and thereby greatly deepening and widening the draw through the said farm from four to eight feet in depth over the normal condition and from eight to twenty feet in width over conditions existing before the defendant had so turned the said waters over the said farm, * * *". (Italics supplied).

Defendant's answer admits the construction of the branch line referred to in the petition, but specifically denies that it knowingly and unlawfully diverted the surface waters which naturally drained away from plaintiffs' farm, and made other specific denials of the allegations in the petition. The answer also alleged that it had constructed the branch line and the embankments, cuts, fills, culverts and ditches as it was required to do by law and in accordance with proper railroad engineering practices.

The reply was a general denial.

Defendant's only assignment of error is the action of the court in overruling its motion for a directed verdict.

Defendant is a railroad corporation owning and operating lines of railroad in Randolph County, Missouri, including a main line and a spur line in the vicinity of Jacksonville. The main line runs north from Moberly through the towns of Cairo and Jacksonville, and has been operated for many years. U.S. Highway 63 lies immediately east of the main railroad line. At a point approximately one and a half miles south of Jacksonville, an east-west county road crosses both...