Williamson v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 04 December 1905
• Court: Missouri Court of Appeals
• Parties: WILLIAMSON et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

90 S.W. 401

115 Mo. App. 72

WILLIAMSON et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Kansas City Court of Appeals, Missouri.

December 4, 1905.

1. APPEAL—OBJECTION NOT RAISED BELOW—MISJOINDER OF PARTIES.

Objection that plaintiffs have joined in an action for injury to their property when they were not partners or joint owners, not having been properly taken below, is not available on appeal.

2. RAILROADS — FAILURE TO CONSTRUCT DITCHES—INJURY TO CROPS.

Under Rev. St. 1899, § 1110, making it the duty of a railroad company to construct ditches along its roadbed to carry off water where the draining thereof has been obstructed or rendered necessary by construction of the railroad, a railroad company is liable for injury to crops, by its embankment causing the holding back of the flow of surface water from the hills through a creek till it comes over the planted land, which a compliance with the statute would have prevented.

3. EVIDENCE—PLATS.

A paper denominated a blue print of defendant's right of way, offered by tender in an action against a railroad for the flooding of lands by its failure to construct ditches along its road, not identified as made of the place in controversy, and not shown to be authentic or correct, is properly excluded.

4. APPEAL—VARIANCE.

Judgment for plaintiff in an action for injury to crops will not be reversed because of variance as to description of part of the land, the identity of the crop being fully made out, especially where no proper advantage was taken of the objection.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by B. F. Williamson and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, defendant appeals. Affirmed.

Geo. P. B. Jackson, for appellant. N. T. Gentry, for respondents.

ELLISON, J.

In the summer of 1904 plaintiffs were the owners of growing crops on land owned by one of plaintiffs, lying in the Missouri river bottom, out near the bluffs or hills. Defendant's right of way is south of this land, between it and the river. Defendant constructed an embankment along the right of way, upon which it laid its track and operated trains. The effect of this embankment was to obstruct the flow of surface water from the hills south over the general surface and through one or more creeks or branches, so that it backed up over plaintiff's crops and injured them. The trial was before the court without the aid of a jury, and resulted in favor of plaintiffs.

There are several objections urged for reversal of the judgment, several of a technical nature. It is first said that plaintiffs have joined in the suit when they were not partners, nor were they joint owners. But no proper objection was taken to the alleged misjoinder, and it is now too late. Crenshaw v. Ullman, 113 Mo. 633, 638, 20 S. W. 1077.

It is said by defendant that the water which was obstructed and caused to submerge the...