Bird v. Hannibal & St. Joseph Railroad

30 Mo. App. 365, 1888 Mo. App. LEXIS 285
CourtMissouri Court of Appeals
DecidedApril 10, 1888
StatusPublished
Cited by16 cases

This text of 30 Mo. App. 365 (Bird v. Hannibal & St. Joseph Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bird v. Hannibal & St. Joseph Railroad, 30 Mo. App. 365, 1888 Mo. App. LEXIS 285 (Mo. Ct. App. 1888).

Opinion

Rombauer, P. J.,

delivered the opinion of the court.

As the appellant’s main complaint in this case relates to the rulings of the court on the pleadings, to its rulings on questions of prescription and limitation, and to the fact that the plaintiffs were permitted to recover on another cause of action than the one stated [370]*370in their petition, it becomes essential to set out the pleadings in detail.

The plaintiffs, in their petition, state the following facts : They are, and were at the date of the grievances complained of, owners in possession of certain lands on the banks of a natural water-course and stream known as Bird’s branch, which, after traversing plaintiffs’ land and crossing defendant’s right of way, emptied into a natural stream known as Bear creek.

Many years ago the defendant built its railroad embankment, closing and filling the natural bed of Bird’s branch, and dug a ditch from the point where the branch crossed defendant’s right of way along said right of way to a stone culvert designed to pass the waters of the branch through its railroad bank to the other side thereof. The petition then proceeds as fol-' lows:

“Now the plaintiffs state that the said defendant, its agents, servants, and employes, did not construct, erect, and maintain the said stone culvert in a scientific, skillful, careful, and prudent manner, as it was their duty to do, but, on the contrary, did construct the same in an unskillful, careless, and negligent manner, and have maintained, and have continued to use, and still use, the same constructed, notwithstanding its condition, owing to its construction in such unskillful, careless, and negligent manner, from said date to the time of bringing this suit; that the said stone culvert was. not, is not, and never was, of size and capacity sufficient to permit the waters of said stream (and the waters of the rain and melting snow accumulating therein) to have sufficient outlet, and to pass through the same, but, on the contrary, by means of the defect therein as aforesaid, to-wit, the want of capacity thereof, the said water was obstructed at said culvert, by means of the want of capacity thereof, and prevented from passing off and away from said lands, and were caused to dam up at said culvert, and to flow back into said ditch or aqueduct into the channel of said stream, and to fill the [371]*371same, and overflow the banks thereof, and thence to run into and overflow the lands of plaintiffs as aforesaid, and to destroy the herbage thereon, and to greatly depreciate the productiveness of the soil thereof.
“That in the years 1880, 1881, 1882, 1883, and 1884, and in each year thereof, the said waters of the said stream [and the waters of the rain and melting snow accumulated thereon] were obstructed in their passage at said culvert by reason of the insufficiency thereof, and were prevented, by reason of the said want of capacity of said culvert to carry off said waters, from running and passing off, and were accumulated and dammed up at said culvert, and did flow back thence into said ditch or aqueduct, and into the channel of said stream, and did fill said channel and overflow the banks thereof onto the said lands of plaintiffs, and did overflow and spread over said lands to the extent of fifteen acres, and more, and remain standing thereon for a long space of time, and did thereby destroy the herbage on said lands, and greatly depreciate the productiveness and the value of the soil thereof, and did thereby greatly injure plaintiffs, and plaintiffs say that said injury in the manner aforesaid was occasioned by the wrongful, unskillful, careless, and negligent conduct and acts of defendant, its servants and agents, in and about the changing of the course of said stream by the means aforesaid, and in and about the construction and building of the said stone culvert by the means aforesaid, and that plaintiffs have been damaged in the sum of two thousand dollars, for which judgment is prayed.”

The defendant thereupon filed the following motion:

“ Defendant moves the court for a rule on plaintiffs to elect upon which of the injuries pleaded in their petition as having occurred severally in the years 1880, 1881,1882, 1883, and 1884, they will proceed to trial, and prays the court further, after such election, to strike out of said petition all the other matters stating other injuries than that so elected to be tried, because: (1) Said petition charges in one and the same count [372]*372thereof, five distinct injuries, each of which, if well pleaded, constitutes a several cause of action ; (2) said several causes of action are blended in one count, and not separately stated, as required by law.”

This motion was by the court overruled, the defendant excepting. The defendant also moved to make the-petition more definite and certain, and to strike out from it all that relates to surface water, which motions were likewise overruled, the defendant excepting. The defendant then filed its answer admitting its corporate existence and the construction of the embankment. It denies that it ever obstructed the natural water-course-of Bird’s branch. It averred that it constructed ample culverts and water-ways to carry the water off the branch through its embankment, and makes the following allegation in regard to the stone culvert:

“Avers that defendant was such corporation, and as such owned said right of way, and constructed thereon said embankment, of the dimensions, and in the manner as respects the surface fiowage over the adjacent lands, and as to' fiowage and streams across said lands, as it now is, and as they have always been since, and constructed through and across said embankment the stone culvert mentioned in the petition of the dimensions and capacity, and form and location as respects the fiowageof both the surface water and water-courses, in all respects precisely as the same now is, and since its construction has always been, more than five years, more than ten years, more than twenty years, before the date of beginning of this suit, and this defendant did, more than twenty years before the beginning of this suit, construct its railroad upon said embankment, and commence operating the same, and has so continuously used and operated the same thereon ever since.”

The answer then pleads the statute of limitations of five years, the statute of limitations of ten years, and avers that the injury, if any, caused to plaintiffs’ lands were owing to the negligence of plaintiffs and other parties for whose acts the defendant is not responsible.

[373]*373The answer was traversed by reply. Upon a trial the plaintiffs had a verdict and judgment for $390.65.

The first question presented for our consideration is, whether the defendant’s complaint that the petition contains several causes of action mingled in the same count is well founded. If so the judgment must be reversed for that ground alone, because the defendant properly saved its exceptions in every way in which it could properly raise the point, by its motion to compel plaintiffs to elect, by objection to evidence, and by motion for new trial. Mooney v. Kennett, 19 Mo. 551; Otis v. Bank, 35 Mo. 131; Christal v. Craig, 80 Mo. 370, 371; Offield v. Railroad, 22 Mo. App. 607.

The rule in this class of cases is concisely stated by Judge Hough, in Van Hoozer v. Railroad, 70 Mo.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelly v. City of Cape Girardeau
89 S.W.2d 41 (Supreme Court of Missouri, 1935)
Kelley v. City of Cape Girardeau
72 S.W.2d 880 (Missouri Court of Appeals, 1934)
Hayes v. St. Louis & San Francisco Railroad
162 S.W. 266 (Missouri Court of Appeals, 1913)
Gorman v. Chicago, Burlington & Quincy Railroad
148 S.W. 1009 (Missouri Court of Appeals, 1912)
Middelkamp v. Bessemer Irrigating Co.
46 Colo. 102 (Supreme Court of Colorado, 1909)
Powers v. St. Louis, Iron Mountain & Southern Railway Co.
57 S.W. 1090 (Supreme Court of Missouri, 1900)
Powers v. St. Louis, Iron Mountain & Southern Railway Co.
71 Mo. App. 540 (Missouri Court of Appeals, 1897)
Carson v. City of Springfield
53 Mo. App. 289 (Missouri Court of Appeals, 1893)
Bunten v. Chicago, Rock Island & Pacific Railway Co.
50 Mo. App. 414 (Missouri Court of Appeals, 1892)
McKee v. St. Louis, Keokuk & Northwestern Railroad
49 Mo. App. 174 (Missouri Court of Appeals, 1892)
Hudson v. Burk
48 Mo. App. 314 (Missouri Court of Appeals, 1892)
Buntin v. Chicago, R. I. & P. Ry. Co.
41 F. 744 (U.S. Circuit Court for the District of Western Missouri, 1890)
Jackson v. Chicago, S. F. & C. Ry. Co.
41 F. 656 (U.S. Circuit Court for the District of Western Missouri, 1890)
Culver v. Chicago, Rock Island & Pacific Railway Co.
38 Mo. App. 130 (Missouri Court of Appeals, 1889)
Autenrieth v. St. Louis & San Francisco Railroad
36 Mo. App. 254 (Missouri Court of Appeals, 1889)

Cite This Page — Counsel Stack

Bluebook (online)
30 Mo. App. 365, 1888 Mo. App. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bird-v-hannibal-st-joseph-railroad-moctapp-1888.