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Edwards v. Missouri, Kansas & Texas Railway Co.

71 S.W. 366, 97 Mo. App. 103, 1902 Mo. App. LEXIS 205
CourtMissouri Court of Appeals
DecidedDecember 1, 1902
StatusPublished
Cited by7 cases

This text of 71 S.W. 366 (Edwards v. Missouri, Kansas & Texas Railway Co.) 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
Edwards v. Missouri, Kansas & Texas Railway Co., 71 S.W. 366, 97 Mo. App. 103, 1902 Mo. App. LEXIS 205 (Mo. Ct. App. 1902).

Opinion

SMITH, P. J.

— It may be seen by reference to 82 Mo. App.. 96, that when this cause was here on a former appeal the petition was in five counts, the first of which was to recover the value of a strip of ground on which was located the defendant’s right of way alleged to have been wrongfully and permanently appropriated. The second was to recover the damages sustained to the plaintiff’s land not so appropriated by reason of its being intersected by said railway. The third was for the unskillful and careless location and construction of the line of said railway and the bridges and culverts thereon so as to alter and impede the flow of water across the plaintiff’s land, causing the water to overflow and stand upon a large portion of the land and render the same unfit for cultivation. The fourth was to recover damages for the injury occasioned by such overflow in the year 1893, and the fifth count was to recover damages occasioned by such overflow in the year 1894.

[106]*106There was a trial on these.counts resulting in a verdict for plaintiff on all of them except the fourth, upon which it was for defendant; and in accordance with these several-'verdicts the judgment was given. On the appeal taken by plaintiff we reversed the judgment and remanded the cause.

After the cause was so remanded the plaintiff filed a. third amended petition, omitting therefrom the first, second and fourth counts contained in his former petition and retaining only the third and fifth — denominated in the amendment first and second counts.

The answer to the petition thus amended was a general denial. There was a trial and at the conclusion of the evidence the plaintiff dismissed as to the first count leaving only the second — the same as the fifth in the original petition. The verdict was for plaintiff on that count and defendant appealed.

The record brought before us by the present appeal discloses about these facts, namely: that defendant’s railway from Jefferson City west to Boonville is located on the north shore of the Missouri river and over and along the valley of that river, skirting as near as practicable the base .of adjacent bluffs and hills. The line of this railway between the two- terminal points just named passes through the land of the plaintiff. There is a small stream called “Lindsay’s Branch” starting back in the hills; it runs south nearly two miles to where it enters the Missouri river valley and there, after deflecting a little eastward, resumes its southerly course across a crescent-shaped piece of plaintiff’s land lying between the bluffs and the defendant’s railway track, passing under defendant’s track and from thence into plaintiff’s fields, lying on the south side of such track, a few hundred feet to a point from which it turns west and after going a half mile finally unites with the Bonne Femme.

The defendant’s track for some considerable distance east and west of where it crosses Lindsay’s branch' is laid on an embankment composed of mould, sand, etc., which is from a foot and a half to two feet [107]*107high. There was a piling bridge across the stream on which the defendant’s track rested. It is supported by a row of piling driven into the ground and extending diagonally across the center of the stream. From the bottom of the bridge to that of the stream is about five feet. The width of the stream for two hundred feet above the bridge varies from five to ten feet and the top of its banks are about five feet above its bottom. Its flowage basin covers about six or seven hundred acres. Along its course are occasional springs which are discharged into it and which supply it with some water most of the time.

A few hundred feet north of the railway track the county road crosses the stream on a wooden bridge. About one hundred acres of the plaintiff’s land abuts against the railway track on the south, on either side of the bridge. A reference to the following map will assist in understanding the foregoing description of the locus in quo:

[108]

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Bluebook (online)
71 S.W. 366, 97 Mo. App. 103, 1902 Mo. App. LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-missouri-kansas-texas-railway-co-moctapp-1902.