Moss v. St. Louis, Iron Mountain & Southern Railway Co.

85 Mo. 86

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinion

Sherwood, J.

This is an action for damages instituted by plaintiff, based upon a change made in its road bed at a certain point, by substituting trestle-work in the place of an embankment, when the latter washed away in 1876, for the space of about one hundred and fifty feet in length. Damages were claimed, because, at a high stage of water in Black river, the water of that stream ran through the opening in the roadway made by the substitution of the trestle-work for the embankment, and there being no ■culvert or opening, lower down in the embankment, for the egress of the water thus running through the trestle-work opening, it so accumulated as to form a large pond on plaintiff’s land, rendering about six acres of it unfit for cultivation.

Where a railroad company, as in the case at bar, condemns land by the appropriate method for that purpose, and then, without negligence, unskilfulness, or mismanagement, constructs its road and the embankment therefor, obstructing thereby no natural channel of water, the injuries done by such embankmént by causing water to flew over the land of adjoining proprietors, will be regarded as but the natural incidents and consequences •of that which the corporation, by reason of condemning the land, and paying the damages assessed, had acquired a lawful right to do; and for which injuries no action will lie, damages for them being assumed to be included in those already assessed. And the right of a railway company, after having constructed its road bed, to make such changes therein as experience may designate as proper, is of necessity, a continuous one; for the idea Is not to be tolerated that the company, having bought and paid for a right, should be denied the fullest and freest exercise thereof. These views, in substance, have found recent expression in the decisions of this court. Jones v. Railroad, 84 Mo. 151; and Abbott v. Railroad, 83 Mo. 271. Therefore, judgment reversed.

All concur.