Offield v. Wabash, St. Louis & Pacific Railway Co.

22 Mo. App. 607, 1886 Mo. App. LEXIS 335

• Court: Missouri Court of Appeals
• Decided: June 14, 1886
• Status: Published

Opinion

Ellison, J.

This action is to recover two thousand dollars damages sustained by plaintiff by the destruction of his crops from the overflow of Ms lands, alleged to have been caused by defendant. The overflow resulted from a diversion of the channel of a certain water course, known as “Board Tree Branch,” and occurred in the years 3879, 1880, 1881, 1882, and 1883, successively. The entire cause of action is stated in one count, and the damage is laid in one sum. Defendant filed a motion to require plaintiff to elect which year he would contend for. This motion was overruled, exception was taken, and the point saved in the motion for new trial. The motion should have been sustained. When crops are injured by an annual overflow of water, such injury does not go to the entire value of the estate, but, being ©f yearly recurrence, is susceptible of periodical apportionment, and may, therefore, be redressed by successive actions. Van Hoozer v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575. Each annual overflow was a separate cause of action, and, as such, should have been separately stated in plaintiff ’ s petition. Mooney v. Kennet, 19 Mo. 551; Otis v. Mechanics’ Bank, 35 Mo. 128. The motion to require plaintiff to elect on which cause lie -would proceed,'and strike out the balance, was the proper mode of striking at the petition. Otis v. Mechanics Bank, supra; Christal v. Craig, 80 Mo. 367.

The judgment is reversed and cause remanded.

All concur.