Ranney v. St. Louis & San Francisco Railroad

119 S.W. 484, 137 Mo. App. 537, 1909 Mo. App. LEXIS 238

• Court: Missouri Court of Appeals
• Decided: May 11, 1909
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — 1. This action is founded on the statute which makes it the duty of every railroad, company or corporation, owning and operating a railroad in this State, or constructing one, to cause to be constructed and maintained in three months after the completion of the same through any county, suitable ditches and drains along each side of the roadbed to connect with ditches, drains or watercourses, so as to afford sufficient outlet to drain and carry off the water along the railroad, wherever the draining of such water has been obstructed or rendered necessary by the construction of the railroad. [R. S. 1899, sec. 1110.] Defendants say only surface water was obstructed and caused to overflow plaintiff’s farm by the railroad embankment, and they were not bound to construct drains to carry off surface water, even granting there was a natural outlet with which lateral drains could have been connected. This position is untenable in fact or law. Part of the water intercepted by the railroad dump flowed into Hawkins’ Branch from springs on the southern slope of the hills; and if a railroad bed obstructs the flow of surface water, the railway company must provide lateral drains to carry it off, if there is a watercourse, ditch or drain into which the lateral excavations may be made to flow. An adjacent proprietor damaged by the omission of this duty has an action against the company. [Williamson v. Railroad, 115 Mo. App. 72; Cooper v. Railroad, 123 Mo. App. 141; Cox v. Railroad, 174 Mo. 588, 606.] Most of the decisions wherein railroad companies were relieved from liability for obstructing the drainage of surface water, were pronounced without reference to the statute involved in the present case. [Clark v. Railroad, 36 Mo. 202, 223; Abbott v. Railroad, 83 Mo. 271; Jones v. Railroad, 84 Mo. 151, 155; Moss v. Railroad, 85 Mo. 86; Johnson v. Railroad, 111 Mo. 378.] Defendants ■ invoke the cases of Field v. Railroad, 21 Mo. App. 600, and Kenny v. Railroad, 69 Mo. App. 569, the former of which does not support defendant’s position, and if the second does, its doctrine is contrary to the doctrine declared by the Supreme Court in Cox v. Railroad, supra.

Defendants say there was no proof any ditch, drain or watercourse existed for defendants to connect lateral drains with; but certainly there was testimony to prove these could have been dug into North Cut Ditch, and that by doing so the water which flowed against the railroad dump would have been carried off much sooner than it escaped by percolation and evaporation. Plaintiff and other witnesses testified his farm was overflowed sometimes for a week in consequence of the obstruction of the drainage by the railroad dump, thus destroying his crops and hindering tillage; whereas before the dump was raised, water did not stand long enough to interfere with cultivation. We hold plaintiff made a prima-facie case.

2. The second instruction granted for plaintiff had reference to the eight openings in the railroad dump between plaintiff’s farm and Commerce, closed by defendants in 1902, but left open by their predecessor for ten years in order that the natural drainage of the land north of the dump might not be hindered. The instruction proceeded on the theory that if, prior to the filling of these cuts or drainways, defendants might have dug lateral ditches to them, thereby complying with the statute, but instead of doing this, filled up the drain-ways, they were estopped to say there was no ditch, drain or watercourse to connect with.. The instruction was inaccurate; for granting the private ditches were such as defendants should have drained to, closing them would not work an estoppel in a technical sense; though no doubt in such an event it would be no defense to plaintiff’s action that defendants had closed them. We prefer to consider the propriety of the instruction on broader grounds. The statute requires lateral ditches to be dug by railroad companies wherever there are “ditches, drains or watercourses” into which water gathered by the lateral ditches can be poured. Those designations do not signify necessarily, natural hollows, ravines or streams, but would include suitable artificial ditches or canals. Therefore the question is whether ditches dug across farms by the proprietors to drain their own lands, and cuts left in a railroad dump to prevent intercepting the flowage of such ditches, are drains, ditches and watercourses in the sense of the statute. The drains supposed in the present case to have afforded outlet for any lateral ditches defendants might have dug, are those which lay east of plaintiff’s farm and on the lands of other proprietors who had excavated them for their private use. Plaintiff incidentally derived benefit from said ditches and cuts in the dump; for they prevented an accumulation of water on the north side of the railroad and thereby prevented long submersion of his land. We are cited to certain statutes claimed not only to inhibit defendants from closing the drains and openings, but to make the closing of them a misdemeanor. [R. g. 1899, secs. 6962, 6969, inclusive.] Very likely obstructing the ditches without the consent of the proprietors of the lands they drained, would have been actionable at the suit of those proprietors and an offence. Plaintiff’s alleged right in the matter is more questionable; for the case stands on different principles from those applicable where a railway company has banked across a natural watercourse; which act would entail liability, if the company omitted to take care of the water and prevent it from damaging adjacent lands. [Munkres v. Railroad, 72 Mo. 514.] As the ditches were not on his land or intended to drain it, and he had taken no part in making them, and had acquired no rights in them by direct grant from those who had made them, or as appurtenant to lands granted, we are of the opinion said statutes gave plaintiff no standing to object to their closure, either as against 'their makers or the defendants. For the same reasons and others to be stated, we think, too, plaintiff had no such right or easement to have his lands drained, by the private ditches and through the cuts in the embankment which, while open, had accommodated those ditches, as gave him an action on the statute against defendants for not digging lateral ditches to said artificial drainways. We do not say he had an easement or right in said artificial drainage system which would enable him to maintain any bind of an action for their closure, but we simply decide he has no case on the statute. For aught that ¡appears, defendants may have closed the ditches pursuant to some arrangement with the persons whose lands they had been excavated to 'drain, and this might have been done to make a safe roadbed. [3 Farnham, Waters, sec. 908.]

The other reasons we have in mind why plaintiff cannot maintain an action on the statute for closing the drains, are these: as plaintiff was not a riparian owner we do not see how he could acquire an easement in the ditches by prescription. [24 Ency. Law (2 Ed.), p: 981, and citations in note 2.] And the further difficulty is presented that the private ditches appear to have been of a temporary character, in snch sense as prevented an easement from being acquired in them by any one, against the persons who constructed them and those deriving title from said persons. Prescriptive rights may be acquired in artificial watercourses as well as in natural ones, where it appears the former are intended to be permanent instead of temporary, thus leaving room for a finding that their use by the party asserting prescription was not precarious and by way of license from the owner, but adverse. But when an artificial waterway is intended to exist only so long as-suits the purposes of him who makes it through his lands, even a riparian proprietor can acquire no easement as against him. [3 Farnham, Waters, pp. 2428, 2434, particularly secs. 827b, 827d; Wood v. Waud, 3 Exchr. 748, 777.] -In the case just cited, which is the leading one in England, where this question has been most considered, Baron Pollock said:

“We entirely concur with Lord Desman, C. J., that The proposition that a watercourse of whatever antiquity, and in whatever degree enjoyed by numerous' persons, cannot be enjoyed so as to confer a right to the use of the water, if proved to have been originally artificial, is quite indefensible;’ but, on the other hand, the-general proposition that, under all circumstances, the right- to watercourses arising from enjoyment, is the-same whether they be natural or artificial, cannot possibly be sustained. The right to artificial watercourses,, as against the party creating them, surely must depend' upon the character of the watercourse, whether it be-of a permanent or temporary nature, and upon the circumstances under which it is created. The enjoyment for twenty years of a stream diverted or penned up by permanent embankments, clearly stands upon a different footing from the enjoyment of a flow of water originating in the mode of occupation or alteration of a person’s property, and presumably of a temporary character, and liable to variation.”

In Arkwright v. Gell, 5 Mees. & Wel. 203, it appeared a drainway or “sough” built to drain certain mines, had been in existence for many years and a riparian owner claimed, both by grant and prescription, the right to operate his mill with the waters of the “sough.” It was held the continuous use, even though it had lasted longer than the prescriptive period, would give him no easement if the “sough” was an artificial water course and made for a particular and temporary purpose; namely, for the convenient working of the mines,. In Gaved v. Martyn, 19 Com. Bench (N. S. 1865), 732, 756, a clear distinction is taken between artificial streams of a temporary and those of a permanent nature, in respect of the acquirement of easements in them by riparian owners; and so it was in Roberts v. Richards, 50 L. J. (N. S. 1881), 297; Burrows v. Lang, 2 Chancery, 1901, p. 502; Hanna v. Pollock, 2 Irish Rep. (1898) 532, 547. Those are English cases and the question seems to have been but little touched upon in the American decisions; but such relevant cases as we have found are even less favorable to the plaintiff’s contention. [Lawton v. Railroad, 61 S. C. 548; Fox River, etc., Co. v. Kelly, 70 Wis. 287, 300; Chamberlain v. Hemmingway, 63 Conn. 1; Legree v. Railroad, 166 Ill. 249; Norton v. Colentine, 14 Vt. 246.] In this case the private drains and the cuts through the dump where they entered the right of way, had existed perhaps for the prescriptive period, and the question may occur whether this fact would give them a permanent character; that is to say, what is meant by temporary and permanent in the law of such cases? The question is answered in Burrows v. Lang, 2 Ch. (1901) 502, where it was said the meaning of “temporary” is not confined to a purpose which happens to last in fact for a few years only, but includes one, which in the reasonable contemplation of the parties may come to an end; meaning, we suppose, it will end upon the occurrence of an event, the occurrence of which is obviously probable. For illustration the court said, if a man pumps water from his mines for the purpose of draining them, this is a temporary purpose; or if he makes a water course for the use of his mill on his own land, that is a temporary purpose, for it is limited to the period during which he uses the mill. In the present case the private drains might be closed by the owners, or with their consent, at any time.

We are conscious of the fact this record touches questions regarding water and drainage rights which have not been settled fully by the courts of this country and are of increasing importance, and hence we wish to decide no more than is called for by the appeal. In view of the authorities, supra, we must hold that as regards plaintiff, who is not a riparian owner, the private artificial drains in question, were not such outlets 'as defendants were bound to dig lateral ditches to, on pain of laying themselves liable to an action for damages by 'plaintiff for the submersion of his land.

We are not passing on the question of whether plaintiff could have an action against defendants for causing the water to accumulate against their embankment and overflow his farm, but confine our decision simply to their liability to him for failure to dig ditches to the private drainways. It is worthy of note in this connection that the evidence tends to prove the inundation of his farm was due, not to the want of lateral ditches leading to the private drains, but to closing the latter. Indeed plaintiff’s testimony proved reopening but three of them afforded relief. '

The instruction under review is erroneous and for that reason thd judgment must be reversed and the cause remanded.

All concur.