Secongost v. Missouri Pacific Railway Co.

Missouri Court of Appeals

Secongost v. Missouri Pacific Railway Co.

53 Mo. App. 369, 1893 Mo. App. LEXIS 67

DecidedApril 3, 1893

StatusPublished

This text of 53 Mo. App. 369 (Secongost v. Missouri Pacific 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

Secongost v. Missouri Pacific Railway Co., 53 Mo. App. 369, 1893 Mo. App. LEXIS 67 (Mo. Ct. App. 1893).

Pincite

Opinion

Gill, J.

— Prom the allegations of her petition Mrs. Seqongost seems to have been the owner of a town lot in Boonville, Missouri, which abuts on the right of way of a railroad operated by the defendant; and she seeks to recover damages to the lot by reason of a deep cut or excavation made on the right of way whereby the lateral support was withdrawn and a portion of plaintiff’s lot was precipitated into the excavation. On the trial of the cause the circuit court sustained defendant’s objection to the introduction of any evidence on the petition for the reason that the same stated no cause of action against the defendant, and from a judgment in defendant’s favor plaintiff sued out this writ of error.

The ruling of the lower court was correct. Prom the most favorable light in which the case may be considered in behalf of plaintiff, she was not entitled to a recovery on the facts alleged in her petition. Admitting that defendant as the owner of the right of way had no right to excavate thereon so as to withdraw the lateral support to plaintiff’s lot (and [371]*371-such a position is very questionable under the decisions in this state), and yet the facts alleged in the petition make no case.

The gravamen of the charge in cases of this nature is, and must of necessity be, that defendant, owning the land immediately adjacent to the plaintiff’s, dug away and excavated-so near the plaintiff’s lot as to withdraw the support to the soil in its natural condition, and that in consequence thereof it fell into such pit or excavation to the plaintiff’s damage. It is this digging away the soil so near plaintiff’s property as to cause it to fall away that makes up the wrong committed, and for which in such cases damages have been awarded. But the facts alleged in this petition make no such case. It is not alleged that_defendant made the excavation. Defendant is not charged withTTiaiühg"dug’t’Ee pit or excavated on the right of way so as to cause this sliding away of plaintiff’s lot. Who may have done this does not appear. The extent of defendant’s offending, as alleged in the petition, is, that during the five years preceding the institution of the suit it ran its trains and conducted its business on this railroad where such an excavation had been made, and neglected to erect a retaining wall so as“ to protect plaintiff’s lot, etc. For this defendant was not liable. As already said the plaintiff’s damage, if any is recoverable, was chargeable to the party who committed the wrong — to the individual or corporation who did, or caused to be done, the excavation complained of.

Judgment affirmed.

All concur.

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Gill, J.

— Prom the allegations of her petition Mrs. Seqongost seems to have been the owner of a town lot in Boonville, Missouri, which abuts on the right of way of a railroad operated by the defendant; and she seeks to recover damages to the lot by reason of a deep cut or excavation made on the right of way whereby the lateral support was withdrawn and a portion of plaintiff’s lot was precipitated into the excavation. On the trial of the cause the circuit court sustained defendant’s objection to the introduction of any evidence on the petition for the reason that the same stated no cause of action against the defendant, and from a judgment in defendant’s favor plaintiff sued out this writ of error.

The ruling of the lower court was correct. Prom the most favorable light in which the case may be considered in behalf of plaintiff, she was not entitled to a recovery on the facts alleged in her petition. Admitting that defendant as the owner of the right of way had no right to excavate thereon so as to withdraw the lateral support to plaintiff’s lot (and [371]*371-such a position is very questionable under the decisions in this state), and yet the facts alleged in the petition make no case.

The gravamen of the charge in cases of this nature is, and must of necessity be, that defendant, owning the land immediately adjacent to the plaintiff’s, dug away and excavated-so near the plaintiff’s lot as to withdraw the support to the soil in its natural condition, and that in consequence thereof it fell into such pit or excavation to the plaintiff’s damage. It is this digging away the soil so near plaintiff’s property as to cause it to fall away that makes up the wrong committed, and for which in such cases damages have been awarded. But the facts alleged in this petition make no such case. It is not alleged that_defendant made the excavation. Defendant is not charged withTTiaiühg"dug’t’Ee pit or excavated on the right of way so as to cause this sliding away of plaintiff’s lot. Who may have done this does not appear. The extent of defendant’s offending, as alleged in the petition, is, that during the five years preceding the institution of the suit it ran its trains and conducted its business on this railroad where such an excavation had been made, and neglected to erect a retaining wall so as“ to protect plaintiff’s lot, etc. For this defendant was not liable. As already said the plaintiff’s damage, if any is recoverable, was chargeable to the party who committed the wrong — to the individual or corporation who did, or caused to be done, the excavation complained of.

Judgment affirmed.

All concur.

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Bluebook (online)

53 Mo. App. 369, 1893 Mo. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/secongost-v-missouri-pacific-railway-co-moctapp-1893.