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

Rombauer, P. J., delivered the opinion of the court. The plaintiff, anterior to the date of the grievance .herein complained of, had constructed a railroad bank running southwardly for a distance of twenty-five miles :u.nd more in the valley of the Whitewater. The Whitewater is a stream of perpetual flow, draining a large . .area of country, and is about two hundred feet wide. At a certain point in its course a slough or bayou runs ,,out of it eastwardly nearly at right angles, which slough, at its junction with the Whitewater, has a width • of about one hundred and fifty feet, and a well-defined channel and banks for a distance of from four hundred to six hundred feet, and no more. This slough or bayou is known as the Thumb. The Thumb is not shown to be fed by any living springs, but in high water- the . waters of the Whitewater find a partial outlet through it, running through its defined channel for the distance above stated, and then spreading out through the timber and over the surrounding country without any defined .■channel. Across the Thumb and about one hundred and fifty feet from the eastern bank of the Whitewater, the plaintiff had on the line of its railroad constructed .ja truss bridge, resting on abutments. Thereafter, in the year 1886, part of defendants, who are county judges . of Cape Girardeau, contracted on behalf of the county with the other defendants, to erect as part of a county road a solid embankment across the Thumb at the 'point -.of its junction with the Whitewater, The defendant -contractors entered upon the performance of this work [623] and had nearly completed it when the plaintiff sued out a writ of injunction in this proceeding. [623] The annexed map which is in evidence shows the relative positions of these structures. The plaintiff’s petition or bill rests for its support upon the fact that the closing of the mouth of the Thumb, which it claimed to be a natural water-course, unavoidably raises the waters of the Whitewater in times of freshets, both below and above the mouth of the Thumb, and thereby endangers its railroad bank, which is built for a considerable distance in proximity of the Whitewater. The court granted a temporary restraining order, but upon final hearing, the above facts appearing, dissolved the injunction and dismissed the bill. This action is complained of as error. We see no error in this. The court was warranted in finding under the evidence that the Thumb was not a natural water-course, and that of itself was sufficient to warrant the decree rendered. Justice Bigelow, in Luther v. Winnisimmet Co., 9 Cush. 174, defines a water-course as “a stream of water usually flowing in a definite channel, having a bed or sides or banks, and usually discharging itself into some other stream or body of water.” It must be more than a mere surface drainage over the entire face of a tract of land occasioned by unusual freshets or other extraordinary causes. This definition was almost literally adopted by the Supreme Court of Wisconsin in Hoyt v. City of Hudson, 27 Wis. 661, and subsequently by the Supreme Court of this state in Benson v. Railroad, 78 Mo. 504. In Jones v. Railroad, 18 Mo. App. 253, 256, the Kansas City Court of Appeals, citing these cases, held that, “ certain swales or sloughs which were filled in time of freshets by the overflow of a stream” were not water-courses so as to subject a railroad company to an action for damages caused by closing their outlet with a solid bank. In McCormick v. Railroad, 57 Mo. 437, re-affirmed [624] in Abbott v. Railroad, 83 Mo. 271, it was held that an owner may improve his lands for any desirable enjoyment, and it makes no difference that the effect of such improvement is to change the flow of the surface water accumulating thereon, or falling on the surrounding country, so as to either increase or diminish the quantity of water which has previously flowed upon the land of the adjoining proprietors to their inconvenience or injury, and that “the same rule would apply to water flowing over the country which has escaped from the banks or natural channel of a running stream of water, by reason of a flood in the stream, occasioned by heavy rains or melting snows upon the surrounding country.” Under the law thus declared the Thumb is no watercourse. Plaintiff’s own evidence shows that its bed is from two to four feet higher than that of the Whitewater, it is fed by no living springs, and there is no pretense that it usually discharges itself into- some other stream or body of water, or that it usually flows at all. It is, in low water, a dry bed or gulch; in ordinary water, a wet slough, or stagnant pond, and only in times of freshets does it furnish an outlet or conduit for the water of the stream to and over the adjacent low lands. The plaintiff complains that the court erred in not permitting an amendment of the bill changing its-prayer to a prayer for a mandatory injunction. Since the plaintiff was entitled to no injunction at all under the evidence, it is needless to decide whether or not, upon a proper showing, such an amendment is proper. The only other complaint is, that the court erred in instructions given to the jury on the question of the measure of damages, upon their assessment after dissolution of the injunction. On this subject the court instructed the jury that the defendants were entitled to six per centum upon the money detained from them on their contract during the pendency of the injunction, from the date on which they would have completed the contract, until the date of the dissolution of the injunction, to reasonable counsel fees, and expenses and compensation for loss625 of time, if any, in defending against the injunction, and reasonable costs for putting the work into the same condition it was in when the injunction was served, provided the construction was proper in the first instance,-and the deterioration not due to faulty construction. Defendant’s motion specified these various items of damage, and claimed they amounted to fourteen hundred dollars, and the record recites that they introduced evidence tending to establish the several items of damage specified in their motion. The jury found a verdict of three hundred and fifty dollars. We see no error in this branch of the case. All concurring, the judgment is affirmed.