Union Trust Co. v. Cuppy

*761 The opinion of the court was delivered by Valentine, J.:

This was an action brought by I. C.. Cuppy against the Union trust company, of New York and the Missouri, Kansas & Texas railway company for damages-to the plaintiff’s land and crops, alleged to have been caused in the years 1876 and 1877 by the overflow of water on the plaintiff’s land, caused by the defendant’s damming, or partially damming, a natural watercourse. The facts appear to-be substantially as follows:

From sometime prior to the year 1870 down to the present time, the plaintiff has been the owner of the land upon which the damages are alleged to have been -farts. committed. Across this land a natural watercourse or stream flows, from west to east, and continuing easterly,, passes into the Neosho river. This stream is named “Little-creek.” In 1870 the Missouri, Kansas & Texas railway company constructed a railroad, not quite a mile east of the plaintiff’s land, running north and south, across this stream. At the place where the railroad track crossed this stream the-channel of the stream from bank to bank was about one hundred feet wide. One witness stated that it was from one-hundred and twenty-five to one hundred and thirty feet wide. The railroad company filled up this channel, and immediately south of the channel built a culvert thirty feet wide. This culvert is something less than one mile east of the plaintiff’s land, and between his land and the Neosho river. Little creek is a small stream,'but in times of floods- and freshets a large amount of water flows through its channel. This has been so for years. A short distance north of Little creek is another stream, called “ Owl creek,” and in-times of high water Owl creek overflows its banks and a portion of its waters runs across the low lands between Owl creek and Little creek, and into Little creek. This has also-been so for years. Indeed, it has been so ever since the country was settled; and this fact is within the knowledge of all persons who have resided in that vicinity for any great length. *762 of time. It was known to be so for several years before the Missouri, Kansas & Texas railroad was built. At the times the damages of which the plaintiff complains were sustained, the waters in both creeks were very high, and a portion of that of Owl creek passed over from Owl creek and into Little creek, and flowed down, with the water of Little creek, to the railroad track. When the water reached the railroad track where the track crossed the old channel of Little creek, the water turned southward, almost at right angles, and passed to the small culvert built by the railroad company ; but as this culvert was too small for the amount of water flowing to it to pass through it readily, the water necessarily backed up, higher and higher, until it reached back to and covered nearly all of the plaintiff's land; and by this means the injuries of which the plaintiff complains were caused. The plaintiff sustained damages in this manner in both the years 1876 and 1877. Afterward the railroad company built another culvert, of two spans, immediately north of the old one, each span being forty feet wide, making the entire passage-way for water, including both culverts, one hundred and ten feet wide; and these two culverts together are hardly sufficient to carry off all the water that passes down Little •creek at times of very high water.

I. We think the jury were amply justified in finding that the original culvert, thirty feet in width, constructed by the railroad company in 1870, was manifestly insufficient. Upon this subject, and upon the facts of the case, the court below instructed the jury as follows:

“Railroad companies, in the construction of their roads over watercourses, are required to leave such water-ways or openings as are sufficient to afford an outlet for all water that may reasonably be expected to flow through such watercourse. And this must be with reference to such unusual and extraordinary freshets as might reasonably have been expected, after careful inspection of the size of the stream, the width of its bottom, the height of its banks, its capacity for carrying water, .and the surface of the country contributing to its flow; and if they fail to do so, they are liable in damages to the full *763 injury occasioned thereby. A railroad company, however, is not bound to anticipate extraordinary changes of seasons, nor such unusual freshets, or heavy falls of water as could not be detected by a skillful engineer after carefully taking the observation to which I have just referred, nor to guard against every possible contingency. So that if you find that the damage sustained by plaintiff was the result of such extraordinary rainfalls or freshets, or inundations, as could not be apprehended in the manner referred to, and if you also find that the defendants were not otherwise in fault, the plaintiff cannot recover, and your verdict should be for the defendants.”

This instruction, we think, is correct; or at least it is not erroneous as against the plaintiffs in error, defendants below, and is as favorable to them as they had any right to expect or demand.

II. With reference to the waters of Owl creek, the court below instructed the jury as follows:

“Some testimony has been introduced tending to show that at the times of the plaintiff’s alleged injuries, the water of Owl creek overflowed its banks, and rushed with considerable force and volume into the valley of the stream in controversy, and upon the lands of plaintiff.

“With reference to this matter, you are instructed that the railroad company was not bound to construct its culvert for the passage of such water, unless the examinations to which I before referred, made by a skillful engineer, would reasonably lead him to anticipate such a result; so that if you believe the damage claimed by plaintiff was sustained in consequence of these waters from Owl creek, thus breaking through and overflowing its banks, and that such a result could not have been anticipated from the requisite observation, made at the time the culvert was constructed, and was not brought to the knowledge of the defendants before the plaintiff sustained the damage complained of, the plaintiff cannot recover, and you should find for the defendants.”

This instruction we also think is correct; or at least, it is not erroneous as against the plaintiffs in error, defendants below. The court had previously instructed the jury that the defendants were not liable for any obstruction or damming up of mere surface-water; so that the jury were particularly informed that unless the waters of Owl creek which flowed *764 across the low grounds and into Little creek had become a part of the waters of Little creek, the plaintiff could not recover. We think the water flowing from Owl creek into Little creek was undoubtedly the water of a natural watercourse before it left Owl creek. It perhaps became surface-water while passing from Owl creek to Little creek; but it became the water of a natural watercourse when it reached Little creek and passed into it; and the defendants then had no more right to obstruct it than they had to obstruct any of the other water of Little creek. Indeed, it is at least doubtful whether the defendants, or any person, would have had any right to obstruct this water, even while it was flowing from Owl creek toward Little creek, so as to injure the land or property of any upper proprietor. (Shane v. K. C. St. J. &c. Rld. Co., 71 Mo. 237 ; Carriger v. East Tenn. &c. Rld. Co., recently decided by the supreme court of Tennessee; McClure v. City of Redwing, [9. N. W. Rep. 767,] recently decided by the supreme court of Minnesota.)

Even while the water was thus flowing from Owl creek toward Little creek, it presented some of the characteristics of a natural watercourse, and can hardly be considered as presenting only the characteristics of mere ordinary surface-water. Upon the question, however, of liability for obstructing this water while it was passing from Owl creek to Little creek, we do not desire to express any opinion.

As to what constitutes a natural watercourse, see the case of Palmer v. Waddell, 22 Kas. 352 . The instructions of the court below are in harmony with this decision. With reference to the right of railroad companies to construct their roads across natural watercourses, see the 4th subdivision of §47 of the act concerning corporations. (Comp. Laws of 1879, p. 224.) This subdivision provides, among other things, that any railroad company shall have the power “ to construct its road across, along or upon any stream of water, watercourse, street, highway, plank road or turnpike, which the route of its road shall intersect or touch; but the company shall restore the stream, watercourse, street, highway, plank road or turn *765 pike thus intersected or touched, to its former state, or to such state as to have not necessarily impaired its usefulness.”

III. The plaintiffs in error (defendants below) also claim that whatever cause of action the plaintiff may have had, that it was barred by the statute of limitations before this action was commenced. We hardly think that this question is sufficiently raised to require any consideration; but as in our opiuion the cause of action was not barred, we will proceed to consider the question.

The plaintiffs in error say that the gravamen of the action is the improper or negligent construction of the culvert, and its maintenance in that condition; that the testimony shows that the culvert was built in 1870, and that the record shows that this action was not commenced until May 28, 1878. Whether the plaintiff had any cause of action at the time of the building of the culvert or not, it is not necessary in this case to determine; for the building of the culvert is not the gravamen of this action. The foundation of this action is the obstruction of a natural watercourse, causing damage to the plaintiff; and the cause of this obstruction was, the filling-up of the natural channel of such watercourse. The building of the culvert did no injury. It assisted as far as it could in avoiding the injury; and if it had been made about four times wider than it was, probably the injury would not have happened. The defendants had a right to construct and maintain their culvert; but it should have been a much larger culvert; and they had no right to fill up the natural channel of the watercourse, or to obstruct its waters, as they did. (See subdivision 4 of §47 of the act concerning corporations.) It must also be remembered that the railroad was not built across the plaintiff’s land. The defendants did not commit any trespass upon the plaintiff’s land, or even enter upon it; and the plaintiff did not and could riot obtain any compensation by virtue of any statutory condemnation proceedings, or any proceedings instituted under or by virtue of the right of eminent domain. The wrong committed by the defendants, or either of them, in the year 1870 or afterward, was in the *766 nature of a nuisance, and a continuing nuisance; and while possibly the plaintiff might at any time have had an action to abate the nuisance, yet he nevertheless had the right to sue at any time after any particular damage was done him, for the amount of such damage. It is possible, also, that the plaintiff might have waived his right at any time to consider the obstruction of the stream as a nuisance, and might have considered it as giving to the defendants a permanent right, a permanent easement upon his land, and might then have sued the railroad company for the permanent injury to his land, and recovered for the injury as in a condemnation proceeding ; but he was not bound to treat the obstruction as an easement, or to waive his right to treat it as a nuisance, and he has not done so; and therefore, whenever he sustains damages because of such obstruction or nuisance, a cause of action arises in his favor; and the statute of limitations does not commence to run on such cause of action until the cause of action has accrued. On this subject, see Angelí on Limitations, §300.

IV. The plaintiffs in error claim that there was á misjoinder of parties defendant in the court below. This question was not raised in the court below, and we do not think that it is necessary to decide it in this court. Witlrreference to this question, the court below certainly did not commit any substantial error.

V. The plaintiffs in error also claim that no cause of action was proved against the Union trust company of New York. We think the proof was ample, and that the findings of the jury were sustained by sufficient evidence. The plaintiff set forth in his petition two causes of action, one for damages sustained in the summer of 1876, and the other for damages sustained in the summer of 1877; and the evidence showed that he sustained these damages, as alleged, except that the damage in 1876 was sustained in the month of May, and the damage in 1877 was sustained in the month of June. The evidence also seems to show-that in July, 1876, the Union trust company of New York, by virtue of a contract with the *767 Missouri, Kansas & Texas railway company and others, entered into and took possession of all and singular the property and franchises of the Missouri, Kansas & Texas railway company, and held and managed the same as a trustee or mortgagee of the property under the contract above mentioned, for the benefit of the Missouri, Kansas & Texas railway company and its creditors, and paying the Missouri, Kansas & Texas railway company one thousand dollars per month; and that by such contract the Union trust company was to be held responsible only “ tor good faith ... in the management, care and disposition ” of such property. It is claimed that the evidence does not prove, or tend to prove, that prior to the damage sustained by-the plaintiff in June, 1877, that he notified the Union trust company of the defective condition of the culvert, or that any request was made upon the company to remedy or abate the same; but the evidence does show that the Union trust company had full knowledge of all these matters, independent of any such notice. Upon this question the court below instructed the jury as follows:

“And now with particular reference to the defendant, the Union trust company, you are instructed that, while it may not have constructed the culvert in question, it would still be liable for any damage occurring during the time the said trust company had charge of the road, occasioned by its wrongful construction, if you find that prior to such injury the said company had actual knowledge that the culvert in question was constructed in such a way as to overflow and flood the land above said culvert, and knowing such fact, still maintained said culvert in such condition. But without this knowledge, the Union trust company would not be liable.

“It is not necessary, in order to hold defendant, the Union trust company, liable for the damage claimed to have been sustained in 1877, that any request should have been made by plaintiff to said trust company to remodel said culvert. All that would be necessary would be for plaintiff to show that defendant, the trust company, knowing the damage likely to be occasioned by the culvert, permitted it to remain in such condition.”

This instruction we think is correct. Both the Missouri, *768 Kansas & Texas railway company and the Union trust company were liable for the injuries sustained by the plaintiff in 1877. These injuries are founded in tort, and all parties partic■ipating'in the tort are liable. The Missouri, Kansas & Texas railway company is liable as principal, and as the original ■cause of the injuries; while the Union trust company is liable .as agent, and as the immediate and direct cause of the injuries; and no contract between the Missouri, Kansas & Texas ¡railway company and the Union trust company could relieve the Union trust company from its liability for the commis•sion of the wrong. All parties in the commission of a wrong .are equally liable.

It is also urged that the Union trust company was entitled to'express notice of the insufficiency of the culvert. We do not think that they were necessarily entitled to such notice. Actual knowledge of such insufficiency, we think, is all that was necessary; and that they had actual knowledge, was abundantly shown. That actual knowledge in such cases is suffi•cient is sustained by abundant authority. (See the cases cited in the brief of defendant in error.)

VI. The plaintiffs in error also claim that no cause of action was proved against the Missouri, Kansas & Texas railway company. And upon this question we also think that the proof was ample, and that the findings of the jury were .sustained by sufficient evidence. Upon this question the court, instructed the jury as follows:

“The defendant, the Missouri, Kansas & Texas railway ■company, at the time it constructed its road, was not bound to build culverts or aqueducts for the purpose of draining adjacent lands, nor for the purpose of giving passage to the natural flow of surface-water; nor is the said defendant liable in an action for damages occasioned by the accumulation of surface-water, on account of any embankment erected on its right of way; nor by the fact that a culvert could have been placed in such embankment to have afforded an outlet for all such surface-water; nor by the fact that a culvert was placed therein insufficient to afford such outlet; and if you find that the damage claimed by the plaintiff was caused by the accumulation of surface-water on account of any obstruc *769 tion to its natural flow created by defendant, then I instruct you that the plaintiff in this case cannot recover, and you must find for the defendant.

“It was the duty of the defendant, the Missouri, Kansas & Texas railway company, in constructing the culvert in question, to provide for the free flow of such amount of water as might reasonably have been anticipated to flow in said stream; and if by reason of the failure of said defendant to perform such duty the plaintiff sustained any injury, the said defendant, the M. K. & T. Rly. Co., would be liable for such injury, even if at the time of the injury the management of the road had passed out of the hands of the M. K. •& T. Rly. Co. into those of the receiver or of the Union trust company/5

It is the latter portion of this instruction to which the plaintiffs in error, defendants below, especially object; but we think the instruction is correct. And we think that both causes of action alleged against the Missouri, Kansas & Texas railway company were amply proved. That the Missouri, Kansas & Texas railway company is liable for the injury that occurred during the time that the property was in the hands of a receiver, we think is settled by the case of K. P. Rly. Co. v. Wood, 24 Kas. 619 ; and that it is liable for the injury that occurred during the time that the property was in the hands of the Union trust company of New York, we think is also settled by abundant authority in other states. See among others, the case of Lohmiller v. The Indian Ford Water Power Co., 51 Wis. 683 . See also authorities cited in the brief of counsel for defendant in error.

VII. Plaintiffs in error also claim that neither the insufficiency of the culvert nor any acts of the defendants in damming or partially damming Little creek, had anything to do with causing the damages sustained by the plaintiff. This was a question of fact for the jury, and the jury found against the defendants — and we think upon abundant testimony.'

VIII. The plaintiffs in error also claim that the findings and judgment were in excess of the amount claimed in the plaintifffs petition. This, we think, is not true. The judgment is for $1,000 against the Missouri, Kansas & Texas *770 railway company, and for $500 against the Union trust company; but the record shows that the judgment against the Union trust company is for $500 of the same amount for which judgment is rendered against the Missouri, Kansas & Texas railway company, and that whenever the judgment against the Missouri, Kansas & Texas railway company shall be extinguished or satisfied, it will extinguish both judgments; or that whenever the judgment against the Union trust company shall be extinguished or satisfied, it will satisfy $500 of the judgment rendered against the Missouri, Kansas & Texas railway company; so that in fact the judgment rendered against both defendants really amounts in the aggregate to only $1,000, while the petition claimed judgment for $1,380.

This, we think, disposes of all the questions raised by counsel; and finding no material error in the record, the judgment of the court below will be affirmed.

All the Justices concurring.