Opinion
No. 28163.
June 19, 1951.
APPEAL FROM THE CIRCUIT COURT, FRANKLIN COUNTY, RAMSOM A. BREUER, J.
Theodore P. Hukriede, Washington, for appellants.
Ragland, Otto, Potter Carson, Jefferson City, Leon P. Embry, California, for respondent.
This is a landowners' action for damages against a railroad for negligently flooding lands abutting the right of way. This appeal is from the judgment of the circuit court sustaining defendant's motion for judgment on the pleadings.
A motion for judgment on the pleadings raises only issues of law and will lie only when the moving party, on the face of the pleadings, is entitled to judgment as a matter of law, Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936; Baker v. Lamar, Mo.Sup., 140 S.W.2d 31, so that our task is to determine as a matter of law, first, whether plaintiffs' petition states a claim upon which relief can be granted and, if so, secondly, whether defendant's answer sets up a good defense and whether the facts constituting the defense are admitted in plaintiffs' reply. If either determination is adverse to plaintiffs, the judgment must be affirmed. Turner v. Browne, 351 Mo. 541, 173 S.W.2d 868.
The petition, after setting forth the ownership of the lands by plaintiffs, that they adjoin the northeasterly property line of the railroad, and the corporate entity, bankruptcy, and defendant's status as trustee of the road, continues as follows:
"3. Plaintiffs further state that for many years prior to the year 1926, the Missouri Pacific Railroad Company operated its trains over a right of way through the lands of plaintiffs' predecessor in title; that in the year 1926, said Railroad Company, by purchase, acquired title to a new and different right of way and commenced the construction of road bed and laying of tracks for the operation of trains over said new right of way; that in so doing, an embankment was constructed which was an obstruction to the surface waters which came from the hills and bluffs situated immediately to the south of the said right of way and which said water had followed the natural drainage from the South to the North, through and over a creek then existing and towards the main channel of the Missouri River; that an opening was made through said embankment and at the point of said opening on the North side of the embankment a ditch was excavated upon the right of way and in a generally easterly direction so that said water, upon being discharged through the opening, would flow through said ditch to St. Johns creek, the principal drainage channel through the surrounding territory, and follow said creek to be discharged in the Missouri River; that at said time, an embankment was constructed along the entire length of said ditch as a part of the North Bank thereof and immediately to the South of and adjacent to the real estate now owned by these plaintiffs; that from the time of said excavation and construction until the month of July, 1948, the Missouri Pacific Railroad Company and the defendant caused the North bank of said ditch to be raised to a greater height than the original construction and repaired and maintained said embankment.
"4. That by the construction and maintenance of said ditch with raised North bank and connection with said St. Johns Creek, as aforesaid, said ditch was caused to hold, contain and carry back water from the Missouri River in addition to the waters draining from the South, all of which the defendant knew, or by the exercise of ordinary care could have known.
"5. That in the month of July, 1948, the surface waters collected in and flowing through said ditch broke through the North bank of said ditch and caused an opening in the same of the approximate width of Fifty (50) feet, immediately adjacent to the lands of plaintiffs and at a point where there was not another ditch, drain or water course.
"6. That said opening was not repaired and the embankment not maintained from and after that date; that during the month of May, 1949, the surface waters collected in such quantity and flowed through and in said ditch in such volume that it could not be carried in said ditch and flowed through the said opening and in the embankment and over and upon the lands of plaintiffs, where there was not another ditch, drain or water course, causing one hundred fifty (150) acres of the same to be flooded and the crops growing thereon to be destroyed.
"7. That the flooding of plaintiffs' land, with resulting damages to crops, was the direct result of the negligence and carelessness on the part of the defendant, in that the defendant carelessly and negligently failed to maintain said embankment and repair the opening in the same when the defendant knew, or by the exercise of ordinary care upon his part could have known, that the surface waters would collect in said ditch in such quantity and volume so as to flow through said opening and over and upon the lands of plaintiffs.
"8. That the flooding of plaintiffs' lands, with resulting damages to their crops, was the direct result of the defendant carelessly and negligently causing the surface water to be collected upon the right of way of the Missouri Pacific Railroad Company under his charge and control, accumulated in a body, carried over said right of way to a point adjacent to the lands of plaintiffs and carelessly and negligently discharged, thrown and precipitated upon their said lands, where there was not another ditch, drain or water course."
The petition concludes with allegations of damages to crops and land, and a prayer for $6,500 damages.
Defendant, after pleading several defenses which were denied by plaintiffs' reply and therefore form no part of this inquiry, proceeds to allege that by deeds dated April 4, 1947 plaintiffs and defendant exchanged certain real estate and that the deed from defendant to plaintiffs contains the following provision: "The parties of the second part, for themselves, their heirs, executors, administrators and assigns, and as one of the considerations for the conveyance hereby made, covenant and agree with the party of the first part, his successors and assigns, that the capacity of the ditch as at present constituted on right of way of the party of the first part and running relatively parallel to the hereinabove described lands contemporaneously herewith conveyed by parties of the second part to party of the first part, is sufficient, and shall forever be deemed and held to be sufficient and adequate for the flow of water from whatsoever source arising or occurring, and that the levee protection as now installed by the party of the first part lying adjacent to the said ditch on the northeast, is and shall forever be deemed and held to be sufficient and adequate for the protection of the lands lying to the north and east of said levee from the overflow of water from whatsoever source arising or occurring."
Plaintiffs in their reply admit the exchange of real estate on that date and that their deed contains that provision.
First, does the petition state a claim upon which relief can be granted?
R.S.Mo. 1949, Section 389.660 provides: "It shall be the duty of every * * * person * * * operating any railroad * * * to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains and watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad wherever the draining of such water has been obstructed or rendered necessary by the construction of such railroad; * * *."
Respondent contends that the petition states no claim because it fails to charge the flooding of plaintiffs' land in a manner for which the railroad would be liable, or by water for the disposition of which the railroad was responsible; that the petition charges the railroad with nothing more than compliance with statutory requirements; that when it complies with the statute it should be relieved of liability, under the doctrine of White v. Wabash R. Co., 240 Mo.App. 344, 207 S.W.2d 505; that the railroad is responsible only for "water flowing down from the south side and obstructed by the road bed embankment"; that defendant is not responsible for backwater and that the offending water referred to in the petition is backwater.
It is our opinion that the petition states a claim upon which relief can be granted. The purpose of the statute, R.S. Mo. 1949, Section 389.660, is to prevent injury to adjoining landowners from the accumulation of waters along the railroad when the drainage of such water has been obstructed or made necessary by the construction of the railroad. The building of the railroad embankment and its consequent obstruction of the natural flow of surface waters coming from the hills south of the right of way is alleged, as is the making of an opening through the embankment, the construction of a ditch along the right of way through which the water coming through the opening in the embankment would flow to connect with St. John's Creek, a principal drainage channel, and thence to the Missouri River, that an embankment was built along the ditch "as a part of the North bank thereof" and that at all times from 1926 until July, 1948 the railroad "caused the North bank of said ditch to be raised to a greater height than the original construction and repaired and maintained said embankment."
The allegation of these facts brings the case squarely within the provisions of Section 389.660. giving rise to a statutory duty on the part of the railroad to maintain that drainage system in such manner "so as to afford sufficient outlet to drain and carry off the water * * *" for the protection of adjoining landowners. The breach of that duty is alleged in paragraphs 5, 6 and 7 of the petition, reciting that in July, 1948 an opening broke through the north bank of the ditch causing a 50 foot opening; that the railroad did not repair the opening or maintain the embankment thereafter; that in May, 1949 surface waters collected in the ditch in such volume as to flow through the 50 foot breach in the north embankment, thereby flooding plaintiffs' lands, to their damage. If these facts are true, and for the purpose of ruling on the motion for judgment on the pleadings and of this review we must assume their truth, Zimmerman v. Jones, Mo.App., 236 S.W.2d 401, loc. cit. 403, and there are no valid defenses, plaintiffs are entitled to the relief they seek.
The gravamen of the charge is negligent maintenance. In this respect the case of White v. Wabash R. Co., supra, cited by defendant, is clearly distinguishable. In that case the court said, 207 S.W.2d loc. cit. 511: "Plaintiffs did not allege or rely upon any negligent act or acts of the defendant in doing a lawful thing, i. e., the construction of its roadbed, together with ditches and outlets, over land where it had the right to construct the same. If plaintiffs can properly plead and prove some negligence on the part of the defendant resulting in damage to them, then they would be entitled to recover."
The claim that the petition charges nothing more than compliance with the statutory requirements is untenable. The statute cannot be used as a license or authority upon the part of the railroad to inflict injury by causing surface waters to be accumulated upon its right of way and discharged upon an adjoining landowner. Grant v. St. Louis, I. M. S. R. Co., 149 Mo.App. 306, 130 S.W. 80, loc. cit. 82.
The argument that the railroad is responsible only for water flowing from the south and is not responsible for backwater is answered by the allegations of the petition that "surface waters" cut the 50-foot opening in the embankment and that "Surface waters" came through the opening and damaged plaintiffs' lands. "Surface waters" are identified in paragraph 3 of plaintiffs' petition as those "which came from the hills and bluffs situated immediately to the south of the said right of way." Incidentally, if the pleadings raise any issue of fact on the question whether it was surface waters or backwater which caused plaintiffs' damage, the motion for judgment on the pleadings should be denied. Hunter v. Delta Realty Co., supra.
The next question is whether the quoted portion of the deed dated April 4, 1947, supra, constitutes a good defense. It is agreed by all parties that the "ditch" referred to therein is the same ditch, and that the "levee" and "levee protection" referred to therein is the same as the embankment through which the 50 foot breach was made, as referred to in the petition. The railroad claims this provision relieves it of any further responsibility or duty with respect to the ditch or the embankment; that by it plaintiffs contracted away any rights they might have had to any other, further or more adequate water protection; that the railroad thereby was "completely and forever released from" any duty to maintain the embankment on the north bank of the drainage ditch. Plaintiffs claim that this provision "does not constitute a release of the railroad company from damages that thereafter might result from the negligence of the respondent and therefore, from the wording itself, would not be a bar to this action," and that in any event the provision would be void as against public policy.
We need not pass on the latter question for the reason that in our view the provision pleaded by defendant is not defensive to this claim. The charge in this petition, simply stated, is negligent maintenance of the ditch. This contract does not, in terms or by necessary inference, exempt the railroad from liability for negligent maintenance of the ditch. Such contracts are strictly construed against the party relying on them, and clear and explicit language in the contract is required in order to absolve a person from such liability. 17 C.J.S. Contracts, § 262, page 644. This contract is not a release of liability from damages to occur in the future, within the rule of American Central Ins. Co. v. Chicago Alton Ry. Co., 74 Mo.App. 89, cited by respondent, wherein the contract provided, 74 Mo.App. loc. cit. 94, that: "* * * first party shall in no case be held pecuniarily liable for damage to said warehouse or to the contents thereof by fire from any cause whatsoever, * * *." No such positive, exonerating language is to be found in the provision under study. Nor does it constitute a contract of indemnity such as appears in the cited case of Ordelheide v. Wabash R. Co., 175 Mo. 337, 75 S.W. 149, where the plaintiff agreed to "assume all risk of fire from every cause, and shall hold and keep harmless said first party from any and all damages whatsoever, from fire or any other cause, to any building or buildings that may be erected on the land herein leased, * * *." 175 Mo. loc. cit. 340, 75 S.W. loc. cit. 150.
The fact is that neither party to this agreement agreed therein to do anything or to relieve the other party of any then existing duty. Stripped of nonessentials it is nothing more or less than a written acquiescence and formal declaration that the ditch "as at present constituted" is and will be sufficient and adequate for all waters, and that the embankment "as now installed" is and will be sufficient and adequate to protect plaintiffs' lands from any overflow of waters. It is a declaration concerning the status quo and the satisfaction of the parties therewith. Such a declaration concerning the adequacy of the installations as of April, 1947 constitutes no bar to an action for subsequent negligence arising out of the new and wholly different conditions existing in May, 1949. Even if this unusual provision, by any stretch of legal imagination, could be regarded as exculpatory, such exclusion from liability necessarily would depend upon the continuation of the existence of the ditch and embankment in its condition on April 4, 1947. The embankment, intact then, was quite different from the embankment at the later date, with a 50 foot breach therein, as described in the petition. The declaration itself was founded and dependent upon the continued existence of the ditch "as at present constituted" and of the embankment "as now installed."
Therefore, although the execution of the provision was admitted in the plaintiffs' reply, it was not defensive matter, and did not destroy the cause of action well pleaded in the petition. It follows that the circuit court erred in rendering judgment for defendant on the pleadings, and the Commissioner recommends that the judgment be reversed and the cause remanded to the circuit court for trial.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, reversed and the cause remanded for trial.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.