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Saltus V. Everett, 20 Wend. 268, 284 : Mowrey v. TFofeA, 8 Cow.
238; Root v. Frenchy 13 Wend.' 570.

It is further objected that this doctrine, when applied to non-
negotiable paper, in effect puts it on the same footing with negotia-
ble instruments. To this it may also be replied in the language of
Judge Groveb, of the Court of Appeals of New York, in Moore v.
Metropolitan Bank, bo X. Y. 48 ; s. c, 14 Am. Eep. 173, that it has
no such effect. ** No one pretends," says Judge Grover, " but that
the purchaser of non-negotiable choses in action will take them sub-
ject to all defenses, valid as to the original parties, nor that the mere
possession is any more evidence of title in the possessor than is that
of a horse. In both respects the difference between them and nego-
tiable instruments is vital, and not at all affected by the application
of the same rule as to chattels." The learned judge then proceeds
to examine the New York cases, and after overruling that of Bush
V. Lathrop, 22 N. Y. 535, on this point, and reiterating the doc-
trines in McNeil v. Tenth National ^an^, to which we have already
referred, concludes, that 'Uhe bank, if it made the loan to Miller
lU good faith, upon the credit of the certificate, acquired a title
thereto, valid against the plaintiff to the extent of the loan." That
being our conclusion in regard to the claim of the International
Bank of St. Louis, the judgment of the Court of Appeals is reversed,
and the case is remanded to the Circuit Court to enter judgment in
conformity with this opinion.

Judgment reversed.

All concur.

Shake v. Kansas City, etc., Bailroad Oompaiix

(71 Mo. 837.)

Wetter and water-courses — surface water — diversion of,

A riparian owner has no right bj erecting an embankment to divert tbe i
ral course of water overflowing from a river in time of freshet, and torn H
upon the land of his neighbor. (See notCt page 490.)

Digitized by


OCTOBER TERM, 1879. 481

Shane v. Kansas Citj, etc.. Railroad Company.

ACTION of damages for injury by surface water. The opinion
states the facts. The plaintiff had judgment below.

B, F. Stringfellow, for appellant.

Napton, J. This action was to recover damages from the
defendant for the destruction of five acres of vegetables the plaint-
iff had in the Missouri river bottom, charged to have been occa-
sioned by the embankment of defendant's road-bed constructed
across a slough, without any culvert, by reason of which in the
summer of 1873 a rise in the Missouri river and heavy rain-falls in
the vicinity were prevented from pursuing their accustomed natu-
ral channel to a lake and thence to the river again. By reason of
this obstruction the waters of the overflowed river and the exces-
sive rains were thrown upon the plaintiff's land and destroyed his
crops. We insert the testimony and the instructions, from which
the points in issue will be more readily ascertained than from the
details of the petition.

[Omitting the testimony.]

Thereupon the court of its own motion gave the following
instnictions to the jury:

1. If the jury believe from the evidence that for a number of
years prior to the building by defendant of its railroad in Clay
county, there existed south of plaintiff's premises a natural drain or
slough, through which the surplus water of the Missouri river in
high stages usually and naturally passed without overflowing plaint-
iff's land, and that in constructing its said railroad defendant made
an embankment across said drain so as to obstruct and dam up
the surplus water of said river so flowing in said drain, and that by
reason of said obstruction the surplus water of said river in the
year 1873, during a high stHge thereof, was by reason of said em-
bankment obstructed, dammed up and precipitated upon the land
of plaintiff, thereby destroying or injuring his crops growing or
being thereon, and depriving him of the use of the building on the
same, then they must find for the plaintiff and assess his damages
at the market value of said croj)8 at the time on the ground, and
the monthly value of the buildinfjs during the time he was neces-
sarily deprived of their use, and the necessary expense of removing
from and returning to the saine, with six per cent interest per
annum from the time of said injury, jn'ovidcd the jury also believe
Vol. XXXVI— 61

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Shane v. Kansas City, etc.. Railroad Gompanj.

from the evidence that the defendant by the construction of a cul-
vert or other means of escape for said water, at a reasonable expense
and without injury to its said road, could have thereby prevented
said injury to plaintiff.

2. Water which escapes from the banks or natural channel of a
running stream by reason of a flood in the stream occasioned by
heavy rains or the melting of snow, is not subject to the law appli-
cable to running streams, but is like surface water, and it may be
obstructed or its course changed by the erection of banks necessary
for u road-bed, without subjecting the defendant to damages for in-
jury caused by such obstruction.

3. If the jury find that the injury complained of was caused by
an embankment erected by defendant, and which was a necessary
and proper embankment for the construction of defendant's rail-
road, they will find for defendant

To the giving each of which instructions the defendant objected,
and its objection being overruled, excepted.

The defendant thereupon asked the court to give the following

1. If the jury find from the evidence that the obstruction to the
flow of water complained of in the petition was an embankment
erected by defendant for its road-bed, and the same was erected
several years before said injury and had been used for such road-bed
from its erection to the date of such injury, they will find for de-

2. The defendant had tlio right in constructing its road to throw
up embankments across low places, and thereby to obstruct the
passage of water which in times of floods might overflow the banks
of a stream and flow against defendant's road, and is not liable for
injury from sucli obstruction.

3. Defendant was not bound to construct culverts or ways for the
passage through its road-bed of water, which in times of floods
should pass out of or over the banks of some stream adjacent to
such road but not obstructed by such road-bed, and is not liable
for damages caused by such failure.

4. If the jury find that the injury complained of was caused by
an embankment erected by defendant, and which was a proper em-
bankment for the construction of defendant's road, they will find
for defendant.

5. Water which escapes from the banks or natural channel of a

Digitized by


OCTOBEli TEKM, 187y. 483

Shane v. Kansas City, etc.. Railroad Company.

running stream, by reason of a flood in the stream occasioned bj
heavy rains or the melting of snow, is not subject to the law appli-
cable to running streams, but is like surface water, and it may be
obstructed by the erection of banks necessary for a road-bed, with-
out subjecting the defendant to damages toy injury caused by such

6. Defendant had the right to construct its road-bed in the
usual and proper manner by throwing up and raising the ground
for its way-bed and erecting ditches along the side to keep the
water off from the track of the road ; and if defendant made its road-
bed and ditches with reasonable skill, and plaintiff was accidentally
injured thereby by the flow of water overflowing the banks of the
Missouri in an excessive flood, as charged in the petition, he can-
not recover.

All of defendant's instructions except the sixth, were refused.

The plaintiff had a verdict for $450, and after a motion for a new
trial and in arrest, judgment was entered and appeal taken to this
court It is hardly necessary to observe to those who are familiar
with the decisions in the United States concerning surface water,
that an irreconcilable difference of opinion has exhibited itself in
regard to the rights and duties of adjoining proprietors of land.
This difference may be traced, I imagine, to the great importance
attached by the courts on one side to the maxim " sic utcre tuo ut
alienum non IcBdas,^^ whilst those adopting a contrary view seem
disposed to give unlimited effect to the maxim '^ cu jus est solum,
ejus est usque ad cesium ,'' and therefore leave every proprietor to
take care of himself, except where living streams are concerned.
The case of McCormick v. K. C, St. Jo. £ C. B. R, R., 70 Mo. 359;
8. c, 35 Am. Rep. 431, essentially depends on the same principles,
governing the present case. The facts in that case, it is true, are
quite the converse of those now to be considered, but the principle
involved is the same. That case was one where the owner of the
dominant heritage collected the surface water, percolating through
a thousand channels, by an embankment, into a mass, and through
a culvert in the embankment precipitated it thus accumulated upon
the servient or lower heritage. This case is where the owner of the
servient heritage by artifical obstacles stops the flow of the surface
water and thrown it back from its natural channel upon the owner
of the higher ground.

The decision referred to adopts the principles decided in Penn-

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Shane v. Eansaa City, etc.. Railroad Company.

sjlvania, New Jersey, Ohio, Illinois, Louisiana, North Carolina
and Iowa, said to bo traced to the civil law, but from whatever
source derived, in our judgment, based upon sound reasons of
equity and justice, which are summarily stated by Pothier in the
following words: '^Efich. of the neighbors may do upon his
heritage what seemeth good to him, in such manner, nevertheless,
that he doth not injure the neighboring heritage." Kauffman v.
Griesefner, 26 Penn. St. 411 ; Earl v. Dellart, 12 N. J. Eq. 280 ;
BvtUr V. Peck, 16 Ohio St. 334 ; 49 111. 487 ; Minor v. Wrighty 16
La. Ann. 151 ; Overton v. ISawyeVy 1 Jones L. 308 ; 21 Iowa, 161 ;
Martin v. Jetty 12 La. 501 . In the case of Livingston y. McDonald,
21 Iowa, 104, the Supreme Court of that State, through that
eminent jurist, Judge Dillon, carried the doctrine declared by this
court in McCormick v. K. (?., St. Jo. £ C, B. R. R.y to the extent
of determining that a subterraneous ditch which increased the
quantity of water upon the lower heritage, or, without increasing
the quantity, threw it upon the lower field in a different manner
from what it would have flowed naturally, made the proprietor of
the upper heritage responsible for the damage, and Judge Dillon
remarks in conclusion: ''We recognize the fact (to use Lord
Tenterden's expression) that surface water or slough water is a
common enemy which each land owner may reasonably get rid of
in the best manner possible ; but in relieving himself he must
respect the rights of his neighbor, and cannot be justified by an
act having the direct tendency and effect to make that enemy less
dangerous to himself and more dangerous to his neighbor. Ho
cannot make his estate more valuable by an act which unnecessarily
renders his neighbor's less valuable."

By the same reasoning, as was observed by the Supreme Court of
Illinois in OiUhavix. Mrdison Co.R. R. Co., 49 III. 487, the reverse
of the proposition must be true, that the owner of the lower heritage
cannot, by an embankment or other artificial means, obstruct the
natural channel through which the surface water is accustomed to
flow, and throw it back upon the upper proprietor. In a later case
in Illinois {Oormley v. Sanfordy 52 111.160), the decision in Oillham
V. Madison Co. R, R. was reiterated, and it was again held that the
owner of the servient heritage has no right, by embankment or
other artificial means, to stop the natural flow of the surface water
from the dominant heritage, and thus throw it back upon the latter.
The remarks of Mr. Justice Lawrence in this case are worthy of

Digitized by


OCTOBER TERM, 1879. 485

Shane v. Kansas City, etc., Railroad Companj.

observatioQ and apply a fortiori to the present case, and we there-
fore copy them : *' This question has already been decided by this
court in Oillham v. Madison Co. R, R. Co. * * * In the
opinion filed in that case we said, although there was a conflict of
authorities among the courts of this country, yet the rule forbidding
the owner of the servient heritage to obstruct the natural flow of
surface water was not only the clear and well settled rule of the
civil law, but had been generally adopted in the common-law courts
both of this country and in England. Various cases bearing on
each side of the question are cited in that opinion, and it is not
necessary to cite them again. This rule was thought by this court,
in that case, to rest upon a sound basis of reason and authority, and
was adopted. We find nothing in the argument or authorities pre-
sented in the present case, to shake our confidence in the conclusion
at which we then arrived. In our judgment, the reasoning which
leads to the rule forbidding the owner of a field to overflow an ad-
joining field by obstructing a natural water-course fed by remote
springs, applies with equal force to the obstniction of a natui*al
channel through which the surface waters, derived from the rain or
snow falling on such field are wont to flow. What difference does
it make in principle, whether the water comes directly upon the
field from the clouds above, or has fallen upon remote hills and
comes thence in a running stream upon the surface, or rises in a
spring upon the upper field and flows upon the lower? The cases
asserting a different rule for surface waters aud running streams
furnish no satisfactory reason for the distinction. It is suggested in
the argument, if the owner of the superior heritage has a right to
have his surface waters drain upon the inferior, it would follow that
he must allow them so to drain, and would have no right to use and
exhaust them for his own bcneflt or to drain them in a different
direction. We do not see why this result should follow. The right
of the owner of the superior heritage to drainage is based simply on
the principle that nature has ordained such drainage, and it is but
plain and natural justice that the individual ownership arising from
social laws should be held in accordance with pre-existing laws and
arrangements of nature. As water must flow, and some rule in re-
gard to it must be established where land is held under the artifi-
cial titles created by human law, there can clearly be no other rule,
at once so equitable and so easy of application, as that which en-
forces natural laws. There is no surprise or hardship in this, foi

Digitized by


486 Missouiii,

Shane v. KaDsas Citj, etc.. Railroad Company.

each successive owner takes witli whatever advantages or inconven-
iences nature has stamped upon his land."

I confess, for myself, that like Mr. Justice Lawrence, I am un-
able to perceive the distinction between surface water coming, as
he says, from the clouds, and that which rises in a spring, especially
in this case, where the surface water comes from the Rocky mountains*
a thousand miles from where the overflow of the Missouri river
occurs, occasioned as it is, not by rains or snows in its vicinity, but
by tlie melting of snows upon the mountains and by the accession
of a thousand tributary streams. But it must be considered as well
settled that this overflow of the Missouri is what is in law termed
surface water.

In Kauffman v. Gnesenier, 26 Penn. St. 408, the instructions of
the judge who tried the case were, that the water which the defend-
ant obstructed was not a living stream, but came from rains and
snows, but that the accustomed, though not continuous, flowago of
such water was in the eye of the law a stream and no more to be
obstructed than if it was a channel of a continuous stream that
never failed. These instructions were approved by the Supreme
Court, and that court observed that: "The plaintiffs had no right
to insist upon his receiving waters which nature never intended to
flow there, and against any contrivance to reverse the order of na-
ture ho might peaceably take measures of protection." In Martin
V. Riddle, 2G Penn. St. 415, Judge Lowkie says: *' Wherc two
fields adjoin, and one is lower than the other, the lower must nec-
essarily be subject to all the natural flow of water from the upper
one. The inconvenience arises from its position. ♦ * * Hence,
the owner of the lower ground has no right to erect embankments
whereby the natural flow of the water from the upper ground shall
be stopped, nor has the owner of the upper ground a right to make
any excavations or drains by which the flow of water is diverted
from its natural channel and a new channel made on the lower
ground, nor can he collect into one channel waters usually flowing
off into his neighbor's field by several channels, and thus increase
the wash upon the lower fields."

The Supreme Court of Ohio, in Butler v. Peck, 16 Ohio St. 343,
unhesitatingly adopted the principle thus decided in Pennsylvania.
The question in that case was " whether an owner of land having
upon it a marshy sink or basin of water, which basin, as to a con-
siderable portion of the water collected on it, has no outlet, may

Digitized by


OCTOBER TERM, 1879. 487

Shane t. Kansas City, etc.. Railroad Company.

lawfully throw such water by artificial drains upon the land of an
adjacent proprietor." The court say, " We are clear that no such
right exists. It would sanction the creation, by artificial means,
of a servitude which nature has denied. The natural easement
arises out of the relative altitudes of adjacent surfaces as nature
made them, and those altitudes may not be artificially changed to
the damage of an adjacent proprietor."

In North Carolina, the Supreme Court, in Overton v. Sawyer, 1
Jones L. 308. observed: ** The defendant had a right to have the
water allowed to pass off his land through the natural drain ; and
when the plaintiff, by means of the embankment across this natural
drain, obstructed the water and interfered with this right, this latter
(the defendant) had a cause of action against the former, for caus-
ing the obstruction."

What is said by the Court of Errors in New Jersey, in .the case of
Barl V. DeHart, 1 Beas. 280, seems to conform to Mr. Justice Law-
bexce's views in the Illinois case we have cited, and to apply to
the slough, or swale, or hollow through which the waters of the
river passed when they overflowed its banks, and across which the
defendant's road was built. The chancellor says: '^ The facts admit-
ted in the answer show that this is an ancient stream or water-
course, and that it is a natural water-course, in the etymological use
of the term. A water-course is defined to be a channel or canal for
the conveyance of water, particularly in draining lands. It may
be natural, as when it is made by the natural flow of the water
caused by the general superficies of the surrounding land from
which the water is collected into one channel, or it may be artificial,
as in case of a ditch or other artificial means used to divert the
water from its natural channel, or to carry it from low lands, from
which it will not flow in consequence of the natural formation of
the surface of the surrounding land. It is an ancient water-course,
if the channel through which it naturally runs has existed from
time immemorial. Whether it is entitled to be called an ancient
water-course, and as such legal right can be acquired and lost in it,
does not depend upon the quantity of water it discharges. Many
ancient streams of water, which, if dammed off, would inundate a
largo region of country, are dry for a great portion of the year. If
the face of the country is such as necessarily collects in one body so
large a quantity of water, after heavy rains and the melting of large
bodies of snow, as to require an outlet to some common reservoir.

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Shane v. Kansas Ciiy, etc. Railroad ComiMinj.

and if such water is regularly discharged through a well defined
channel, which the force of the water has made for itself, and which
is the accustomed channel through which it flows and has flowed
from time immemonal, such channel is an ancient natural water-

The court therefore held that where the surface of the ground
is such as to collect water at different seasons of the year to an ex-
tent which requires an outlet, and if such is always the case in tiroes
of heavy i*ains and melting snow, and if that flow of water pro-
duced u natural channel through the lands of different persons
where such accumulated surplus water has always been accustomed
to run, a court of equity would protect such channel from obstruc-
tion to the injury of any one through whoso land it runs. This
corresponds with the view of the judge in Kauffman v. Oriesemer.
The judge who tried this case observes: *^The declaration speaks
of a stream of water being used to flow. There is no stream in the
usually received sense of that word, as being a continuous flowage
of water. The water that flowed down was such as came from
springs which do not seem ever to have had a continuous flow that
reached defendant's land, and such as came from mins and snows.
But the accustomed, though not continuous flowage of water, is a
stream in the eye of the law, and its channel is no more to be ob-
structed than if it was the channel of a stream that never failed.

* * Whatever is the natural direction of the excess of waters
in floods and freshets, as in seasons of ordinary water, must be left
as nature has made it; no one has a right to divert it from him-
self and cast it upon his neighbor to save himself at the expense of

Of course the immemorial usage spoken of in the New Jersey
case can hardly be claimed here, since there was no witness in the
case who spoke of having any knowledge of the river floods beyond
thirteen years before the trial, but the question as to this slough
being the natural channel through which the waters of the Missouri
river passed in times of floods, was put to the jury in an instruction
given by the court, and was found by the jury, and upon the evi-
dence submitted they could not have found otherwise than they
did, for upon this point all the witnesses were agreed, though they
could not speak of time immemorial, beyond which the memory of
man did not reach.

The principles which are at the bottom of this case, if taken from

Digitized by


OCTOBER TEEM, 1879. 489

Shane y. Kansas Citj, etc., Railroad Companj.

the civil law, a system which, as Judge Dillon remarks in Living*
slon v. McDonaldy ^^ embodies the accumulated wisdom aud experi-
ence of the refined and cultivated Roman people for a thousand
years, and though not binding as authority, is of great service to
the inquirer after the principles of natural justice and right," and
from which many of the usages of the common-law and equity
courts both in England and this country are derived, were recog-
nized by this court as early as the case of Laumier v. Francis, 23
Mo. 181, in which the opinion of this court was delivered by Judge
Leonard, when associated with Judges Scott and Ryland, all
three of whom arc well known in this State, and have been in the
front rank of our most eminent jurists.

We deem it unnecessary to refer particularly to the decisions in
Louisiana, as they are uniformly in conformity with the principles
of the cases already cited from Pennsylvania and other States, On
the other hand, the cases in Massachusetts and several other of the
New England States, following the case of Gannon v. Hargadon,
10 Allen, 106, adopt the rule of allowing every proprietor to control
surface water as he pleases, without regard to contiguous proprietors.
Still, as even in these States this right is carefully distinguished
from similar rights where a water-course exists by grant or prescrip-
tion, it is not entirely certain how the courts would apply these
doctrines to a case like the present So in New York the general
principle asserted in Gannon v. Hargadoii seems to be maintained
in Goodale v. Tuttle, 29 N.Y. 459, where Judge Denio says: '*In
respect to the running off of surface-water, * ♦ I know of no
principle which will prevent the owner of land from filling up the
wet and marshy places in his own soil for its amelioration and his

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 55 of 123)