Mahlon Pitney

“ Defendant's railroad extends across the bottoms from southwest to northeast, and along the easterly boundary of plaintiff's land. The roadbed is constructed of a solid earth embankment, varying in height from 4 to 7 feet, and is not provided with transverse culverts, openings, or drains of any kind for the escape of surface water, but constitutes a solid barrier for collecting such waters, and causes them to back over and flood plaintiff's lands, which would not be overflowed except for that obstruction. ”

“ The statutory requirement of 'openings across and through the right of way and roadbed' originated in the 1907 amendment of § 1110. Before that, and dating from the year 1874, the statute merely required railroads to construct ditches along each side of the roadbed. ”

“ And hence, it is argued that, as applied to this company, the act of 1907 cannot be sustained as a charter amendment. This is disputed; but for present purposes we will assume the charter was irrepealable.
Next, it is insisted that for all purposes except those covered by the act of 1907, Missouri has at all times adhered to the common-law rule that surface water is a common enemy, against which every landowner may protect himself as best he can, and that this applies to and protects railroads as well as other landowners. Abbott v. Kansas City, St. J. & C. B. R. Co. ”