Effective 28 Aug 1988

389.660. Right-of-way to be drained — duty of railroad to construct and maintain ditches and drains — violations subject to injunction and damages, costs and expenses. — It shall be the duty of every corporation or person owning or operating any railroad or branch thereof in this state, and of any corporation or person constructing any railroad in this state, within three months after the completion of the same through any county in this state, 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 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 whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad, except that such openings, ditches and drains shall not be required to be reconstructed by the corporation to accommodate changes in land conditions not caused by the corporation. Any corporation or person owning land adjoining such railroad where such ditches or drains are necessary is authorized to require the railroad company to construct and maintain such ditches or drains by an action against the railroad company for a mandatory injunction; and in case such corporation or person shall fail or neglect to construct and maintain such ditches or drains within the time limited in this chapter, any corporation or person owning land adjoining such railroad where such ditches or drains are necessary is hereby authorized, after giving thirty days' notice, in writing, to such owner or operator of such railroad, by service upon any person authorized to receive service of legal process on behalf of the corporation within this state, to cause such ditches, drains, openings, culverts or trestles to be constructed and maintained, and such landowner may maintain an action against such corporation, company or person so failing to construct and maintain such ditches or drains, in any court of competent jurisdiction, and shall be entitled to recover all costs, expenses and damages incurred and accruing in the construction and maintenance of or damages for failure to construct and maintain such ditches, drains, openings, culverts or trestles which actions for damages and for mandatory injunction under this subsection shall be the only remedies maintainable against a railroad company for its failure to construct and maintain suitable ditches and drains.

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(RSMo 1939 § 5222, A.L. 1953 p. 517, A.L. 1976 S.B. 616, A.L. 1988 S.B. 676)

Prior revisions: 1929 § 4765; 1919 § 9953; 1909 § 3150

(1951) Deed reciting agreement that drainage ditch is sufficient and adequate to protect plaintiff's lands from overflow constitutes no bar to an action for damages to land resulting from negligent maintenance of such ditch by railroad. Struckoff v. Thompson (A.), 241 S.W.2d 39.

(1956) Where railroad maintained a fill for its tracks which blocked the flow of water in a natural watercourse in flood time it was liable for damages resulting from the flood. Buschellberg v. C.B. & Q.R. Co. (A.), 289 S.W.2d 447.

(1967) There is no duty on a railroad to let water through its embankment unless there exists a connecting ditch, drain, or watercourse below the embankment into which the water may flow as the laws place upon a railroad no duty, and grants it no permission, to enter upon any servient land to construct or to enlarge any existing ditch, drain or watercourse to increase its water carrying capacity and a railroad may not make an opening in its roadbed and discharge accumulated surface water on an adjacent property, when no ditch, drain or watercourse exists to carry it away without incurring liability for such action. Temple v. Atchison, Topeka & Santa Fe Railroad Co. (Mo.), 417 S.W.2d 97.

(1974) Held this section is not an exclusive remedy and does not bar a common law action for trespass. Hawkins v. Burlington Northern Inc. (Mo.), 514 S.W.2d 593.