Opinion
Nos. 21925, 21926.
November 2, 1953.
APPEAL FROM THE CIRCUIT COURT, COLE COUNTY, SAM. C. BLAIR, J.
Lauf Bond, H. P. Lauf, John O. Bond, John W. Goodwin, Jefferson City, for appellants.
Hendren Andrae, Henry Andrae, Charles H. Howard, Jefferson City, for respondents.
This appeal involves two suits (Cases No. 12,655 and 12,707 in the court below.)
Plaintiffs, husband and wife, own two adjacent lots on Hayselton Drive in Jefferson City, Missouri, located north and east of the intersection of Hayselton Drive, with North Circle-East Circle Drives.
Plaintiffs' verified petition for a temporary injunction (Case No. 12,655) was filed in the Circuit Court of Cole County on August 21, 1951, alleging that plaintiffs would be greatly damaged and suffer irreparable injury by reason of defendant City's attempt to construct an additional drain on East Circle Drive. On the same day said petition was field a hearing was had resulting in the issuance of the temporary injunction prayed for.
On October 11, 1951, plaintiffs' petition in Case No. 12,707, was field in said Circuit Court alleging that plaintiffs were damaged by the maintenance of a nuisance by the defendant City in discharging surface water into a ditch running through plaintiffs' land.
On November 23, 1951, the two cases were consolidated and tried to the Court, a jury having been waived in Case No. 12,707. At the conclusion of the evidence the court took the cases under advisement.
On July 16, 1952, the Court rendered its judgment in Case No. 12,655 enjoining defendant permanently from constructing another drain on East Circle Drive. And in Case No. 12,707, it found in favor of plaintiffs and against defendant in the sum of $750. Defendant City appeals.
The evidence shows that to the west of plaintiffs' property there is a watershed comprising 43 acres draining into a culvert at the north end of East Circle Drive and large enough to accommodate a run-off from the 43 acres. This box culvert has two drains emptying into it. It empties into a ditch on the east side of East Circle Drive, which extends through plaintiffs' property.
At the time of the trial, the ditch from the east end of the culvert was 71/2 feet deep on the north side and 94/10 feet deep on the south side, and was 15 to 20 feet wide in several places. When plaintiffs acquired the property in 1945, one could easily step across the ditch and at no place was it more than 3 feet deep.
Defendant's witness Fowler, its city engineer, testified that he remembered when there was no ditch "at all." Its witness Pope, plaintiffs' immediate predecessor in title, testified that when he owned the property and before the culvert extended easterly the water from the culvert spread over a low place just east of the culvert, and would form a little lake which would stand until it either evaporated or sank into the ground. To eliminate this "lake" or "flat area", Pope extended the culvert easterly and south of the "flat area", and then cut a new ditch through a hillside and connected it with an existing ditch back of his (now plaintiffs') residence. While Pope owned and occupied the property he did not see any washing or eroding of the ditch.
At the west end of the culvert there was a flat place which "hadn't washed out in 1946" and about 15 feet west of the west end of the culvert there was a barely perceptible ditch about a foot and a half wide with grass overlapping on both sides so "you could hardly tell it was there."
During the five year period before the trial the volume of water issuing from the culvert has increased three-fold. Defendant's witness, Fowler, testified that after the catch-basins were placed in the culvert the ditch has continuously eroded. There has been a great deal of building in the watershed to the west of the culvert and the effect of the construction therein of streets, culverts, gutters and houses has been to lessen the "runoff time", lessen the area in which the water can be absorbed, collect it, and thus cause more water to get into the culvert. Fowler also admitted that the placing of a new drop inlet will cause more water to be discharged into the culvert.
The evidence discloses that when it rains, one can hear the roar of the water rushing out of the culvert, and the force of the water has swept away large rocks placed there to stop the erosive action. The ditch is "eating towards the house. There has been one tree taken out entirely and there is a big tree at the northeast corner that will soon go out if something isn't done." And "that ditch is washing closer to our driveway."
After rains, water collects in pools in the bed of the ditch, where mosquitoes can breed. Plaintiff. John C. Anderson, testified: "At one time the City Engineer and former city attorney were out there and admitted it was a health responsibility and something should be done about it. * *"
The evidence also shows that defendant City can abate the existing condition by any one of several methods, but has not, although plaintiffs and their neighbors have offered defendant a waterway easement across their lands for that purpose.
Among other things, the trial court found "that the ditch extending from the particular culvert mentioned toward the east and through the plaintiffs' property is not a watercourse and that by directing large, unusual and abnormal quantities of water into said ditch and upon property of plaintiffs, the plaintiffs have been damaged in the amount of $750 * * *." No claim is made that the sum awarded is excessive.
The above finding forms the basis for the two points which defendant presents here. (1) "The court erred in finding that the ditch extending from the culvert in question is not a watercourse," and (2) "The City has the right to discharge surface water collected by it into a watercourse."
The evidence shows that to the west of East Circle Drive, there is located a park, known as Lavinia Park, and in which is what the witnesses call "Coon Creek." The latter is a dry bed when rain is not falling, does not flow water constantly, and drains surface water only.
The following definition of a watercourse in an instruction was approved in Scott v. Missouri So. R. Co., 158 Mo.App. 625, 632, 139 S.W. 259, 261. "A watercourse is a living stream of water with well defined banks, and a channel and bed. Such stream to be a watercourse need not run continuously, but it must be fed from other and more permanent sources than mere surface water, resulting from rain or snow which may be discharged from a higher to a lower level and find exit through its channel." (Emphasis ours.)
The fact that surface water as it drains through the watershed mentioned in evidence was referred to as "Coon Creek" is not significant. The end of the original culvert flowed into flat ground and formed a puddle referred to as a "lake". It did not flow into a ditch.
We are mindful of the mandate of the statute, Section 510.310, RSMo 1949, V.A.M.S., that, where a case is tried to the court without the aid of a jury, as here, the judgment should not be set aside "unless clearly erroneous". In addition to seeing and hearing the witnesses, the learned trial court had another advantage over us. The record shows that by agreement of the parties, the court, in company with the County Engineer of Cole County, went over the area involved. For these reasons, we are inclined to defer to his finding, amply supported by the evidence, that the ditch in question is not a watercourse.
In the instant cases the ditch was not constructed so as to follow "the exact course of the natural drainway" as was the fact in the case of Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698, 702, upon which defendant chiefly relies. And, as the Happy case says, whether a given waterway is a natural watercourse, is "based upon the particular circumstances in each case." We rule the point against defendant.
The evidence shows that defendant City has collected surface water by artificial means and cast it upon plaintiffs' property in a concentrated volume. Thus it became liable for the damage resulting therefrom.
Missouri has always followed the doctrine that surface water is a "common enemy" and the owner of a dominant tenement may direct it upon a servient tenement. City of Hardin v. Norborne Land Drainage Dist., 360 Mo. 1112, 232 S.W.2d 921, 926. This doctrine has been qualified.
"Of course the rights given under the 'common enemy' doctrine must be exercised within reasonable limits and not recklessly, so as not to needlessly injure the servient tenements." Clark v. City of Springfield, Mo.App., 241 S.W.2d 100, 105. (Citing cases.)
"But one should not artificially impound or collect surface water and cast it in increased and destructive quantities upon the servient estate to its damage." Clark case, supra. (Citing cases.)
"And this rule applies to a municipal corporation." Clark case, supra (citing cases.)
The Clark decision, supra, quotes at length from Paddock v. Somes, 102 Mo. 226, 14 S.W. 746, 10 L.R.A. 254, as follows:
"And of course it is an actionable injury and nuisance for one to collect surface waters and cast them in a body upon a neighboring proprietor; and the same rule holds in this regard, both as to individuals and to municipal corporations. The latter, though not obliged to construct sewers or drains to protect adjoining owners against the flow of surface water from public ways, yet, if they do construct drains, and thus carry water and cast water upon the adjacent lands, are as much responsible as though they had invaded such lands by sending their servants thereon. * * * Sufficient has been said to condemn, as erroneous, all of the instructions, whether given by the court in behalf of the defendant or of its own motion, which gave recognition to the defendant of a right to collect surface water into artificial channels, and then cast it upon the land of his neighbor. There is no law for any such assertion; and it makes no difference, in point of principle, that some of the water thus collected in such channels consisted of spring water, or drainage or sewerage water, since the liability consists in collecting water, from whatever source collected, and then casting it upon the lands of another."
The cases of Zook v. City of Louisiana, Mo.App., 12 S.W.2d 518; Bodam v. City of New Hampton, Mo.App., 290 S.W. 621 and Carson v. City of Springfield, 53 Mo.App. 289, are to the same effect.
The judgments should be, and are, affirmed.
All concur.