Applegate v. Franklin

• Decision Date: 27 December 1904
• Citation: 84 S.W. 347,109 Mo. App. 293
• Court: Missouri Court of Appeals
• Parties: APPLEGATE v. FRANKLIN.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 347

109 Mo. App. 293

APPLEGATE v. FRANKLIN.^*

St. Louis Court of Appeals. Missouri.

December 27, 1904.

WATERS AND WATER COURSES—SURFACE WATER— DRAINAGE—DAMAGES—ITEMS—EVIDENCE —JUDICIAL NOTICE.

1. A concourse of water fed by rain and snowfall, covering about 2,500 acres of depressed land, and which varies in depth from three to six feet, which is filled with swamp vegetation, and the land under which has been surveyed and conveyed to individual proprietors, and which is useless for any form of navigation or public purpose, is mere surface water, which a proprietor of part of the submerged land may drain off at will, so long as he does so in a reasonable and careful manner, although he thereby drains the land of another proprietor, and destroys the value of fisheries maintained by him in the pond.

2. In an action by a proprietor of land submerged by surface water, on which he maintained fisheries, for damages caused by the act of another proprietor in draining the land, evidence of the quantity of fish left dead on the former bed of the lake or swamp after reliction was inadmissible.

3. In an action by a proprietor of land submerged by surface water, on which he maintained fisheries, for damages caused by the drainage of the same, the value of fishing equipment and paraphernalia for which plaintiff had no further use after the drainage was not a proper element of damage.

4. In an action by a proprietor of land submerged by surface water, on which he maintained fisheries, for damages caused by the drainage of the same, prospective damages based on the future market price of fish, and probable increased demand therefor, could not be recovered, especially where plaintiff sold his lands and parted with his interest in the fisheries immediately after beginning suit.

5. In an action by the owner of submerged land for damages caused by the drainage of the same, where there was nothing to show any oppressive or malicious conduct or intent on defendant's part, so that punitive damages were not recoverable, statements of plaintiff and witnesses descriptive of the former's mortification and lacerated feelings, and allusions to defendant's wealth, were improper.

6. In an action by the proprietor of submerged land for damages caused by the drainage of the same, defendant should have been permitted to show, as evidence of good faith, that he constructed the drainage ditch under an agreement with the county, having for its object the reclamation of submerged lands for agricultural purposes.

7. In an action by the owner of submerged lands for damages caused by the drainage of the same, defendant, who performed the work under an agreement with the county, was entitled to show the extent of public benefits conferred on adjacent lands by the work, and the

probable effect upon the health and well-being of residents of the county.

8. Courts take judicial cognizance of the fact that overflows and floods are followed by disease, and that swamps are detrimental to public health.

9. The only right of action which the owner of lands submerged by surface water has for the acts of another proprietor of adjacent submerged land in draining the same is for the recovery of damages consequent on trespasses committed in the prosecution of the work.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Alexander Applegate against J. E. Franklin. From a judgment for plaintiff, defendant appeals. Reversed.

The exhaustive argument submitted on behalf of appellant felicitously concluded with the apt comment that this was a case unique in legal annals, arising out of the conditions peculiar to the swamp lands of the marshy counties of this state, and resulting from a progressive purpose and well-meant effort to adapt and fit such lands of that section for human habitation and agricultural uses. The issues presented involve chiefly principles of law, rather than questions of facts, and the undisputed history of the case is substantially and materially thus submitted to the consideration of the court by the industry and research of opposing counsel: This action was inaugurated in the circuit court of Pemiscot county for the recovery by plaintiff against defendant of damages, both compensatory and punitive, attributed to the draining by defendant of a body of water entitled "Pemiscot Lake," adjacent to, and in which plaintiff asserted title to, 280 acres of land, on which he had established and long maintained valuable fisheries. Pemiscot Lake (also designated "Big Lake") was a shallow concourse of water located among the swamp lands in Pemiscot county, in the southeastern corner of the state of Missouri, in dimensions about 1½ miles wide by about 3 miles in length, covering about 2,500 acres of submerged land, irregular in shape, with two prominent projections, arms, or pockets, known as the north and south openings. It is, in effect, a shallow depression in the surrounding country, created in the seismic throes of nature which convulsed that section in the years of 1811 and 1812, familiarly known as the "New Madrid Earthquakes." The maximum depth, contrasted with the height of the banks or shores, which are low, marshy, and scantily defined, did not exceed 6 feet in normal stage, in which condition it is devoid of current or flow, without channels, except tortuous passages between jutting ridges, and dotted with numerous small islands, dividing it into separate smaller bodies of water, from which at different periods of the year, and under varying conditions, the water extended and spread out in all directions. Its minimum depth ever known was 3 or 3½ feet, but it fluctuated considerably in extent, dependent on the precipitation of rain or snow fall. Prior to the construction of the system of levees which now guard that section against floods of the Mississippi river, distant about 2 miles at nearest point, this lake had been supplied by water from that stream through a bayou or channel below the general level of the contiguous region, and during high stages of water the flow from the river filled the lake, which, continuing to rise with the increasing volume of water in the Mississippi, would overflow and inundate the surrounding territory, particularly toward the west and south, with the excessive water received, even as far as to find escape occasionally into Big Lake, Ark. As the height of the river would abate, the waters of the lake would recede, and the process become reversed. After the erection of the levee along the bank of the Mississippi river, the lake was fed solely with water from the rain and snow fall in the surrounding country through numerous bayous and sluggish lagoons. The waters of the lake were largely filled with paludal vegetation, consisting of moss, flags, swamp grass, pond lilies, yonkerpins, and like amphibious vegetable growth indigenous to marshes and swamps. In November, 1900, plaintiff was the owner and claimant of 280 acres, neither situated in a compact body, nor all contiguous, of which about 100 acres were covered by the waters of the lake during its normal condition, when the lake was not ejecting its surplus water by encroachment on the adjoining territory in all directions. Plaintiff had entered a portion of his land from Pemiscot county, and had bought part at $1.25 per acre about 18 years prior to the time of the trial. He had constructed suitable improvements, and expended considerable sums in establishing, developing, and maintaining his fisheries, and derived $2,500 or more per annum for many years from his business. He had at one time sold to a partner an interest at rate of $1.25 per acre, but reacquired it at the price of $500 gross, procuring a reconveyance after institution of this action, after which he had also disposed of these lands,...