Applegate v. Franklin
| Decision Date | 27 December 1904 |
| Citation | 84 S.W. 347,109 Mo.App. 293 |
| Parties | APPLEGATE, Respondent, v. FRANKLIN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
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 two hundred and eighty 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 one and a half miles wide by about three miles in length, covering about twenty-five hundred 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 county 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 six 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 three or three and one-half feet, but it fluctuated considerably in extent dependent on the precipitation of rain or snowfall. Prior to the construction of the system of levees, which now guard that section against floods of the Mississippi river, distant about two 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 increased 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, Arkansas; 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 snowfall 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, yoncopins and like amphibious vegetable growth indigenous to marshes and swamps. In November, 1900 plaintiff was the owner and claimant of two hundred and eighty acres, neither situated in a compact body nor all contiguous, of which about one hundred 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 eighteen 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 twenty-five hundred dollars 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 five hundred dollars gross, procuring a reconveyance after institution of this action, after which he had also disposed of these lands, theretofore used by him for such fishing purposes, at eight dollars per acre. By the public and the plaintiff as well, fishing had been enjoyed in the water of the lake for many years. For the purpose of drainage of the lake from his own lands, of which he owned about twenty-five hundred acres lying either wholly in the lake or adjacent thereto, inclusive of the main bodies of water in the principal openings described, and to reclaim them for cultivation, defendant had proceeded, under authority of a contract made with Pemiscot county, to dig and construct a ditch, which was completed in 1901. This canal was extended from a similar drainage ditch already built by the county, up into and through the deepest portions of Pemiscot lake and resulted in drawing off of the waters from the lake and incidentally from the lands of plaintiff as well. A jury, under the instructions of the court, returned a verdict for plaintiff in sum of twenty-five hundred dollars, and defendant appealed.
Judgment reversed and cause remanded.
Faris & Oliver for appellant.
(1) The court erred in overruling the demurrer to the evidence, offered by defendant, at the close of plaintiff's testimony. It was incumbent on plaintiff to show that the body of water drained was a natural stream, or natural body of water as distinguished from surface water. For if it were surface water, defendant had the right to drain it, even though in so doing the plaintiff should suffer injury. It was not only surface water by all of the definitions, but a swamp and a nuisance, as well. Benson v. Railroad, 78 Mo. 504; Jones v. Railroad, 18 Mo.App. 251; Railroad v. Schneider, 30 Mo.App. 620; Abbott v. Railroad, 83 Mo. 272. This lake was private property. It had been sold by the State and county to private persons. It was not meandered, but "sectionized," as other lands designated as "swamp lands." It could not in its natural state be used for the carriage of boats or other property. The mere fact that during floods from the Mississippi river it was capable of being used for floating boats, lumber or rafts, does not give it a public character, nor make it navigable. Gould, Waters, sec. 109; Munson v. Hungerford, 6 Barb. 265; Norgan v. King, 91 Am. Dec. 58; Olsen v. Merrill, 42 Wis. 203; Hubbard v. Bell, 54 Ill. 110; Brown v. Chadbourne, 50 Am. Dec. 641. (2) The court in admitting irrelevant and incompetent testimony offered by the plaintiff. (a) Much evidence was offered over the objection of defendant, as to the number of dead fish left upon the former bottom of the lake after it was drained. Such evidence could throw no light on any of the issues, and could only have served to bias the jury. Fish being ferae naturae, the dead ones did not belong to plaintiff. The most he had was a limited property in them while they were in the waters over his land. State v. Blunt, 85 Mo. 543; 13 Am. & Eng. Ency. of Law, (2 Ed.) 555. (b) Testimony as to value of plaintiff's fishing tackle and paraphernalia and his lack of use therefor, was error, and injected into the inquiry a damage which had no proximate connection with the mere act of digging the ditch. The tackle was physically of the same texture and commercial value after the digging of the ditch, as it was prior thereto. Damages not proximately resulting from injury inflicted will be disregarded. Ins. Co. v. Boone, 95 U.S. 130; Grattis v. Railroad, 153 Mo. 380, 55 S.W. 108; Fontaine v. Lumber Co., 109 Mo. 55, 18 S.W. 1147; Saunders v. Brosins, 52 Mo. 50. (c) It was error to admit evidence of prospective damages. Plaintiff's damages, if any, were such as had accrued to him up to the date of instituting this action. He had no right to inquire about, or to measure probable value of fish or the increased demand for fish in the market as of the time of the trial of this case, more than two years after this suit was filed. Wayland v. Railroad, 75 Mo. 552; Railroad v. Calkins, 90 Mo. 538; 3 S.W. 82; Blunt v. McCormick, 3 Denio 283. (3) It was error to allow counsel for plaintiff, repeatedly to say, over the objections of the defendant, that "Franklin is a man of wealth." This was not a case for punitive damages, as the court correctly declared in its instructions, therefore, not a case where the wealth of the defendant was important except as a means of prejudicing the jury. Trimble v. Foster, 87 Mo. 49; Beck v. Dowell, 11 Mo. 506; Clements v. Maloney, 55 Mo. 352; Buckley v. Knapp, 48 Mo. 152; 2 Greenleaf on Evidence, sec. 269.
W. W. Corbett and Roberts & Corbett for respondent.
(1) The court committed no error at the conclusion of the introduction of testimony to refuse, over defendant's objection to instruct the jury to find for the defendant. The evidence warranted the verdict and was for the right party although an outrage, owing to its small amount. That the State of Missouri and the county of Pemiscot had the right to part with the title to this land and lake is not controverted; the State and county did part with it, and from this source plaintiff and defendant derived their title. (Then this point, so far...
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