Armstrong v. Westroads Development Co.

• Decision Date: 15 June 1964
• Docket Number: No. 31103,31103
• Citation: 380 S.W.2d 529
• Parties: Francis R. ARMSTRONG and Mildred Armstrong, His Wife, Plaintiffs-Appellants, v. WESTROADS DEVELOPMENT COMPANY, a Corporation, et al., Defendants, Stix, Baer & Fuller Company, a Corporation, and City of Richmond Heights, Missouri, a Municipal Corporation, Defendants- Respondents.
• Court: Missouri Court of Appeals

Page 529

380 S.W.2d 529

Francis R. ARMSTRONG and Mildred Armstrong, His Wife Plaintiffs-Appellants, v. WESTROADS DEVELOPMENT COMPANY, a Corporation, et al Defendants, Stix, Baer & Fuller Company, a Corporation, and City of Richmond Heights, Missouri, a Municipal Corporation Defendants- Respondents.

No. 31103.

St. Louis Court of Appeals, Missouri.

June 15, 1964.

Rehearing Denied July 20, 1964.

Kerth, Thies & Schreiber, C. Kenneth Thies, Dalton W. Schreiber, Clayton, for plaintiffs-appellants.

Bryan, Cave, McPheeters & McRoberts, St. Louis, Thomas V. Connelly, for defendant-respondent Stix, Baer & Fuller.

Louis A. Robertson, St. Louis, for defendant-respondent City of Richmond Heights.

BRADY, Commissioner.

This case was very recently reassigned to the writer. The action was originally brought against the respondents, hereinafter referred to as 'Stix' and 'Richmond Heights,' and three other corporations who are subsidiaries of the defendant Stix. These are Westroads Realty Company, Westroads Development Company, and Clayton Road Development Company, hereinafter referred to as 'Clayton Road.' The trial court sustained motions to dismiss as to both of the Westroads corporations. The jury returned a verdict in favor of the defendant Clayton Road and against the defendants Stix and Richmond Heights in the amount of $2,000.00. Upon timely motion the trial court set aside the verdict as to Stix and Richmond Heights and entered judgment in their favor. From that judgment the plaintiffs appeal. They do not challenge the jury's verdict in favor of Clayton Road, and neither do they appeal from the trial court's action dismissing this cause as to Westroads Realty and Westroads Development Companies.

The plaintiffs' petition alleged their ownership of Lot #18 in Berkshire, a residential subdivision in St. Louis County, and that '* * * said creek is a source of drainage of said property * * *.' It further alleged that in connection with the development of Westroads Shopping Center the defendants '* * * enclosed said 'Black Creek' in a long, concrete tube along the western end of said shopping center and within the city limits of the Defendant City Richmond Heights, Missouri, and by said act Defendants have deprived Plaintiffs of the natural source of drainage of surface waters from their said property.' The petition further alleged '[t]hat as a proximate result of said wrongful act on the part of Defendants in enclosing said creek, * * *' plaintiffs had suffered certain monetary damages as a result of their property being made wet, boggy, and unusable and due to the loss of 'a great number' of shade trees.

In order to assist in understanding the relative positions of the lands involved, we have caused one of the exhibits to be reproduced in this opinion. In addition we have placed two arrows on this reproduction marked 'A' and 'B', to indicate the direction in which the parties contended surface water flowed from plaintiffs' lot prior to defendants' work. The plaintiffs' property is approximately two acres in area with the front thereof being about thirty feet higher than the rear. Other lots in the subdivision and the Immacolata Church and School property are also higher than the rear of plaintiffs' lot so that plaintiffs' testimony was that water from some ten acres of land drained down across the rear of their lot. There were catch basins located at different points which helped collect this water. Two of these are located on either side of Ashmere Drive in front of Lot #16. The water from these catch basins flowed through 15 inch pipes that were buried on the property line between the lots. These pipes opened up at the rear of the lots. This water and surface water generally then ran down a ravine which ran along the property line separating the lots from the Immacolata property and also separating plaintiffs' lot from the park area. Three other catch basins were located as shown on the drawing included in this opinion and which emptied water through a 15 inch drain running parallel to Eastfield Drive and opening at the rear of Lot #48. Eastfield Drive is a paper street only. It does not exist as a street. At the time plaintiffs constructed their house on Lot #18 there was a water problem existing in the rear of their lot. To alleviate this condition the plaintiffs placed an earthen embankment, a kind of a dam, along their land as it bordered the ravine to prevent this water from flowing on their land. They also constructed a dam along Eastfield Drive to keep the water collected by the second group of catch basins from coming onto their land. These measures succeeded in keeping the plaintiffs' land dry until defendants began their construction.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There is a serious dispute as to the direction in which the surface water which reached the rear of plaintiffs' lot found its way into the old channel of Black Creek. The defendants' evidence was to the effect that this water left the rear corner of plaintiffs' lot, trickled across what would have been Eastfield Drive, continued on its way across the very rear portion of Lot #48 and then meandered across the property of Clayton Road eventually emptying into Black Creek near Hoover Avenue in the manner shown by Arrow 'A'. As stated, this was the defendants' evidence. It was denied by the plaintiffs, and we are cognizant that for the purposes of this appeal we are to view the evidence in the light most favorable to the plaintiffs. However, we have grave difficulty in determining just what plaintiffs' evidence was. In plaintiffs' brief the following appears: '* * * The Plaintiffs' evidence is that said water flowed Northeast from their lot across the Park Area, finding its way into Black Creek at the first bend in the channel thereof after Black Creek crossed Clayton Road (R. 131, 132, 173, 174, 175, 179, 180, 181, 182, 183, 186, 209, 210, 211, 212, 215, 216, 247, 252, 253, 255).' There is absolutely nothing with regard to this issue that appears in the record at pages 255, 252, 247, 216, 215, 212, 211, 210, 179, 174, 173, 132, or on page 131. Presumably, those pages were cited to add numerical emphasis to the plaintiffs' statement. All that appears on page 175 is that the ravine catches the water from the other properties and '[c]arries it on past lot 18 into Black Creek.' It does not state where in Black Creek the water enters. The only thing on this issue that appears on page 209 is that plaintiff's answer that the surface water '* * * trickled over into rivulets into Black Creek when I first started out there.' This again is of no assistance to help us determine where the water went into Black Creek before the defendants' work began. On page 183 of the record the plaintiff denied that the water left the rear of his property and entered Black Creek near Hoover Avenue as defendants contended. On pages 185 and 186 of the transcript the following appears: 'Q Where did the drainage come from your property? Can you again point out the direction the drainage from your property---- A My remembrance is it came across here down through here into the old Black Creek (ind.). Q Would that be west of Stix's property or would it be down here on Stix's property (ind.)? A No, it would be west of Stix's property. Q And the water drained off your property west of Stix's into Black Creek Channel? A Into Black Creek Channel. Q Right at the point---- A I don't know what point--the water came down here and on over--does this show any tributaries where all the water came off of Immacolata and that park--any tributaries going into the creek--there's water flowing off---- Q. Mr. Armstrong, isn't it a fact that between the back of your property and Black Creek Channel there was a ridge and the water didn't flow to the north but flowed to the southeast into this channel? A I don't think so.' In the record at pages 179 through 182 this issue was dealt with on cross-examination. The plaintiff was asked to point out on one of the exhibits where the waters crossed his lot and '* * * how they left your lot prior to the time this culvert was installed?' His answer was as follows: 'A Well, I can show you approximately but I cant't show you definitely because nobody could find a corner of the lot back there at that time.' Following this he was again asked: 'Q Do you know where the water drained off your property into the old channel? A No; in my estimation they came right across here and came into this Black Creek Channel. Q You are pointing, I believe, Mr. Armstrong, across the park area from Stix's property and Immacolata Church and to the first bend in the channel after it crossed Clayton Road? A I don't know whether it's the first channel because when you stand in this yard you are completely messed up on directions--it's not easy because the lot is on a curve. You don't know which direction you are pointing. I say the water came off this lower corner and went on into the Black Creek in there (ind.) somewhere. Q You are pointing that the water left your property in a general northeastwardly direction? A No, southeastwardly direction. Q This is north up here (ind.). A That's a southeastwardly direction. Q. And this would be south down here (ind.)?' In the record at page 182 he reiterated that this surface water drained to the southeast and into Black Creek. The southeast is the general direction in which defendant contends that the water drained, eventually emptying into Black Creek at Hoover Avenue. Parenthetically, we might again state that it is of no assistance to an appellate court reading the record and trying to determine to what area a witness was testifying to have questions phrased and answers made in such general language as 'north up here (ind.)' or 'south down here (ind.)' or 'right about here' and other similarly phrased questions and answers.

The point of this dispute as to the direction of the flow of surface...