Atkinson v. Corson

• Decision Date: 30 June 2009
• Docket Number: No. WD 69080.,No. WD 69035.,WD 69035.,WD 69080.
• Citation: 289 S.W.3d 269
• Parties: Tim ATKINSON, Respondent-Appellant, v. Greg CORSON, Appellant-Respondent; Lisa Corson, Appellant.
• Court: Missouri Court of Appeals

289 S.W.3d 269

Tim ATKINSON, Respondent-Appellant, v. Greg CORSON, Appellant-Respondent Lisa Corson, Appellant.

No. WD 69035.

No. WD 69080.

Missouri Court of Appeals, Western District.

June 30, 2009.

Ronald L. Jurgeson, Lee's Summit, MO, for appellant.

Scott A. Hunter, Kansas City, MO, for respondent.

Before ALOK AHUJA, P.J., THOMAS H. NEWTON, C.J., and HAROLD L. LOWENSTEIN, J.

ALOK AHUJA, Judge.

In this dispute between adjoining landowners, Defendants-Appellants Greg and Lisa Corson appeal from a judgment entered on a jury verdict in favor of Plaintiff-Respondent Tim Atkinson. Atkinson cross-appeals the trial court's grant of a directed verdict in favor of Greg Corson on Atkinson's punitive damages claim based on Mr. Corson's alleged violation of the rule of reasonable use of surface water. For the reasons which follow we affirm on the Corsons' appeal, but reverse the trial court's refusal to submit Atkinson's punitive damage claim to the jury, and remand for a new trial as to punitive damages on Atkinson's Count I.

Factual Background

In 2001, Atkinson purchased a twenty-acre plot of land north of the Corsons' property near Pleasant Hill in Cass County. The parties enjoyed a cordial relationship at first, and at one point, in late 2002 or 2003, even discussed the possibility of jointly constructing a fence along the line dividing their respective properties.¹

At some point thereafter, the parties' relationship began to deteriorate. In 2003, after seeing Mr. Corson and his son walking on Atkinson's side of the property line, Atkinson placed two "No Trespassing" signs on the south edge of his property facing the Corsons' land. After these signs were posted, Atkinson noticed that one of them was riddled with shotgun splatter and bullet holes.

A small ditch, sometimes referred to by the parties as a "wash," ran along the parties' shared property line. This ditch or wash began on the Corsons' property, meandered onto Atkinson's property for approximately fifty feet, and then ended on the Corsons' property. Testimony indicated that, on Atkinson's property, the ditch was eighteen inches deep, and two to three feet across. As set forth below, this ditch became the centerpiece of the present dispute.

In 2005, Atkinson began constructing a second pond on the southwest corner of his property. As part of that construction, Atkinson's contractor removed some trees and stumps along the property line and "smoothed out" the ditch. According to Atkinson, the ditch was not completely filled in, and his contractor left a low spot approximately six inches deep so that water could continue to flow naturally through Atkinson's property. Shortly thereafter, and purportedly after discussing the matter with the Missouri Department of Conservation (which Atkinson disputes), Mr. Corson constructed a berm along the parties' property line, allegedly in an attempt to recreate the water flow which had existed before the ditch was smoothed out and filled in by Atkinson. Mr. Corson created the berm by placing dirt, brush, logs, and stumps, piled approximately two to four feet high, along the property boundary. According to Atkinson, the berm is far longer than the ditch whose water flow Mr. Corson claims he was trying to recreate; at points, the berm rests against the partially-finished fence Atkinson had erected.

Atkinson claimed that the berm altered the natural flow of water along the property line, causing water to be trapped and to pool on his property. The pooled water, Atkinson claimed, created a marshy area of approximately 1.5 acres that no longer drains, and is unmowable and unusable as a result. Atkinson also testified that, due to the marshiness of the area, he could not complete the construction of the fence separating the parties' properties.

On August 7, 2006, Atkinson filed a Petition for Damages and Injunctive Relief in the Circuit Court of Cass County, naming Greg and Lisa Corson as defendants. Atkinson filed his First Amended Petition on February 26, 2007.

A jury trial was held on July 17 and 18, 2007. At the close of all the evidence, the trial court granted the Corsons' renewed motion for directed verdict with respect to Atkinson's claim for punitive damages under Count I, which alleged a violation of the rule of reasonable use of surface water. Later that day, the jury returned a verdict in favor of Atkinson on Count I, and assessed damages of $7500.00 against the Corsons. The jury also found in favor of Atkinson on Count V, which alleged trespass by Mr. Corson by shooting Atkinson's "No Trespassing" sign, and assessed actual damages of $1.00, and punitive damages of $500.00.

The trial court entered judgment on the jury's verdict. Both parties' post-judgment motions were denied. This appeal and cross-appeal followed.

Analysis

I.

In their first Point, the Corsons allege that the trial court erred in denying their motion for judgment notwithstanding the verdict because there was insufficient evidence to support the jury's finding that the Corsons' diversion of surface water was unreasonable under the circumstances.

The standard of review of denial of a JNOV is essentially the same as for review of denial of a motion for directed verdict. A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. In determining whether the evidence was sufficient to support the jury's verdict, the evidence is viewed in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict. This Court will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion. Accordingly, a motion for JNOV is properly granted when the motion identifies at least one element of the plaintiff's case that is not supported by the evidence.

Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007) (citation omitted).

In Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993),² the Missouri Supreme Court rejected the "common enemy" doctrine, under which landowners were largely free to obstruct or divert the flow of surface water without regard to the effect of their actions on others,³ in favor of the reasonable use of surface water rule:

Perhaps the [reasonable use] rule can be stated most simply to impose a duty upon any landowner in the use of his or her land not to needlessly or negligently injure by surface water adjoining lands owned by others, or in the breach thereof to pay for the resulting damages. The greatest virtue of the reasonable use standard is its ability to adapt to any set of circumstances while remaining firmly focused on the equities of the situation.

Id. at 690. Under this rule,

each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.

Id. at 689 (quotation omitted). "Reasonableness is a question of fact, to be determined in each case by weighing the gravity of the harm to the plaintiff against the utility of the defendant's conduct." Id.; see also Klokkenga v. Carolan, 200 S.W.3d 144, 154-56 (Mo.App. W.D.2006); Bettinger v. City of Springfield, 158 S.W.3d 814, 818-20 (Mo.App. S.D.2005).

The Corsons' claim that Atkinson failed to make a submissible case under the Heins rule relies almost exclusively upon Mr. Corson's testimony, thereby ignoring the testimony of several witnesses, as well as photographic and video evidence, that supports the jury's determination that the Corsons' construction of the berm violated the reasonable use rule. Reviewing the evidence which supports the verdict, as we must under the governing review standard, more than sufficient evidence exists to support the jury's verdict here.

Witnesses testified that before the ditch was smoothed out by Atkinson, no one had actually seen it carry water; instead, there was testimony that it held water when it rained, but would dry up thereafter. Atkinson's contractors were instructed to smooth the ditch in a way that did not disrupt or change the manner in which the surface water naturally flowed, and testified that they had done so. In addition, evidence was presented that Atkinson's construction of the second pond would actually decrease the amount of water that would flow onto the Corsons' property. And although the ditch that was smoothed out was only approximately fifty feet in length, the berm Mr. Corson constructed was over seven times as long, running 380 feet along the parties' property line. Evidence was presented that Mr. Corson constructed the berm even though he was not actually experiencing any water problems. Mr. Corson also testified that he built the berm "to keep [Atkinson]'s water on [Atkinson]."

Mr. Corson's side of the story is different. According to him, there were no water problems along the property line until after the ditch on Atkinson's property was partially filled. Mr. Corson testified that, following research, planning, and discussions with Missouri Department of Conservation officials, he decided to construct the berm. Following the berm's construction, Mr. Corson testified that the water flowed exactly as it had before, and thus that his actions did nothing more than restore the status quo. Thus, Mr. Corson contends, his construction of the berm was not unreasonable.

The problem, of course, is that the jury was free to disbelieve all of Mr. Corson's testimony. While the Corsons have shown that conflicting evidence was presented to the jury, such conflicts in the evidence do not merit reversal, particularly when the inquiry involves the inherently fact-based issue of...