Barnett v. St. Francis Levee District

• Decision Date: 14 May 1907
• Citation: 102 S.W. 583,125 Mo. App. 61
• Parties: BARNETT v. ST. FRANCIS LEVEE DISTRICT.
• Court: Missouri Court of Appeals

102 S.W. 583

125 Mo. A. 61

BARNETT v. ST. FRANCIS LEVEE DISTRICT.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. JURY — COMPETENCY — FORMATION OF OPINION.

Veniremen, who had heard all the testimony in another case involving the same issues presented in the case in which they were called, and who had formed an opinion regarding its merits, were disqualified, though they stated they thought they could try the case impartially according to the evidence.

2. LIMITATION OF ACTIONS — ACCRUAL OF CAUSE OF ACTION — FLOWAGE OF LANDS.

The right of action for the negligent construction of a levee, in that it was built as a solid bank of earth across an outlet of a lake, instead of having a flood gate for drainage purposes, whereby water which would have drained off was caused to overflow lands, does not accrue when the levy is built, but when the overflow actually occurs.

3. WATERS AND WATER COURSES — FLOWAGE OF LANDS — PRESCRIPTIVE RIGHT.

Where a levee constructed across an outlet of a lake did not cause a continuous or even a periodical overflow of lands, that the levee had been maintained over 10 years does not of itself give a prescriptive right to the overflow of such lands.

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

Action by J. Ira Barnett against the St. Francis levee district. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

C. G. Sheppard, for appellant. Faris & Oliver, for respondent.

GOODE, J.

Plaintiff owns a farm on the shore of Half Moon Lake, in Pemiscot county. The outlet of the lake is Taylor Bayou, a natural water course with well-defined channel and banks, through which the surplus waters of the lake formerly flowed into the Mississippi river. In 1893, the defendant, acting under statutory authority, built a levee to hold back the overflow waters of the Mississippi from a territory which previously had been frequently submerged. The levee was built as a solid dirt embankment across Taylor Bayou, a short distance from the lake, and obstructed the drainage of the lake. The channel of the bayou, which was from 40 to 60 feet wide and 10 to 15 feet deep, gradually choked with débris between the levee and the lake, thereby impeding the outlet of the waters still more. The testimony for the plaintiff goes to show that an overflow gate, or some other device, could have been put in the levee for the water from the lake to flow through, and thus sufficient drainage afforded to prevent the overflow of plaintiff's land during freshets. For the defendant, there was evidence that such a construction was impossible, and the only mode in which the levee could be made effective was by building it as a solid embankment. In the spring of 1903, a considerable portion of Pemiscot county was flooded by an extraordinary rise of the waters of the Mississippi river and the giving way of the levee in places. Part of plaintiff's farm was submerged during that year, preventing him from cultivating the land and washing away some of his fencing. There is a conflict in the evidence as to the cause of this overflow. The testimony introduced by plaintiff was that it was due to surface water flowing into Half Moon Lake during rains and being retained there by the levee; whereas, the testimony for the defendant tended to prove it was caused by the flood waters of the Mississippi river escaping through a break in the levee and running behind it into Half Moon Lake. This action was instituted to recover for damage caused by the overflow, on averments that the levy was improperly, negligently, and unskillfully constructed, in that it was built as a solid bank of earth across the bayou, instead of having a flood gate for drainage purposes, or some other suitable contrivance to enable the surrounding land, including plaintiff's farm, which previously had been drained by the bayou, to be drained still. The answer denied any negligence in the building of the levee, and alleged that any other mode of construction was impracticable, and that the damage done to plaintiff's farm was not due to the improper performance of any duty imposed by law on the defendant. It is further said, by way of defense, that the spring of 1903 was marked by excessive rainfall and long-continued stage of high water and floods in the Mississippi river; that plaintiff's land was situate in low and swampy ground and adjacent to a series of shallow lakes and sloughs; that the waters of the Mississippi escaped into said low ground, covering the same. This overflow of the river is said to have occurred twice during the year 1903, to wit, during March and June. It is alleged that the first flood would have overflowed plaintiff's farm, even if no levee had been constructed across Taylor Bayou, and that the embankment in reality protected plaintiff's land, in some measure, by holding back the water of the river. It is denied that any damage suffered by plaintiff was due to unskillful construction of the levee. A verdict was returned for the defendant, and plaintiff appealed.

Though several errors are assigned in rulings on the admission of evidence, they appear not to be well taken; but the judgment must be reversed because of the overruling of plaintiff's challenge of two jurors for cause. These men had listened to the trial of a case by another plaintiff against the defendant, involving the same issues presented in the present case. Both plaintiffs lived on Half Moon Lake, and in their petitions each complained of the overflow of his farm during the season of 1903, because of the obstruction of Taylor Bayou, and the consequent backing up of the waters of Half Moon Lake. Two veniremen testified on their...