Bean v. Lucht

• Decision Date: 02 April 1912
• Citation: 145 S.W. 1171
• Parties: BEAN v. LUCHT.
• Court: Missouri Court of Appeals

145 S.W. 1171

BEAN v. LUCHT.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. TRIAL (§ 418)—DEMURRER TO EVIDENCE— WAIVER.

A defendant, who, after requesting an instruction in the nature of a demurrer to the evidence, introduces evidence, loses the benefit of his demurrer.

2. WATERS AND WATER COURSES (§ 125)— INJURIES TO LAND—MEASURE OF DAMAGES.

In an action for injuries to land, caused by obstructions which diverted a water course and cast surface waters on plaintiff's land, the measure of damages is not the difference in the market value of the land before and after the act, but the actual damage done and any depreciation in the value of the land owing to deposits of silt or obstructions to ingress and egress.

3. TRIAL (§ 233)—INSTRUCTIONS—REFERENCE TO PETITION.

It is improper, in an instruction, to refer the jury to the petition for information as to the acts alleged to have been done.

4. TRIAL (§ 242)—MISLEADING INSTRUCTIONS.

An action for damages to land, caused by the obstruction of a water course and the construction of ditches, which cast surface water thereon, was first prosecuted by two plaintiffs, who, while owning adjoining lots, had no title in common, and testimony as to the damage done to the lots of both was received. Held that, a nonsuit having been taken as to one of the plaintiffs, an instruction, charging that the measure of damages will be the difference between the value of plaintiff's property before the acts complained of in plaintiff's petition and the value of the property after the acts complained of, was erroneous, as tending to cause the jury to consider evidence as to the injuries suffered by both plaintiffs.

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

Action by Laura S. Bean against John Lucht. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Albert M. Spradling and J. R. Young, for appellant. C. N. Mozley and J. A. Finch, for respondent.

REYNOLDS, P. J.

This action was originally brought by Frank W. Bean and Laura S. Bean against defendant for damages said to have been sustained by them through the act of defendant in closing up what is claimed to be a watercourse in the town of Illmo. The petition avers that plaintiffs are the owners in fee of four certain lots numbered 2, 3, 4 and 5 in an addition to that town; that they were the owners of this real estate in May, 1908; that in that month defendant unlawfully, wilfully and maliciously dammed up and closed a certain watercourse and dug certain trenches and ditches, thereby causing the water to flow through these trenches or ditches excavated by defendant and thereby precipitated the water upon plaintiffs' lots; that in addition to the act of excavating these trenches and diverting the water, defendant had unlawfully, wilfully and maliciously excavated trenches or ditches on his own land which caused the surface water on his land to collect in the ditches and caused it to flow upon plaintiffs' lots, and that the damming of the watercourse and excavating these ditches has caused the water to flow through the ditches upon plaintiffs' lots; that defendant has continued to maintain these ditches and allow the water to be diverted from the watercourse and discharged upon plaintiffs' lots, causing sediment to be deposited on all the lots belonging to plaintiffs, killing the grass and shrubs and rendering unfit for business purposes two of the lots numbered 2 and 5 and destroying the right of ingress and egress to all plaintiffs' lots, by the water which had been diverted from the natural channels washing out the street bed and grading on it so that the street could not be used as a way of ingress and egress to plaintiffs' lots; that before the acts complained of, lots numbered 2 and 5 were suitable and valuable for business purposes and that the flowing of the water on the lots and depositing of sediment and killing of the grass and washing of the street caused by the acts of defendant had rendered the lots unfit for building purposes, damaging plaintiffs to the amount of $500, for which, and for $500 punitive damages, plaintiffs demand judgment.

The answer, after a general denial and denial of information as to the ownership of the lots claimed by plaintiffs, avers, in substance, that what plaintiffs designate as a watercourse is in fact a street lying between the towns of Illmo and Edna; that it had received no attention from the authorities of either town; had been in an extremely bad condition for a great period of time and fit for use only in dry weather and even then is in bad condition; that in wet weather it is well-nigh impassable and had been so for a long time prior to any mentioned in the petition, on account of washes and a spring from the earth which is in the street; that the street is an old road, worn deep, and is part of an old gully extending beyond and north of the point of intersection of two streets and acts as a conduit for water accumulating during heavy rains, and for a long period prior to that mentioned in the petition has overflowed its banks along and opposite the lots mentioned in the petition as belonging to plaintiffs; that prior to any time mentioned in the petition, the lots described as belonging to plaintiffs, being lower, had been overflowed from water accumulated from the surface of the adjacent territory on account of the condition of the road now called a street. Averring that plaintiffs had themselves diverted the water so as to flood their lots, defendant denies that he at any time did any work, ditching or damming on the premises, or along the street, or roads mentioned in the petition, except as street commissioner of the town of Edna, and that all the work he has done at any time in the streets, roads or premises was done in a careful and "husbandlike" manner for the purpose of bettering the streets and roads and improving the vicinity for the benefit of the public.

A reply was filed and the cause went to trial before a court and a jury.

It is not necessary to set out the evidence, it being sufficient to say that there was evidence along the lines of the pleadings of the respective parties.

After the trial had progressed and several witnesses had been examined, it developed that plaintiffs were not owners in common nor jointly interested in the four lots described, but that the plaintiff Frank W. Bean owned lot 2 and the north half of lot 3, the plaintiff Laura S. Bean being owner of the others, whereupon plaintiffs took a nonsuit as to Frank W. Bean.

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