Beauchamp v. Taylor

• Decision Date: 04 June 1908
• Citation: 132 Mo. App. 92,111 S.W. 609
• Parties: BEAUCHAMP v. TAYLOR et al.
• Court: Missouri Court of Appeals

111 S.W. 609

132 Mo. App. 92

BEAUCHAMP v. TAYLOR et al.

St. Louis Court of Appeals. Missouri.

June 4, 1908.

1. WATERS AND WATER COURSES — SURFACE WATERS—LIABILITY FOR OBSTRUCTION OF FLOW.

The owner of lower or servient ground may, if he chooses, lawfully obstruct or divert the natural flow of surface water, and may turn it back or off or over the lands of other proprietors without liability for such obstruction, provided it is not done recklessly so as to injure another, and an instruction predicating a dominant owner's right to recover for damages caused by obstruction of the natural flow of surface water by a servient owner, on plaintiff's ability to drain his land at a reasonable cost, instead of defendant's recklessness in obstructing the surface water, is erroneous.

2. SAME—NATURAL WATER COURSES—LIABILITY FOR OBSTRUCTION.

Any obstruction of the flow of water in a natural water course resulting in injury to another person, renders the obstructing party liable for resulting damages, however carefully the obstruction may have been made.

3. APPEAL AND ERROR—REQUESTED INSTRUCTIONS— ESTOPPEL TO ALLEGE ERROR.

Where both parties to an action adopt a theory of the law by requested instructions, they are concluded thereby.

4. WATERS AND WATER COURSES—OBSTRUCTION — NUISANCES—ACTIONS.

An obstruction to the flow of water in a natural channel is a nuisance, and while one who purchases subsequent to the erection of the obstruction cannot recover for the erection of a nuisance, he may recover for any damages sustained from the maintenance of the nuisance.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Isaac D. Beauchamp against William F. Taylor and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Plaintiff purchased from W. T. Shipp, the north ¼ of the southeast ¼ of section 14, township 52, range 1 east, in Pike county, Mo. The tract is one-half mile long east and west by one-eighth of a mile wide north and south. The east end of the tract adjoined defendants' lands. Both tracts are low or bottom land, defendants' lands being lower than plaintiff's. Plaintiff's tract (40 acres) is fringed along the south side by a bluff and on the north end by a ridge. The general slope of the country about it is west to east, and water falling upon and running through plaintiff's land flowed onto defendants'. A spring known as "Cooper's Spring," has its source in the hills west of plaintiff's land, and for some distance the waters from the spring have a well-defined channel into which other waters from the adjacent lands find their way and flow eastwardly onto and through plaintiff's land and the adjoining lands of defendants. The evidence is contradictory as to whether the channel of the spring branch extended to and into plaintiff's land. Plaintiff's evidence tends to show that it did until it was obstructed in the manner to be stated below. Defendants' evidence tends to show that a low swamp or swale set in before the spring branch reached plaintiff's land; that the swale ran through both the land of plaintiff and that of defendants, and before the spring branch reached plaintiff's land, it lost its channel, and the water spread out over the swale and either stood there, or, if sufficient in quantity, ran on down the swale into other channels and finally emptied into the Mississippi river. In 1897, defendants built a levee between their land and plaintiff's, which dammed up the water flowing from the spring branch and caused it to back up over a portion of plaintiff's 40-acre tract. The levee was built without the consent of Shipp, the then owner of the land. Later on, a portion of the levee was washed out and it was repaired and built higher by defendants without Shipp's consent and seemingly against his protest. In 1902 and 1903, plaintiff planted the swale on his land in corn but lost both crops on account of water which the levee caused to back up and stand on the land. He alleges...