Bell v. Union Elec. Co. of Mo.

• Decision Date: 01 April 1963
• Docket Number: No. 23655,23655
• Citation: 367 S.W.2d 812
• Parties: Don BELL, Beulah S. Drake and Eivin Hubbs, Respondents, v. UNION ELECTRIC COMPANY OF MISSOURI, a corporation, Appellant.
• Court: Missouri Court of Appeals

Page 812

367 S.W.2d 812

Don BELL, Beulah S. Drake and Eivin Hubbs, Respondents, v. UNION ELECTRIC COMPANY OF MISSOURI, a corporation, Appellant.

No. 23655.

Kansas City Court of Appeals, Missouri.

April 1, 1963.

Poague, Brock & Wall, Clinton, H. C. Salveter, Sedalia, Harry H. Kay, Eldon, John A. Woodbridge, St. Louis, of counsel, for appellant.

George H. Miller, Sedalia, Floyd L. Sperry, Jr., Clinton, for respondents.

CROSS, Judge.

This is a tort action in the nature of trespass maintained by three plaidntiffs who seek to recover damages for destruction of their crops resulting from the flooding of the Osage River in June and July of 1951, alleged to have been caused by the construction, operation and maintenance, by defendant Union Electric Company of Missouri, of the Bagnell Dam and the Lake of the Ozarks formed thereby. The petition is in three counts, each of which relates to a separate tract upon which the destroyed crops belonging to the respective plaintiffs were grown. Trial was to a jury which returned a verdict in plaintiffs' favor in the aggregate sum of $8,023.00. Defendant has appealed from the judgment.

The Osage River is a natural watercourse which flows generally to the east from the Missouri-Kansas boundary line through the counties of Bates, St. Clair, Benton, Camden, Morgan and Miller to Bagnell, Missouri, thence on to its confluence with the Missouri River near Jefferson City. In the years from 1929 to 1931, defendant constructed a hydro-electric dam across the Osage River near Bagnell at a point about 95 miles east of Warsaw. As a result, the upstream waters of the Osage River were impounded in a large, irregularly shaped lake, known as the Lake of the Ozarks, which extends from the dam upstream in the Osage River channel and spreads out into that river's tributaries. When the level of the lake is maintained at 660 feet above mean sea level, considered to be full reservoir, the impounded waters extend westward to and 'feather out' at the County Line Bridge between Henry County and St. Clair County, approximately thirty miles west of Warsaw. ¹ He farms on which plaintiffs cultivated their crops are located along the left bank of the Osage River, approximately 26 to 28 miles west of Warsaw. After unusually heavy rains in the months above mentioned, the lake rose to a maximum reservoir level of 664.40 feet at the dam on July 7, 1951.

Plaintiffs' theory of recovery, as stated in the petition, is in substance as follows: (a) that the maintenance and operation of Bagnell Dam across the Osage River caused waters to be impounded so as to form the Lake of the Ozarks; that the impounded lake waters pass through the dam by a number of flood gates; that the water level is controlled by the opening and closing of the flood gates; that defendant had complete control of the dam and all its facilities (including the flood gates), and that control of the lake water elevation was exclusively exercised by defendant; (b) that in June and July of 1951, flood waters from the Lake of the Ozarks overflowed onto plaintiffs' farm lands and injured and damaged their crops; (c) that the retardation of the flow of the Osage River and its tributaries resulting from defendant's operation of the dam has caused silt, sand, gravel, clay and other materials being carried in the water to settle to the bottom, thereby filling up the beds of the river and its tributaries and decreasing the water-carrying capacity of those streams so that in times of heavy rainfall the flood water is not carried away at a normal rate and in normal amounts, thereby causing the said flood water to back up and overflow the lands of the plaintiffs; and, that said overflow and resulting damages would not have occurred except for the presence, maintenance and operation of the dam; (d) that the lake also acted as a retarding agent upon the natural drainage of overflow waters from the river and its tributaries, thereby greatly impairing and decreasing the natural flood water-carrying capacity of the river and its tributaries, and thereby contributing to cause the overflow of plaintiffs' lands and contributing to cause flood waters to remain upon said lands and damage plaintiffs' crops; (e) that plaintiffs' crops were destroyed as a direct result of the construction, maintenance and operation of the dam.

In Count One of the petition it is alleged that plaintiff Don Bell was the owner of certain lands and the owner of the crops that were destroyed. Count Two contains allegations that plaintiff Beulah Drake was the owner of certain real estate and the owner of one-half the crops thereon, and that the crops were destroyed. In Count Three it is alleged that plaintiff Elvin Hubbs was the owner of one-half of the crops grown on the Beulah Drake farm and that the crops were destroyed.

Defendant, by answer, admitted the corporate existence of defendant and its ownership and operation of the dam and denied all other allegations of the petition. By way of affirmative defense, the defendant pleaded that the rainfall which caused the 1951 overflow was an act of God, but abandoned that defense when the case was submitted to the jury. Defendant further pleaded, as to counts two and three, that it was relieved of liability because of an easement granted by plaisntiff Beulah Drake.

Plaintiffs introduced voluminous evidence tending to show that before the dam was built the Osage River was a clear, free-flowing stream, with gravel bars and shoals, but that since the dam was constructed the river has silted up, and its water flows more slowly; and, that there are extensive and deep silt deposits in the main stream channel, on the islands, the sloughs, and the banks of the stream. There is a silted area at Brill's Hill near Warsaw extending out a distance of 150 to 200 feet that is 10 to 15 feet deep. Toehead Island at Warsaw and the adjoining slough are silted up level with the river bank to a depth of 15 to 20 feet. There are silt deposits around Wingate Island as deep as 60 to 70 feet. The mouth of the Pomme de Terre River (formerly deep water) has been silted to a depth of about 12 feet except for a small channel. Dean Island is silted and mudded over. Silt is ten to twelve feet deep at Smart Island. There are large silt deposits near the Bells' farm and silting in sloughs and around islands appears as far west as the County Line Bridge.

It was the testimony of plaintiffs' witnesses that the river channel had been restricted from 30 to 35 per cent at Brill's Hill, about 25 to 30 per cent at Wingate Island and 33 1/3 per cent at Smart Island. Since the dam was built there is more back water and it stays longer. In the vicinity of the Breshears farm there was more rainfall in 1929 and in 1935 than there was in 1951, but the river got higher in 1951 than in 1929 or 1935. Plaintiffs' lay witnesses testified that since the dam was built and the lake formed it takes less rainfall to put the river out of banks and the flood waters stay up longer; that when moving water of the river hits slower water it doesn't get away as fast; that the land overflows more often, more quickly, and with less amount of water.

Plaintiffs introduced in evidence answers made by defendant in response to interrogatories, which show that there were 12 floodgates in the dam, each 23 feet by 34 feet in size, with a total capacity to pass water varying from a volume of 148,800 cubic feet per second at lake level of 660 feet, to a volume of 190,800 cubic feet per second at lake level of 664 feet; and, that these flood gates can be opened to full capacity from a closed position in from 5 to 10 minutes. Plaintiffs also introduced in evidence, as exhibits, cpies of the 'Osage Plant Operating Data' for the months of June and July of 1951 which had been furnished by defendant in response to plaintiffs' interrogatories. These are permanent records kept by defendant which show the condition of the lake from day to day and reflect the details of the daily operation of the floodgates during the named months. The 'operating data' discloses the following facts: throughout June of 1951 the lake level remained below 660 feet until the 25th day of the month; beginning on that day the lake level began to rise above 660 feet and steadily, day by day, rose to a maximum of 664.40 feet by July 7th; beginning on June 24th, there was a sharp rise in the 'inflow' from river waters, which increased from 68,000 cubic feet per second on that date to 133,500 cubic feet per second on July 6th, and 122,500 cubic feet per second on July 7th (the day of maximum lake level); in the month of June the floodgates were first opened on June 24th; on that day defendant 'wasted' 12,400 cubic feet per second through the flood gates and daily increased the 'waste' to 98,000 cubic feet per second July 7th; it appears that on each day from June 24th to July 7th, the 'inflow' exceeded the 'wastage' through the flood gates which had a daily capacity to exhaust water which exceeded the corresponding daily amount of 'inflow'.

Darrell Adams, an engineer testifying for plaintiffs, stated that the presence of the silt deposits indicated that velocity of the river waters had been slowed, and that their flow was retarded both by the silt deposits and by the presence of the lake acting as an obstruction to the river channel. Mr. Adams stated that in his opinion the 1951 flood was caused by the fact that the lake prevented the river waters from flowing naturally and caused the waters to 'spread out', and because the defendant 'stored' water in the latter part of June and in the first part of July and thereby let the lake level get higher and higher. The witness testified that 'the main reason (for the 1951 flood) was the fact that the flood gates weren't open', and, that the water was retarded and caused to reach a higher flood level because defendant was 'storing water and letting the lake level get higher and higher'.

Defendant also...