Blydenburgh v. Amelung

• Decision Date: 06 January 1958
• Docket Number: No. 22701,22701
• Citation: Blydenburgh v. Amelung, 309 S.W.2d 150 (Mo. App. 1958)
• Parties: N. C. BLYDENBURGH and Nova Blydenburgh, Respondents, v. Kenneth R. AMELUNG and Mrs. Kenneth R. Amelung, Appellants.
• Court: Missouri Court of Appeals

Page 150

309 S.W.2d 150

N. C. BLYDENBURGH and Nova Blydenburgh, Respondents, v. Kenneth R. AMELUNG and Mrs. Kenneth R. Amelung, Appellants.

No. 22701.

Kansas City Court of Appeals, Missouri.

Jan. 6, 1958.

Robert E. Coleberd, Liberty, Dean F. Arnold, Kansas City, for appellants.

Williams & Norton, North Kansas City, for respondents.

BROADDUS, Presiding Judge.

Plaintiffs, husband and wife, brought this action against defendants, husband and wife, to recover damages alleged to have been caused to their property by defendants artificially impounding and discharging water onto plaintiffs' property. Trial before the Court and jury resulted in a verdict for plaintiffs for $1,900. Defendants have appealed.

The parties to this litigation are neighboring property owners. Plaintiffs are the owners of a lot which has a frontage on Troost, a north and south street in Kansas City North, Missouri, of 80 feet, and is 210 feet deep. Defendants own two lots which front on Tracy, a north and south street; the first street east of Troost. The rear of defendants' south lot adjoins the rear of plaintiffs' lot. The lots of defendants are approximately 15 feet higher in elevation than plaintiffs' lot. Defendants' lots slope from Tracy to the west towards Troost. The west half of defendants' lots is approximately the same level as the east half of plaintiffs' lot. Tracy beginning at a point south of defendants' property slopes north to the north line of defendants' property. Tracy North slopes south to this point where there is a culvert under the street. Surface water from the land on the east side of Tracy flows into a ditch along the east side of Tracy, and then through this culvert and onto defendants' property where it is gathered in a saucer or basin in the northeast corner of defendants' property and from there flowed southwesterly in a ditch sixteen inches deep and approximately sixteen inches wide across the north side of defendants' property in a southwesterly direction where it spread out and flowed onto plaintiffs' property.

Plaintiffs started construction of their house in the fall of 1954 and completed and moved into it in March 1955. In June of 1955, defendants laid an 8-inch tile from the saucer-like depression in a southwesterly direction to a point approximately 20 to 25 feet east and 20 to 25 feet north of the northeast corner of plaintiffs' lot, where the water was discharged through this tile onto the surface of the ground. Plaintiffs' evidence disclosed that during the first few months they occupied their property they had no difficulty with surface water, but that after the tile was installed there was a vast increase in the amount of surface water on their property resulting in the washing out of plaintiffs' garden, the washing off of the sod on the terrace, the washing and eroding away of top soil and shrubbery, and causing cracks to appear in the foundation and basement floor of their home; that the total damage to their home was $3,000. It also appeared from plaintiffs' evidence that in June 1956, approximately a year after the tile was installed, it was plugged up, and thereafter plaintiffs experienced no more difficulty with excess water on their property, even though there was more rainfall in 1956 than in 1955.

After the appeal in this case was taken and before final submission thereof plaintiff N. C. Blydenburgh died, and it was ordered by this court that this cause should proceed in the name of Nova Blydenburgh only.

Defendants first contention is that 'plaintiffs did not make a submissible case for the reasons: (1) Plaintiffs did not properly plead Section 54.11 of the Building Code of Kansas City by alleging with certainty the subject matter of this section of the code and the facts which constituted its violation, and for this reason failed to state a claim upon which any relief can be granted against defendants or either of them. (2) Plaintiffs did not allege in their petition nor prove that the alleged acts of defendants in violating this section of the Building Code of Kansas City were carelessly and negligently done by defendants. (3) Plaintiffs did not offer this section of the code in evicence which it is alleged defendants violated to cause their damages.'

It is true, as defendants assert, that plaintiffs did not properly plead the Building Code of Kansas City, and did not offer the same in evidence. They proceeded, however, to try their case on the theory that the acts complained of on the part of the defendants constituted a nuisance in that the owner of a dominant estate cannot permit water to collect on his own premises and then discharge it in destructive quantities at one point in a body onto the servient estate. This is a well developed theory of law in Missouri as shown by the cases of Kiger v. Sanko, Mo.App., 1 S.W.2d 218, 221 and Clark v. City of Springfield, Mo.App., 241 S.W.2d 100, 106. An examination of paragraph 6 of plaintiffs' petition clearly reveals that sufficient facts were alleged to bring the case within the theory of the cases above cited. It was not necessary for plaintiffs to allege that the acts complained of were negligently done. As said by this court in the case of Casey v. Wrought Iron Bridge Co., 114 Mo.App. 47, 61, 89 S.W. 330, 334: 'There is a marked distinction, though...