Bodam v. City of New Hampton

• Decision Date: 24 January 1927
• Docket Number: No. 15853.,15853.
• Citation: 290 S.W. 621
• Parties: BODAM v. CITY OF NEW HAMPTON.
• Court: Missouri Court of Appeals

290 S.W. 621

BODAM v. CITY OF NEW HAMPTON.

No. 15853.

Kansas City Court of Appeals. Missouri.

January 24, 1927.

Appeal from Circuit Court, Daviess County; John L. Schmitz, Judge.

"Not to be officially published."

Action by John Bodam against the City of New Hampton. Judgment for plaintiff, and defendant appeals. Affirmed:

C. C. Ross, of Bethany, for appellant.

F. P. Stapleton, of Albany, for respondent.

BLAND, J.

This is an action for damages alleged to have been caused by the diversion of water by the defendant from one of its streets onto plaintiff's property. There was a verdict and judgment in favor of plaintiff in the sum of $200, and defendant has appealed.

The facts show that plaintiff was the owner of property situated at the southeast intersection of Lincoln and Elm streets in the city of New Hampton. Lincoln street runs east and west and Elm street north and south. Elm street, however, does not extend any further north than Lincoln street. Plaintiff's property extended along Lincoln street 120 feet and along Elm street for a distance of 50 feet. There was a frame dwelling house on the property facing Lincoln street, situated 20 feet south of that street and about an equal distance east of Elm street. There was a cave or cellar about 10 feet south of the southwest corner of the house and a small mill about 40 feet east of the house, near Lincoln street. Plaintiff purchased the property in 1910. It was situated at the foot of a hill. The grade of Lincoln street, beginning at the northwest corner of plaintiff's property, was between 6 and 7 per cent. for a distance of about 300 feet, or to the top of the hill to the west. The land lying north of Lincoln street and plaintiff's property was likewise higher than said property.

In 1923 defendant paved Lincoln street through the business part of New Hampton. The record recites an admission of the parties to the effect that in making this improvement defendant constructed a curb, gutter, and pavement, and otherwise improved Lincoln street from the east line of Elm street to the east line of Vine street; the easterly point of the improvement being at a point opposite the northwest corner of plaintiff's property. The record also recites an admission that this improvement was made after the city had taken all of the necessary legal proceedings for the purpose of doing the work. There is, however, no claim that the city ever conducted any proceedings to change the grade of Lincoln street. For a time after plaintiff purchased the property the north and south city limits ended at the northwest corner of his property, but some time prior to the making of the improvements in question on Lincoln street the limits of the city were extended eastwardly. Beginning with the time he purchased the property and until the street was paved, water coming onto Lincoln street drained in ditches along each side of said street from the west towards the east and finally flowed into the creek about 200 yards east of plaintiff's property. Plaintiff's property during that time was slightly above the grade of Lincoln street and prior to the improvement thereof by the city the surface water collecting on Lincoln street had never at any time been discharged or thrown upon plaintiff's property.

In constructing the curb, gutter, and pavement defendant graded Lincoln street so that at the northwest corner of plaintiff's property it was about 2½ feet higher than the property. A. catch basin was made at the curb of the pavement of Lincoln street on the west side of Elm street to take care of the water coming down the hill on the south side of Lincoln street. The evidence shows that this catch basin was not large enough to carry the water coming down or flowing toward it from the west and was constructed in such a way that when it rained the openings became clogged with trash and debris and for this reason at times it would not carry off any water whatever, so, by reason of its lack of capacity and its stoppage by trash, water that could not get into the catch basin would pass around the same.

Elm street was not paved, but, when the city raised the grade of Lincoln street at the intersection of the two streets, it filled in Elm street immediately south of the pavement so that there would be an approach from Elm street to the paved street. Elm street was 60 feet in width. There was no curbing on the south side of Lincoln street where it intersected Elm street, except for a distance of 13 feet, beginning with the northwest corner of plaintiff's property, or the east line of Elm street. In making the Elm street approach to the pavement dirt was left higher than the pavement along the west half of Elm street, so that water running around the catch basin escaped upon the east half of Elm street and a greater part of it ran directly onto the northwest corner of plaintiff's property, but some of it ran down Elm street, and thence onto his property. This water carried with it a large amount of trash and debris, which was deposited on plaintiff's property and caused the front part of the same to be filled to the extent of six or eight inches. Plaintiff's cave or cellar would be filled with water and filth and he would be afflicted generally with the usual "annoyances accompanying such flooding of property. Plaintiff testified that the water thus came onto his property every time it rained. It was shown that, after the improvements were made by the city, the state constructed the pavement eastwardly on Lincoln street, connecting with the pavement the city had made, so that Lincoln street formed a continuously paved street leading out of the city.

It is insisted that the court erred in striking out the following allegation in defendant's answer:

"Defendant for further answer states that said improvements were made in accordance with directions of the state government."

In this connection it is argued that, although the state had previously delegated the control of the use of its streets to the defendant, in 1921 the state revoked this power as far as a state highway running through a city is concerned (see Laws 1st Ex. Sess. of 1921, pp. 131-167 inclusive), and that Lincoln street had been made a part of the state highway system; that the improvement made upon it by the city was under the direction of the state highway commission and was done under plans and specifications made by that agency of the state. Assuming, but not deciding, that these circumstances would exonerate the city from liability in this case, sufficient facts were not pleaded in the answer to show the matters that defendant contends were present. The answer merely alleged that the improvements were made in accordance with the directions of the state government. There is no allegation, even, that Lincoln street had been designated a state highway. Even under defendant's theory this would be no defense, unless it was made under the provisions of the act of the Legislature stated supra. Defendant failed to plead the necessary matters to come within the provisions of that act even assuming that they had any bearing on the situation. Section 8498, R. S. 1919, gives cities of the fourth class, in which class defendant falls, exclusive control over its streets and public highways, and it was not Sufficient, even under defendant's...