Borgmann v. Florissant Development Co., 35045
| Decision Date | 22 October 1974 |
| Docket Number | No. 35045,35045 |
| Citation | 515 S.W.2d 189 |
| Parties | George G. BORGMANN et al., Plaintiffs-Appellants, v. FLORISSANT DEVELOPMENT COMPANY et al., Defendants-Respondents. . Louis District, Division One |
| Court | Missouri Court of Appeals |
David R. Swimmer, Clayton, for plaintiffs-appellants.
Ziercher, Hocker, Tzinberg, Human & Michenfelder, Albert A. Michenfelder, Jr., Edward K. Fehlig, Clayton, for defendants-respondents.
The issue presented in this appeal is whether a landowner may develop a tract of land by building an apartment complex of 218 units plus ancillary improvements thereon and collect surface water into a weir located on his property and permit the overflow to be discharged onto the adjoining tract of land.
This appeal is from a judgment of the Circuit Court of St. Louis County denying to the plaintiffs-appellants (hereinafter the plaintiffs) an injunction restraining the defendants-respondents (hereinafter the defendants) from collecting and discharging surface water onto plaintiffs' land. We affirm.
In court tried equity cases, appellate courts must review the case de novo upon both the law and the evidence, giving deference to the opportunity afforded the trial court to judge the credibility of the witnesses, and not disturb the judgment of the trial court unless clearly erroneous.
Plaintiffs purchased the triangular tract of land, the subject of this suit, comprising approximately 2.9 acres of land improved by a farmhouse and barn situated in north St. Louis County on May 4, 1970. Defendant Florissant Development Company, a Missouri Corporation, is the developer of the Horizon Village Apartments on land abutting plaintiffs' tract and defendants, Harold Lieberman and Allan Lieberman, are partners d/b/a as Horizon Village Apartments Company. Plaintiffs' tract of land fronts 376 feet on Kemper Avenue, a platted but unimproved road, with its apex located at the northernmost boundary of the tract and adjoins defendants' tract at that point. From the apex of the triangle, plaintiffs' tract extends along the south boundary line of defendants' tract a distance of 452.38 feet in a more or less southwesterly direction, and then in a south to north direction some 251.55 feet to the south side of Kemper Avenue. In 1971 defendant Florissant Development Company's predecessor in title obtained a rezoning of the entire tract of land adjoining plaintiffs' tract on the south for the construction of an apartment complex. After the Florissant Development Company took title it commenced the development of Horizon Village Apartments including construction of various storm sewers, drains and swales on its property for the collection and diversion of surface waters in accordance with plans approved by the St. Louis County Department of Highways and Traffic and the Waste Water Control Division of the St. Louis County Department of Public Works. This litigation grew out of the construction of the apartment complex and plaintiffs' contentions that defendants have constructed the system of storm sewers in a manner so as to change the flow of surface waters from 'the natural water course' of the said surface waters and thus discharge large quantities of surface water onto plaintiffs' lands and into areas of plaintiffs' lands where no natural 'drainage way or water course' existed prior to the construction.
In the trial court the case was tried for the greater part on the basis of the testimony of engineers relative to how the surface waters flowed prior to development of defendants' properties and how they would flow thereafter.
Plaintiffs, in their case in chief, offered two witnesses: Mr. Borgmann, one of the plaintiffs, and Mr. Roy W. Phelan, the chief design engineer for the St. Louis County Department of Highways and Traffic, Mr. Borgmann's testimony was directed primarily to the effect of the topographical and surface water changes observed by a lay person before and after the development of the apartment complex by the defendants. The thrust of his testimony was that prior to the development of the apartments he had no surface water problems of any import. Following their development, however, his ground remains soggy after a rain and water lies almost continuously on his barn lot, access road and lower pasture making it impossible to build a riding ring for the use of his horses. He has been unable to grow anything but weeds in the area where the surface water now flows and he cannot mow the weeds because his tractor bogs down in the mud. He cannot graze nor exercise his livestock because of the muddy condition of his pasture land. Plaintiffs introduced into evidence photographs showing the condition of the land prior to the development of the complex and subsequent thereto, the latter showing ponding and flooding of the land.
Mr. Phelan testified that he was familiar with the plans for the apartment development and gave testimony which shall be considered hereinafter with respect to the effect of the development on the flow of the surface water.
Defendants presented two witnesses in their case in chief: Mr. Maynes, the Vice-President in charge of construction for the corporate defendant, and Mr. Glen Borgard, an engineer. Mr. Maynes testified that since the development of the complex he has noticed water running across plaintiffs' land when there were rainstorms, but that he had never seen plaintiffs' land flooded. He admitted that he had seen the road 'damp.' Mr. Borgard's testimony, like that of a rebuttal witness called by the plaintiffs, Mr. Frank Mitchell, an engineer, shall be more fully considered in that portion of this opinion treating the engineering aspect of the case.
Plaintiffs' tract is situated on lower ground than defendants' tract of land and slopes northwardly to a low point at the north boundary of plaintiffs' tract. The land, along the joint boundary line of the two tracts, reaches high points at the extreme ends and the low point is located approximately at the mid-point of the common boundary line. The northeast corner has an elevation of 537 feet and the southwest corner, 534 feet. The low point of elevation is 528.8 feet along the common boundary line, a difference of approximately 6 feet, and 524 feet at the northern property line of plaintiffs' tract, a difference of almost 5 feet.
Preparatory to the development of the apartment complex, plans and topographical maps were presented to and approved by the St. Louis County Department of Highways and Traffic, Waste and Water Control Division without on-spot inspection by the governmental agency and in reliance on the documents submitted. The plans as originally approved on October 21, 1971, showed that drainage of the defendants' property would be by means of an 18 inch pipe extending through an easement to be obtained on the plaintiffs' tract and emptying into a pond to the north of the plaintiffs' tract and on the north side of Kemper Avenue. For some reason defendants were unable to obtain the proposed easement and changed the plans so that drainage of its property as developed would be through a concrete catch basin and a 10 foot weir situated on the defendants' property adjacent to the north common boundary line with plaintiffs' tract, and the surface waters would then be discharged onto plaintiffs' land from the weir. As constructed, the weir would dissipate the energy of the surface waters flowing into the catch basin because the pipes carrying the surface waters were installed in such a manner that they discharge the surface waters from opposite ends of the weir and flow is further slowed by rip-rapping and the shape of the catch basin itself before the surface waters are discharged over the weir and onto plaintiffs' land. The contour lines on the second set of plans located the 528 foot elevation in a different location than shown on the original set of plans and the configuration of the contour lines for the 528 foot elevation were somewhat changed.
The testimony of the engineers for the parties to the litigation centered around the topographical maps and the effect of the development of the apartment complex on the drainage of the surface water from defendants' property onto plaintiffs' land. All three engineers testified that the weir was constructed so that it emptied surface water from the defendants' land into the same natural drainway on plaintiffs' land as nature had controlled the direction of flow prior to the development of the apartments. It was stipulated by the parties that prior to the development 3.58 acres of defendants' land drained surface waters onto plaintiffs' property; that subsequently, 3.4 acres of defendants' land channeled surface waters into the weir. The engineers further agreed that the weir was situated at the low elevation on the common boundary line of the properties. The critical issue was the effect of the weir with respect to the concentration of flow of the surface waters onto plaintiffs' property.
Mr. Phelan, a plaintiffs' witness, testified that the low point on the common boundary line of the two tracts was 528 feet and that this point was located approximately at the mid-point of the 450 foot common boundary; that this constituted a drop of some 6 feet from the maximum elevation of 534.2 feet at the southernmost end and 535.6 feet at the northernmost end of the boundary. At a distance 150 feet south of the low point the elevation was 530 feet and 100 feet north of the low point it was 532.8 feet. In his opinion, this difference in elevation constituted a swale, i.e., an area of surface water run-off without definable banks, into which the surface waters from the defendants' 3.58 acre tract would flow in a 'sheet flow type condition' along the greater part of the entire 450 feet of the common boundary, but with a concentration of surface waters at the low elevation point. He did opine that this runoff could not be confined fully to an area of 10 feet--the width of...
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