Brown v. H & D Duenne Farms, Inc., 16365
| Decision Date | 21 November 1990 |
| Docket Number | No. 16365,16365 |
| Citation | 799 S.W.2d 621 |
| Parties | Mark BROWN, Plaintiff-Appellant, v. H & D DUENNE FARMS, INC., Donald B. French, Robert R. French, Sr., Frank S. French, Sr., Oliver B. French, III, Teresa F. Small, Jane G. Cross, Conservator for Joseph H. French, and William G. French, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
King E. Sidwell, Blanton, Rice, Sidwell and Ottinger, Sikeston, for plaintiff-appellant.
John L. Oliver, Jr., Oliver, Oliver, Waltz & Cook, P.C., Cape Girardeau, for defendants-respondents.
Plaintiff Mark Brown and the named defendants own farmland located on Buffalo Island, an island which lies on the west side of the Mississippi River adjacent to Scott and Mississippi Counties in Missouri. Assuming (though such is not the case) that the Mississippi River runs north and south at this point, plaintiff's land lies north of the defendants' realty. Buffalo Island lies a short distance north of the confluence of the Mississippi and Ohio Rivers and is subject to what the parties call "headwater" flooding when the Mississippi rises and "backwater" flooding when both rivers rise simultaneously. In 1985 and 1986, defendants French and Duenne constructed a headwater flood control levee at the north line of the French property. This "new" levee, as it appears on plaintiff's exhibit 2, runs nearly perpendicular to the old levee system which had protected and drained Buffalo Island until 1973.
In February 1986 plaintiff Mark Brown brought this action in the Circuit Court of Scott County, averring that he and the defendants owned farmland located on Buffalo Island, "between the main line levee and the Mississippi River." Plaintiff further alleged that his land lay at an elevation above or "higher than" that of the defendants; that a natural watercourse, running generally north and south, traverses the parties' land, which is bounded on the west by Buffalo Island Chute and the mainline levee and bounded on the east by the west bank of the Mississippi River. Plaintiff further averred that the farmland owned by the parties was subject to "headwater flooding" by the Mississippi River and "backwater flooding" by the Ohio River.
It was further averred that the private levee constructed by the defendants in 1985 and 1986 traversed the farm of defendant Donald French and ran from east to west in such manner as to obstruct the flow of water through the channel on plaintiff's land onto and through the defendants' land. It was also alleged that construction of the private levee by the defendants had obstructed a natural channel and had rerouted the headwaters of the Mississippi River, damaging the Buffalo Island Chute which adjoins the plaintiff's land. Averring that he was entitled to a natural and unobstructed flow of water through the natural channel which traversed his land, plaintiff alleged that obstruction of the channel by the defendants had damaged his land in various ways, and averring further that he had demanded removal of defendants' levee, plaintiff prayed a mandatory injunction commanding removal of the levee, and further prayed that defendants be permanently enjoined from constructing or maintaining any structure which would interfere with the natural drainage of the watercourse which traverses plaintiff's land so as to cause water to flood or accumulate on the plaintiff's land.
In a second count plaintiff pleaded damages in the amount of $12,500 by reason of defendants' actions in construction of a levee which caused flooding of his property. In Count III, plaintiff repetitiously pleaded that the collection and diversion of water onto his land by the defendants was "unreasonable and reckless and constitute[d] negligence by defendants." Plaintiff prayed the same relief as that prayed for in Count I of his petition. In a fourth count, plaintiff pleaded that the Buffalo Island landowners had been unable to agree as to the best method of protecting Buffalo Island against damage by flood. Prayer of this count was that commissioners be appointed to consider any and all matters not agreed upon by the "owners referred to herein" and to make recommendations to the court. It should be noted, however, that the case was tried on the theory that the plaintiff was entitled to a mandatory injunction.
The trial court heard a good deal of evidence and received many exhibits and, the record indicates, inspected the land involved in this case--with the consent of the parties--even though the court indicated at the outset that it was familiar with Buffalo Island. Extensive findings of fact and conclusions of law were made, and the court concluded: 1) that the plaintiff was not entitled to a mandatory injunction compelling removal of the levee constructed by the defendants; 2) that the plaintiff had adduced no adequate evidence of any monetary damage as alleged in Count II of the petition; 3) that plaintiff had not sustained his burden of proof as to Count III of the petition, but 4) the court had inherent equitable power and jurisdiction to take action to alleviate the parties' mutual and common problems, therefore: a) the parties were ordered to take such action as might be necessary to establish a circuit court levee district under the control of the Circuit Court of Scott County; b) upon formation of the levee district, it was to engage a specified primary engineer and technical consultants to establish relative levee heights and formations, and c) the court would retain jurisdiction of the cause to insure creation of the drainage district according to statute and equitable principles. The plaintiff has appealed.
Three assignments of error have been briefed. The plaintiff contends first that the court erred in denying a mandatory injunction ordering removal of the private levee because that levee obstructed a natural watercourse or drain way in that the drain way blocked had a well-defined channel, a bed and banks and a definite flow or current and a definite source and discharge. As a second point, plaintiff contends that the trial court erred in refusing to order removal of the private levee because the diversion of the natural flow of water constitutes an unreasonable burden upon the plaintiff which cannot be ameliorated except at inordinate expense to the plaintiff. Finally, the plaintiff contends that the trial court erred in ordering the formation of a circuit court levee district, designating an engineer and technical advisers rather than commissioners to consider matters upon which the landowners cannot agree, because such an order does not conform to the requirements of Chapter 245, RSMo 1986, 1 in that such an order cannot be binding upon landowners not parties to this action and in effect surrenders to the defendants the court's duty to resolve private drainage rights.
Having thus stated the issues raised by plaintiff's pleadings and the decree or judgment of the court, and having noted the points raised on appeal, there is a matter which we must note preliminarily. As we have said, the trial court heard a good deal of testimony and received a number of exhibits in evidence, but unfortunately the testimony is not correlated with the exhibits. One or two quotations from the record will illustrate our point. Plaintiff was called as a witness in his own behalf for the purpose, among others, of identifying his land on Buffalo Island. In the course of his direct examination, plaintiff was shown plaintiff's exhibit 53, which, it appears, is part of a map produced by the Army Corps of Engineers. Plaintiff's examination with respect to this exhibit ran thus:
A. The area--well, there's the word 'Buffalo Island' on here. The area that we are commonly referring to as Buffalo Island encompasses an area which goes up here, which gets considerably slim north of this other island in the river here, from this area approximately up in here down to--you're getting close to the dry bayou area down in here, but it's somewhere--I believe the jurisdiction goes to about right in here where--this particular dash line--but it's in this area between here and here.
Q. This is an area on the map which has been labeled as 'Powers Island,' but this you have described to the Court today as [sic] south of what is labeled here as 'Powers Island'?
A. Yes.
Q. In fact, there's a red number 27 which is on the photograph, and it starts generally at that red number 27 and extends southward?
A. Yes.
Q. Does it extend south to an area on the map labeled sliding tow head?
A. Yes.
Q. And that area is labeled on this map as Buffalo Island?
A. Yes.
Q. Show the Judge where your farm real estate is located.
A. Here, as depicts Bunge Road, my farm is in this area right here, property line would be approximately right through here.
Q. You have pointed to an area which has the word 'Buffalo' on it?
A. Yes, sir.
Q. There is a red line extending east and west across the Cache quadrangle on Buffalo Island which has a red number 5 above it; is that correct?
A. Yes, sir.
Q. Does that red line correspond with what is shown as a green line on Plaintiff's Exhibit No. 1?
A. Yes, sir. Yes, sir, it does.
Q. And that is what you have previously identified as a corner part of your farm; is that correct?
A. Yes. That red line enters my property at this juncture, right where there is an elevation number there, below and slightly to the left of the number 5." [Emphasis added.]
* * * * * *
A black and white copy of exhibit 53 has been filed as one of plaintiff's exhibits in this court. The filing of an accurate copy of an exhibit does not violate Rule 81.15, but the copy of exhibit 53 filed here furnishes no clue to the colored objects to which the...
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