Bruntmeyer v. Squaw Creek Drainage Dist. No. 1.

• Citation: 194 S.W. 748,196 Mo. App. 360
• Decision Date: 30 April 1917
• Docket Number: No. 12365.,12365.
• Parties: BRUNTMEYER v. SQUAW CREEK DRAINAGE DIST. NO. 1.
• Court: Court of Appeal of Missouri (US)

194 S.W. 748

196 Mo. App. 360

BRUNTMEYER v. SQUAW CREEK DRAINAGE DIST. NO. 1.

No. 12365.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

Appeal from Circuit Court, Holt County; Wm. C. Ellison, Judge.

Action by Charles J. Bruntmeyer against the Squaw Creek Drainage District No. 1. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 144 S. W. 511.

Robert L. Minton, of Mound City, for appellant. S. F. O'Fallon, of Oregon, Mo., for respondent.

TRIMBLE, J.

The defendant is a drainage district organized in the year 1906 pursuant to section 8251 et seq. of article 3, c. 122, R. S. Mo. 1899, as re-enacted by the statute of April 8, 1905 (Laws 1905, p. 190). With certain subsequent amendments made thereto, said laws now appear in the revision of 1909 as section 5496 et seq. Plaintiff, as the owner of a farm outside of said district, brought this suit in March, 1907, to recover damages for loss of his crop caused by an overflow of water thereon brought about by the system of dikes, ditches, and drains constructed by said district for the drainage of the lands embraced therein. A verdict of $150 in plaintiff's favor was returned, and defendant appealed to this court, where the case was submitted at the March term, 1911. Subsequently it was ordered transferred to the Supreme Court on the theory that a determination of the issues necessarily involved the construction of section 21 of article 2 of the Constitution, which forbids the taking or damaging of private property for public use without just compensation. It seems, however, that a decision of the case does not involve the construction, but merely the application, of the Constitution. At any rate the Supreme Court on the 11th of December, 1916, retransferred the case, and it is now before us for disposition.

Some claim seems to be made by appellant that the evidence was insufficient to sustain the verdict, but even a casual examination of the record discloses substantial evidence to support the claim that the digging of the ditches and the creation of the dikes alongside, which the defendant caused to be constructed, in the creation of its system and plan of drainage of the lands within its boundaries, caused the waters complained of to be gathered up and thrown in a volume upon plaintiff's land to the injury and destruction of the crop growing thereon. There being substantial evidence to support the finding made by the jury and approved by the trial court, we cannot disturb the verdict on the theory that the evidence does not support it. American Brewing Co. v. City of St. Louis, 209 Mo. 600, 108 S. W. 1; Bray v. Kremp, 113 Mo. 552, 21 S. W. 220; State v. Richardson, 117 Mo. 586, 23 S. W. 769.

Error is claimed in the exclusion of evidence in the examination of one witness. Defendant was examining him concerning the water and the conditions on plaintiff's land, in the course of which the witness remarked he was attempting to go to Forest City at the time he saw the conditions he testified to. The court's action in excluding this was construed by counsel for defendant as excluding certain evidence he was intending in his own mind to bring out which would show that the water did not come from the source claimed by plaintiff. That counsel and court did not understand each other is clear, because the court in its rulings expressly said it would admit evidence showing where the water came from. Counsel did not state what the conditions were that he wanted to show on adjoining lands or that they were offered as tending to show where the water came from. It is clear that the court was not excluding any evidence which would tend to show the source of the water. This is shown not only by the rulings made by the court at the time, but also by the fact that everywhere else and throughout the trial defendant was allowed full opportunity to develop all the testimony that it now claims it was here prevented from showing.

The sole instruction asked by defendant (aside from the one in the nature of a demurrer to the evidence) was properly refused. The effect of the instruction was to tell the jury that, even though the acts of the defendant contributed to plaintiff's injury, yet, unless they were the sole cause thereof, plaintiff could not recover. This is not the law. The matter attempted to be covered by the instruction, had it been properly drawn, was fully covered by instructions given by the court on its own motion. So that, even if the instruction had been faultless, its refusal would not have been error. Reno v. City of St. Joseph, 169 Mo. 642, 659, 70 S. W. 123; Beatty v. Clarkson, 110 Mo. App. 1, 6, 83 S. W. 1033.

Defendant's main contention is that, even though the construction of its drainage system did result in injury and damage to plaintiff's land outside of and adjoining the district, still there is no liability on the part of the drainage district because it is a governmental agency, an arm of the state, and as such cannot be sued for the damage so caused by the creation of its drainage system.

In order to understand the precise question here presented, the exact nature of plaintiff's cause of action must be kept clearly in mind. This is not a suit for the unauthorized or negligent acts of the officers or agents of the district. But it is a suit wherein plaintiff alleges that in the creation of its drainage enterprise defendant constructed its system of drains, dikes, and ditches, and cut and intersected creeks and water courses, thereby turning and diverting the waters therein from their natural water course and from the natural drainage thereof, and, after collecting said waters, conducted them by means of said drains and ditches to a point or points near to plaintiff's land, which land was outside of said district, and there deposited them upon, or caused them to overflow, plaintiff's land to his injury and damage. In other words, the establishment of the district and its drainage system resulted in collecting the waters of creeks and other water courses, and also surface water, and casting them in a volume upon plaintiff's land, which theretofore enjoyed its own natural drainage and was free from overflow. And plaintiff's land was outside of the district, and no right to so subject it to such overflow had ever been acquired in any way, nor had opportunity ever been afforded for an assessment of damages to said land arising from the creation of said district. It would seem that, if the drainage district is exempt from liability under such circumstances, then plaintiff's...