Cambest v. McComas Hydroelectric Co.

• Decision Date: 04 December 1922
• Docket Number: No. 14483.,14483.
• Citation: 212 Mo. App. 325,245 S.W. 598
• Parties: CAMBEST et al. v. McCOMAS HYDROELECTRIC CO.
• Court: Missouri Court of Appeals

245 S.W. 598

212 Mo. App. 325

CAMBEST et al. v. McCOMAS HYDROELECTRIC CO.

No. 14483.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge.

Suit by Virgil Cambest and others against the McComas hydroelectric Company. Judgment for complainants, and defendant appeals. Affirmed.

Transferred from Supreme Court, 239 S. W. 477.

John E. Dolman and Sam Wilcox, both of St. Joseph, for appellant.

Strop & Mayer and Graham & Silverman, all of St. Joseph, for respondents.

TRIMBLE, P. J.

This is an action in equity brought, as the petition alleges and the evidence shows, by the "owners of real estate * * * contiguous to and bordering upon, and in the immediate vicinity of, Platte river," to enjoin the maintenance of a dam across said stream.

The answer pleaded as authority for the construction and maintenance of said dam an act of the General Assembly of Missouri approved February 27, 1845 (Laws Mo. 1845, p. 77); that the dam erected thereunder was maintained ever since, and defendant succeeded to the right granted thereby; that in 1314 defendant reconstructed said dam and built a hydroelectric power plant for the generation of electric light and power; that plaintiff never protested against the reconstruction of said dam until long after it was built and was estopped by ladies; that "whatever consent was necessary" to be obtained from the United States government was obtained prior to the reconstruction thereof.

The evidence shows that, under the act of 1845 relied upon by defendant, a dam was built 8 feet in height, and a mill was established there to grind wheat and corn. In 1907 or 1908 the dam washed out and did not hold any water there, and no use of the place as a water power site was made, nor was any attempt made to replace or repair the dam or to use it for any purpose whatever until in 1914, when defendant, having purchased the land whereon had been the former mill site and dam, erected a concrete dam 15½ feet in height entirely across said river. During the construction of the dam various of the landowners adjacent to the river protested against its erection. The dam was built, however, and soon thereafter the waters which it held back washed around the end and formed a new channel. Defendant thereupon extended the dam on until it was across this additional channel, though at first this extension was not built up to the height of the rest of the dam. Later, because the dam as thus constructed would not supply enough water for defendant's purposes, the extended portion of the dam was raised to the height of the other part.

Platte river has a fall of about one foot to the mile, and the dam backed the water therein for a distance of 15 miles. Plaintiffs' evidence is that before the dam was built the banks of Platte river were 14 to 15 feet high in ordinary times, but they were at the time of the trial only 4 or 5 feet high; that, when the water level is at the top of the dam, the river is ready to flow out into surrounding lands. A number of creeks flow Into Platte river above the dam, some of which are of considerable size, one being about 60 miles long and enters Platte river about 4 miles above the dam and has a mouth go feet wide. These creeks prior to the building of defendant's dam properly rained the surrounding farms and speedily carried off the surface water. `But the evidence is that, after the dam in question was built, the mouths of these creeks were thereby caused to be filled up with silt, sediment, and rubbish, and this, as well as the water standing and held in Platte river, caused the waters in the creeks to back up for considerable distances, whereby the creeks themselves have become filled up and do not drain themselves speedily like they did before, and the construction of the dam has prevented the creeks from thus draining themselves so that they no longer drain the lands as before. The evidence further is that the dam backed water up over, and affected the use of, various roads which gave access to plaintiffs' lands and that while, prior to the construction of defendant's dam, small rains would not cause an overflow, yet after that they did, and that the dam not only causes such overflows, but the water remains upon the lands overflowed for such a length of time that they have now become wet, marshy, and unfit for the cultivation and raising of crops thereon; that not only do the creeks overflow from the causes named above, but that the water standing at such a high level seeps through the banks or rises by capillary action so as to make lands wet that would not otherwise be in that condition; that the tiling put in by some of the plaintiff landowners has been rendered useless for drainage purposes because the tiles have been filled up owing to the deposit of sediment therein by the waters held standing therein instead of being allowed to flow freely through them.

In fine, the evidence is such to justify not only the chancellor, but us, in saying, and indeed requires us to say, that unquestionably the plaintiffs have suffered a special injury on account of conditions directly produced and brought about by the erection of the dam. We have carefully read the evidence in the case, and cannot agree with defendant that it fails to show damage to plaintiffs' lands. It is true these lands, or at least some of them, are bottom lands and are subject to overflow in times of high water, but the erection of this dam, 15½ feet high, not only causes more frequent overflows and from lesser and theretofore insufficient causes, but it prolongs the presence of the water upon the lands after it has reached them, and causes water by seepage to dampen and injure land that would not otherwise be affected in that way. We do not overlook the evidence of the defendant's engineer that from an engineering standpoint the river's carrying capacity over the dam is greater than the original channel of the river before the dam was built. This, if true, does not controvert the practical fact that the dam causes the drainage facilities to fill up, and that the lands are overflowed and damaged in the way above indicated. It may be that theoretically the carrying capacity over the dam in times of high water or floods is greater than the channel of the river was originally and before the construction of the dam, but this does not controvert the fact that before the carrying capacity over the clam is reached or becomes available the damage is accomplished, nor that damage is caused by conditions created by the dam at more frequent intervals and by less otherwise effective causes than the high floods that sometimes do come and overflow certain lands, even though no dam whatever were there.

This being an equity case, of course we are not bound by the chancellor's finding, but our view of the evidence affords us no opportunity to reach a conclusion on this matter different in any substantial degree from his.

At the trial the chancellor overruled defendant's motion to dismiss the bill, and defendant now urges that it should have been sustained. It is no doubt well settled that, even though the petition states facts which show that the nuisance complained of is a public one, yet private individuals can maintain a suit in equity to abate it, if it is alleged and shown that they suffer a special injury over and above that suffered by the public or community at large, and that the injury is a continuing one. Baker v. McDaniel, 178 Mo. 447, 472, 77 S. IV. 531; Caskey v. Edwards, 128 Mo. App. 227, 242, 107 S. W. 37; Hodson v. Walker, 170 Mo. App. 632, 637, 157 S. W. 104.

The theory underlying the motion to dismiss seems to be that the allegations of special injury to the plaintiffs are mere conclusions, and not the statement of facts in that regard. We do not think so. The petition alleges that plaintiffs are "owners of real estate * * * contiguous to and bordering upon, and in the immediate vicinity of, Platte river," and that—

* * * By reason of said dam the waters of Platte river have been backed up and raised and said river made deep and dangerous; that because of the damming back of said waters, as aforesaid, the waters of Platte river have been caused to leave the banks of said river and to overflow the lands of plaintiffs, or some of them, and will in times of heavy rainfall and freshets, and at certain seasons of the year, again overflow the lands of plaintiffs and each of them; that by reason of said dam aforesaid it has become dangerous and unsafe for plaintiffs and their tenants upon their said lands to reside upon...