Campbell v. Anderson

• Decision Date: 19 October 1993
• Docket Number: No. WD,WD
• Citation: Campbell v. Anderson, 866 S.W.2d 139 (Mo. App. 1993)
• Parties: William CAMPBELL, Jr. and June Mary Campbell, his wife, R.E. Holzer and Margaret Holzer, his wife, and Norma Amer, Appellants, v. Richard ANDERSON and Shirley Anderson, his wife, Michael Anderson and Bonnie Anderson, his wife, David Anderson, John C. Collet, John Brandon and Yvonne Brandon, his wife, Community Bank of Chillicothe, and Matt Parrish, Respondents. 46616.
• Court: Missouri Court of Appeals

Page 139

866 S.W.2d 139

William CAMPBELL, Jr. and June Mary Campbell, his wife, R.E Holzer and Margaret Holzer, his wife, and Norma Amer, Appellants, v. Richard ANDERSON and Shirley Anderson, his wife, Michael Anderson and Bonnie Anderson, his wife, David Anderson, John C. Collet, John Brandon and Yvonne Brandon, his wife Community Bank of Chillicothe, and Matt Parrish, Respondents.

No. WD 46616.

Missouri Court of Appeals Western District.

Oct. 19, 1993.

As Modified Nov. 24, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 30, 1993.

Richard N. Brown, Brown & Casey, Brookfield, for appellants.

N. William Phillips, Phillips & Spencer, P.C., Milan, for respondents Richard and Shirley Anderson, Michael and Bonnie Anderson and David Anderson; Jack Peace, Andereck, Evans, Milne, Peace & Baumhoer, Trenton, for respondents John and Yvonne Brandon; and Allan Brent Turner, Chapman, Cowherd & Turner, P.C., Chillicothe, for respondents John C. Collet, Community Bank of Chillicothe and Matt Parrish.

Before BERREY, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

This appeal arises from the trial court's judgment against appellants in their action challenging the re-channelization of Parsons Creek by the owners of an adjoining tract of land. Appellants raise three points on appeal arguing that the trial court erred in: 1) failing to find and determine an unabated abatable nuisance and order injunctive relief; 2) failing to find and determine damages against each of the successive landowners of the tract upon which the abatement actions are necessary; and 3) determining that punitive damages would not be applicable under the nuisance claim of the appellants' petition.

The judgment is reversed and the case is remanded for a new trial.

This case includes a number of appellants and respondents as a result of the many land transfers that have taken place over the significant period of time this action encompasses. The appellants in the instant case include William and June Campbell, R.E. and Margaret Holzer, and Norma Amer. The respondents include Richard and Shirley Anderson, Michael and Bonnie Anderson, David Anderson, John Collet, John and Yvonne Brandon, the Community Bank of Chillicothe and Matt Parrish.

In 1952, the Campbells purchased a farm in Linn County, Missouri of approximately 225 acres. The farm consisted of significant pasture land and about twenty-six acres of heavy timber. Mr. Campbell testified that he purchased the farm, which was quite run down, seriously eroded and overgrown with brush, because it was his intention to repair the damage.

Immediately upon purchasing the farm, the Campbells embarked upon a program to repair the run-down condition of their land, correct erosion, and re-seed the pasture land. Mr. Campbell testified that from 1952 to 1979, the flooding of his land was quite minor because even a heavy rain would run off quickly. Sometime prior to 1977, a small levee was built by the Brandons along the west side of Parsons Creek to prevent the flooding of their land. This levee caused flooding of the Campbells' pasture land which adjoined the Brandons' land and thus, the Campbells built a three foot levee along their west boundary to counter the flooding.

From 1962 to 1985, the Holzers owned a five-acre tract of land which abutted the southwest corner of the Campbell farm. In 1985, the Holzers sold their land to Norma Amer and her husband, Glenn, who is deceased.

In 1977, Richard Anderson, Michael Anderson and David Anderson, all brothers, purchased a tract of land to the west of the Campbells' farm from the Brandons, and later purchased two other forty-acre tracts of land nearby, for the purpose of operating a farm together. In the spring of 1979, the Anderson brothers embarked upon a project to re-channel Parsons Creek, so that the farm could be used for row crop farming. Parsons Creek originally entered the Anderson property at the north and meandered through it exiting at the southern edge of the property. The result of re-channelization was to straighten Parsons Creek so that it would flow parallel to the borders of the Anderson property. There was testimony at trial indicating that, prior to the completion of the project, both the Anderson and the Campbell farms flooded on a regular basis.

During the re-channelization project, Campbell registered a complaint with the United States Corps of Engineers (Corps). Dave Meyer, a field investigator for the Corps, visited the property to examine the work that was being done on Parsons Creek. Meyer told the Andersons that, without a permit, the creek could be re-channeled but that they could not block either end or fill the original channel of the creek.

The Andersons applied to the Corps on September 9, 1979 for a permit to put a channel block at each end of Parsons Creek. The Corps required the Anderson brothers to obtain Missouri water quality certification before it would issue a permit for the channel block. The Anderson brothers' application for water quality certification was denied by the Missouri Department of Natural Resources. The decision was appealed to the Missouri Clean Water Commission and affirmed. The Anderson brothers sought review of the Commission's decision in the circuit court and the decision was reversed. The Commission then appealed the circuit court's judgment to this court which ruled that the Commission had not made sufficient findings of fact and remanded the cause to the circuit court with directions to remand to the Commission for findings of fact and conclusions of law. The matter was re-argued to the Missouri Clean Water Commission and the Commission again affirmed the denial of certification by the Missouri Department of Natural Resources. Such decision was not appealed. Subsequently in February of 1987, the Corps refused to issue a permit to the Andersons for the channel block due to the denial of their application for Missouri water quality certification.

Meyer testified at trial that the original channel had not been blocked in contravention of the law and, thus, there was nothing illegal about the re-channelization. Meyer also stated that the re-channelization project was accomplished within the boundaries of the Anderson property and the new channel entered and exited the property at the same points that the old channel had entered and exited.

In July of 1984, the Anderson brothers formed a general partnership with John Collet to which Collet contributed financially but did not participate in the actual farming activities. In February of 1986, the Anderson brothers deeded to Collet the eighty acre tract of their farm within which lies the old and the new Parsons Creek channels. ¹ The tract of the Anderson farm purchased from the Brandons was deeded back to them in July of 1986 in return for a release of the promissory note and the deed of trust that the Andersons had previously signed. The Anderson brothers continued to rent the Brandon property and farm it until 1988.

The appellants filed this action in the Linn County Circuit Court on December 2, 1986. Appellants Holzer and Amer seek trespass damages in Count I for the use and abuse by the Andersons of the five-acre tract owned first by the Holzers and then by the Amers. ² In Count II, appellants seek actual and punitive damages for nuisance as a result of the efforts of the Andersons to re-channel Parsons Creek. Appellants pray for a restraining order and both temporary and permanent injunctive relief in Count III. Trial by the court without a jury took place on April 15-16, 1992. The trial court issued its judgment on April 18, 1992 finding all issues in favor of the respondents. This appeal was timely filed thereafter.

In defense of the appellants' claims, respondents pled the affirmative defense of statute of limitations alleging that the action was barred because it was filed more than five years after the new channel was constructed. This court will first address whether the affirmative defense of statute of limitations bars recovery by appellants. In doing so, however, this court is not required to decide whether the appellants' claims in the instant case constitute a nuisance. This court must affirm the judgment in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the evidence or the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 36 (Mo. banc 1976).

Section 516.120, RSMo 1986, ³ establishes a five-year statute of limitations for a cause of action for permanent nuisance. The statute of limitation for a temporary, abatable nuisance is ten years. Section 516.010. The time at which a nuisance cause of action accrues depends upon whether the nuisance is permanent or temporary and abatable. Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 792 (Mo.App.1980), overruled on other grounds by Frank v. Envrionmental Sanitation Management, 687 S.W.2d 876, 880 n. 3 (Mo. banc 1985). The Rebel court characterized the two types of nuisance as follows:

Where the source of the injury is a permanent structure, the injury accrues at completion of installation or when the effect of injury becomes manifest, and the action for recovery must be brought within the period of limitations thereafter. The effect of an adjudication of permanent nuisance is to declare to the tort-feasor an unabated right to continue the trespass. Thus, a permanent nuisance no less than an exercise of eminent domain destroys the estate or beneficial use in the land and entitles the owner to the same measure of compensation: the depreciation in the market value of the land damaged.

The period of limitations as to a temporary nuisance, however, runs anew from the accrual of the injury from every successive invasion of interest. The recovery is for damage actually sustained to the commencement of suit, but not for prospective injury. That is because...