Croley v. De Witt, 32789

• Decision Date: 14 June 1968
• Docket Number: No. 32789,32789
• Citation: Croley v. De Witt, 431 S.W.2d 657 (Mo. App. 1968)
• Parties: Boyd T. CROLEY, Lois Tippett and Nancy Daniels, Plaintiffs-Respondents, v. Ralph O. DE WITT and Anna May De Witt, his wife, and Roy Thomas Myers, Jr., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 657

431 S.W.2d 657

Boyd T. CROLEY, Lois Tippett and Nancy Daniels, Plaintiffs-Respondents, v. Ralph O. DE WITT and Anna May De Witt, his wife, and Roy Thomas Myers, Jr., Defendants-Appellants.

No. 32789.

St. Louis Court of Appeals, Missouri.

June 14, 1968.

Motion for Rehearing or to Transfer to Supreme Court Denied

Sept. 4, 1968.

John B. Smoot, Memphis, Cohn & Lentz, Arthur B. Cohn, Waynesville, for defendants-appellants.

J. Andy Zenge, Jr., Dennis W. Smith, Canton, for plaintiffs-respondents.

GEORGE W. CLOYD, Special Judge.

Defendants-Appellants hereinafter referred to as defendants appeal from an order whereby defendants are permanently enjoined from permitting a dam or levee or any other type of obstruction to remain in and across a natural drainway. Defendants, their agents or servants were given five days to comply with the order.

Defendants contend that, plaintiffs' petition failed to state a claim upon which relief could be granted, and secondly, that plaintiffs failed in their burden of proof, in failing to show that there was a natural watercourse and that defendants failed to prove or establish sufficient facts to come within an exception to the 'Common Enemy Doctrine'.

Plaintiffs owned agricultural land bounded on the north and east by the Fabius River. On plaintiffs' southern boundary were the defendants, and property owned by a third party not involved in this litigation, known as the Iowa-Missouri Company. The Iowa-Missouri property was due west of defendants' property and plaintiffs' property lay to the north of defendants' property. The property of the Iowa-Missouri Company historically contained a slough known as Woolf's Slough. Woolf's Slough contained nothing but surface water and had created a drainage problem for years. The plaintiffs' property was never in the past inundated by surface water. Prior to the plaintiffs' acquisition of the property, an 8 tile from Woolf's Slough went north underground across plaintiffs' property emptying into the Fabius River. This tile is now stopped up. Two ditches, Ditch A and Ditch B have been constructed: Ditch A, upon property of Iowa-Missouri Company and Ditch B, on defendants' property. It is undisputed that Ditches A and B were connected and drained surface water from west to east into the Fabius River. There is a dispute as to when the ditches were connected. The evidence varies from as late as 1958 to as early as 1932.

Defendants by their admission made a small levee across Ditch A--B at a point near the western boundary of defendants' property, which concededly blocked the flow of water through Ditch A--B to the Fabius River. This levee or dam was constructed in 1965 and as a result water has now accumulated to a depth of 3 to 4 feet on plaintiffs' property and also on the property of the Iowa-Missouri Company. The water has prevented plaintiffs from farming half of their property. The accumulation of water is now greater and covers a larger area than when the water was originally known as Woolf's Slough. The water however, is basically in the same area as was Woolf's Slough.

Plaintiffs' petition alleges (paragraphs 4 and 5) a 'natural drainway' existing across the plaintiffs' and defendants' property through which water drained eastwardly to the Fabius River; that defendants have constructed a dam which completely blocks the flow of water in the 'natural drainway' causing the water to back up and accumulate on plaintiffs' property; that said action of defendants by obstructing the 'natural drainway' is violative of plaintiffs' property rights and constitutes a continuing trespass all to plaintiffs' damage.

Defendants contended that the petition does not state a claim upon which relief could be granted because Ditch A--B was not a natural watercourse and since it was not and is not a natural watercourse it could be dammed because as surface water is a common enemy it may be cast upon the land of adjoining property owners (to their detriment).

Plaintiffs in their brief concede that they have not attempted to establish the existence of a natural watercourse in its natural state, and by definition of that term could not establish such fact. However, plaintiffs contend that it is not necessary for them to prove that the drainage was through a natural watercourse. Plaintiffs maintain that they are entitled to maintenance of the drainage from their land without interference from the defendants through a 'NATURAL DRAINWAY'.

In determining if a claim upon which relief can be granted has been pleaded the court must admit as true the facts in plaintiffs' petition and we must give plaintiffs all of the fair inferences to the facts pleaded. Dowdy v. Lincoln National Life Insurance Company et al., Mo.App., 384 S.W.2d 282.

Defendants in their brief state: 'Plaintiffs cannot bring suit on the theory of blocking a natural drainway, when the only possible legal principle is that of (blocking) a...