Dardenne Realty Co. v. Abeken
| Decision Date | 29 June 1937 |
| Parties | DARDENNE REALTY COMPANY, A CORPORATION, RESPONDENT, v. FLORENCE ABEKEN, LUCILLE R. OTTO, EDWARD RUNGE AND URBAN GRIESENAUER, DEFENDANTS, EDWARD RUNGE AND URBAN GRIESENAUER, APPELLANTS |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of St. Charles County.--Hon. Edgar B Woolfolk, Judge.
AFFIRMED.
Judgment affirmed.
Bryan Williams, Cave & McPheeters for respondent.
(1) The appellate courts, while not controlled by, yet will defer to the trial court's findings on the facts in equity cases where the testimony is chiefly oral, unless that court's finding is clearly against the weight of the evidence. Norton v. Norton, 43 S.W.2d 1024 (Sup. Ct.); Fessler v. Fessler, 60 S.W.2d 17, 23; Voelpel v Wuensche, 74 S.W.2d 14, 19; Cooper v. County State Bank, 67 S.W.2d 109; Wegmann Realty Co. v. City of St. Louis, 64 S.W. 2770. (2) Belleau Creek is a natural watercourse under and within the definitions laid down by the appellate courts of this State. Sigler v. Interriver Drainage District, 311 Mo., l. c. 200; Munkres v. Railroad, 72 Mo. 514; Scott v. Railroad, 158 Mo.App. 625; McGhay v. Woolston, 175 Mo.App. 327. (3) (a) A lower riparian owner is entitled to the natural and normal flow of a natural water stream without diminution or alteration. Greisinger v. Klinhardt, 9 S.W.2d 978; Webb v. Carter, 121 Mo.App. 147, l. c. 155; 67 Corpus Juris, 686. (b) And the rule obtains even though one or both of the banks of the watercourse were strengthened or raised by the upper riparian owner. Ranny v. Railroad, 137 Mo.App. 537; McGhay v. Woolston, 175 Mo.App. 327, l. c. 330. (4) Injunction is the proper remedy to prevent an unlawful interference with the normal and natural flow of water in a natural watercourse. Wood v. Craig, 133 Mo.App. 548, l. c. 552.
B. H. Dyer for appellants.
(1) Munkres v. K. C. etc. Railroad Co., 72 Mo. 514; Earl v. De Hart, 12 N.J.Eq. 280. (2) Vandalia R. Co. v. Yeager, 110 N.E. 230, 60 Ind.App. 118; Earl v. De Hart, 12 N.J.Eq. 280; Howley v. Sheldon, 64 Vt. 491; Gibbs v. Williams, 25 Kans. 214. (3) Porter v. Armstrong, 129 N.C. 101. (4) Smith v. Musgrove, 32 Mo.App. 241, 254; Woodbury v. Short, 17 Vt. 388; Ford v. Whitlock, 27 Vt. 267. (5) Earl v. De Hart, 12 N.J.Eq. 280; Holley v. Shelton, 64 Vt. 491.
This is a suit in equity brought by plaintiff to perpetually enjoin the diversion of, or interference with, the usual flow of water in a natural watercourse, and further for a mandatory injunction to require defendants to remove a certain dam from said watercourse and to close certain diversion ditches leading away from the natural channel of said watercourse.
The evidence shows that plaintiff is the owner of 1460 acres of land in St. Charles County, and that there are located on this land two lakes, Big Rondeau and little Rondeau, having areas of approximately 800 acres and 200 acres respectively. These lakes had never been dry during the period of approximately forty years, covered by the testimony, with the exception of the year in which this suit was tried, and one other, and in normal times had an average depth of four to five feet of water. They were dependent for their water supply on the flow from Belleau Creek, although when heavy rains occurred some surface water drained into them from off the surrounding prairie. There was and is located on plaintiff's land improvements which include a large clubhouse, boathouse, pumps, pumphouses and other equipment.
The defendants Runge, Abeken and Otto own a track of 360 acres, known as the Runge land, located about a mile and a quarter from plaintiff's land in a southwestwardly direction, and immediately to the north of the Runge land lies a tract of 160 acres owned by August A. Busch's heirs. This tract immediately adjoints plaintiff's land.
Belleau Creek, from time immemorial, has risen in the hills several miles back from any of the lands in question. This creek at its point of origin is fed by numerous springs, some of which are continuous and some "wet weather" springs. It runs as a natural watercourse down from the hills into the bottom land. It runs under what is called the Salt River road and through the Runge land. It runs almost due northward through the Runge land near its west line. It is a well-defined watercourse with a bed which is twenty or twenty-five feet wide and four to five feet deep, and its banks are lined with maples and willows, some of them as much as several inches in diameter. It runs from the Runge land onto the Busch land, in a northwardly direction, through the Busch land, onto plaintiff's land, and empties into plaintiff's lakes.
At some time, within a few years prior to the commencement of this suit, a dam was built by defendant Griesenauer, a tenant on the Runge land, in the bed of Belleau Creek. This dam was some four or five feet high. It was made out of boards, ten-inch planking, and dirt and driftwood, and is about twenty-five feet wide and runs across the entire bed of the stream. It is located about one hundred feet south of the line between the Runge and the Busch lands.
In addition to the dam in Belleau Creek, defendants Griesenauer and Runge constructed a lateral ditch, located just above the dam, and which runs in a northeastwardly direction through the Runge land for some two hundred or three hundred yards. At one time the water from this ditch had been allowed to flow onto the Busch land and then to find its natural way out onto the open prairie, and some of the water thus diverted eventually found its way across the Busch land, and then onto plaintiff's land and into its lakes. But there was afterwards built a dam across this ditch, on the Runge land, altering the course of the flow in the ditch and turning it back again onto the Runge land. At or about the time this dam was built the ditch was extended in a southeastwardly direction on the Runge land into a lake, with a further ditch leading out of this lake into another lake. These two lakes were artificially built by defendant Griesenauer in the summer of 1933.
Although the year 1934, in which this suit was tried, was an unusually dry year, there was a flow of water in Belleau Creek at all times, and the artificial ditches leading from Belleau Creek onto defendants' land contained water which was conducted by these ditches to defendants' lakes, and impounded there. After the dam across Belleau Creek was constructed, no water flowed north in the Belleau Creek bed, but all the water which came down through Belleau Creek and which would otherwise have run from the Runge land down through Belleau Creek and on and across the Busch land and thence to plaintiff's land was diverted so that it ran into these ditches and filled the artificial lakes on defendants' land.
There was some conflict in the testimony respecting the character of Belleau Creek, but the great weight of the testimony shows that the creek, from the place where it rose in the hills down to and on through the Runge land, the Busch land, and plaintiff's land to the lakes, was a natural watercourse, having a definite bed and banks, and in normal times a regular flow of water throughout the year.
One Prinster, the caretaker for the Busch land, some time before the commencement of this suit, put some piling in Belleau Creek below the point where the creek ran from the Runge land onto the Busch land. The purpose of this piling was to stop the driftwood, which floated down through Belleau Creek. This piling was removed by Prinster some three weeks prior to the trial of this suit, so that there was no obstruction on the Busch land at the time of the trial.
Defendants Abeken and Otto made no defense, but consented to the granting of the relief sought.
The court found that Belleau Creek was a natural watercourse and found that defendants had obstructed the flow of the stream, and were diverting the water into the artificial lakes constructed on the Runge land, and enjoined defendants from in anywise interfering with or diverting the flow of the water in the creek, and issued a mandatory injunction commanding the defendants to remove from the creek the dam constructed in the creek on the Runge land, and to remove from the bed of the creek, between the artificial ditch and the dam, the dirt and debris deposited in the creek as a result of the dam. The court further enjoined the defendants from interfering with or diminishing the natural flow of the creek and diverting any water therefrom except for domestic uses. From this judgment defendants Runge and Griesenauer have appealed.
Appellants contend on this appeal that Belleau Creek was not shown to be a natural watercourse, and that, therefore, plaintiff is not...
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