Daudt v. Steiert

• Decision Date: 16 July 1918
• Docket Number: No. 19258.,19258.
• Citation: 205 S.W. 222
• Parties: DAUDT v. STEIERT et al.
• Court: Missouri Supreme Court

205 S.W. 222

DAUDT v. STEIERT et al.

No. 19258.

Supreme Court of Missouri, Division No. 2.

July 16, 1918.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Suit by Carl Daudt against Henry Steiert and others. From judgment for plaintiff, defendants appeal. Reversed and remanded.

C. W. Wilson, of St. Charles, for appellants. Charles J. Daudt, of St. Charles, for respondent.

WALKER, P. J.

This is a suit in equity to require appellants to remove obstructions from and keep open a ditch draining the lands of the parties hereto. On a hearing a judgment was rendered as prayed for, from which this appeal has been perfected.

Respondent is the owner of a tract of land in St. Charles county, and has owned same for a long term of years. In 1890 or 1892, one Albert Runge became the owner of an adjacent tract of land. This ownership continued until his death, in 1902, when the title passed by operation of law to his widow and their three children, Edward R., Florence L., and Lucille E. Runge, who are part of the appellants herein. The widow elected to take a child's part, which gave her an undivided one-fourth interest in the land. She died intestate in June, 1913, and the land descended to her children named. When this suit was commenced, these Runge heirs, who are minors, were and are now the owners in fee of this land. Henry 0. Stickle, one of the respondents, is their guardian. Henry Steiert is their tenant, and is in possession of the land. The adjacent tracts, owned by the respondent and the Runge heirs, are subject to overflow from a creek which flows out of higher land from the south and crosses the southern portion of both tracts. Flowing thence to the western boundary of the Runge lands, it follows this boundary in a northerly direction, where it loses itself in a marshy tract beyond the property of the parties. The ditch on the respondent's land is located along his northern boundary, and is entirely upon his land. The ditch on the Runge land is located on and along the eastern line of their tract, which lies north of and adjacent to respondent's tract. Respondent's claim in his pleading is that under a verbal agreement between him and Albert Runge, in 1897, he (respondent) constructed the ditch on his own land, at his own expense, and that Runge constructed the ditch on his land at his own expense, and that the ditches were connected, with the understanding that a continuous ditch would be maintained for draining the surface water from their respective lands; that he has enjoyed the continuous adverse user of the Runge ditch for more than ten years before the commencement of this suit; that in July, 1913, the tenant of the Runge lands, by direction of the guardian, Stickle, closed the ditch at or near where the ditch on respondent's land emptied into that on the Runge land. Respondent claims that he had acquired an easement of drainage in the ditch on the Runge land, and prayed the court for a decree establishing his right thereto and compelling the appellants to open and restore the ditch, and to enjoin them from thereafter interfering with or obstructing the same.

The appellants' answer consisted in a special denial of each of the allegations of the petition; an admission of the physical existence of the ditch; an affirmative statement that whatever understanding or arrangement, if any, had been made by Albert Runge in his lifetime, concerning said ditches and the drainage of surface water, was purely verbal, and no agreement in writing in relation thereto was executed or signed by him or any one for him, or by the plaintiff; and that the contract alleged to have been entered into in regard to the ditches by the respondent is within the provisions of the statute of frauds, which appellants plead as a defense to the respondent's action. To this answer, respondent interposed a special reply.

On the trial, it was shown that, in the year 1895 or 1896, one Henry Nehls, then a tenant on the respondent's land, dug a ditch along the north line of same, and at the same time Henry Steiert, then a tenant of Albert Runge, dug a ditch along the eastern side of the tract occupied by him, and, when the respective ditches were completed, the two tenants connected the same. A year or two later, Albert Runge built a levee along the south line of his land on the north side of the respondent's ditch, and for a short time thereafter the surface water from the respondent's land drained through this ditch. In a year or two after the building of this levee, an overflow from the creek flooded the lands of both parties and made a number of breaches in their lands, so that the water from respondent's land flowed onto the appellant's land. This condition continued until 1909, when the appellants erected a large levee along the south line of their land, and in so doing closed the connection between the ditches of the respondent's and appellants' lands, which had theretofore been connected. Some time thereafter a tenant of respondent cut an opening in the levee. There were negotiations between the parties about putting a tile in the levee and otherwise restoring the same. Respondent and his tenant laid a tile in the break made in the levee, but did not cover the same or close the break. In the spring of 1913, Albert Runge's widow ordered her tenant, Henry Steiert, to fill the break in the levee and close the ditch. He did not do this, however, until the latter part of September, 1913, which was several months after her death. A short time after the ditch had been closed by the restoration of the levee, this suit was instituted.

Outlining the contentions of the respective parties hereto from their pleadings, it will be seen that respondent based his claim to an easement of drainage upon the land of appellants under an alleged verbal agreement with appellants' ancestor, Albert Runge, and respondent's expenditures in building the ditch on his own land, and his alleged user of the ditch on the lands of appellants. Appellants' contentions are that the respondent never contributed anything either in cash or labor towards the construction and maintenance of the ditch on the appellants' land; that the ditch on respondent's own land was never in any wise controlled or used by the appellants or their tenants; and that the ditch on their own lands was in their absolute control, or that of their tenants at all times, and had been from the time of its construction to the date of the institution of this suit; that appellants never had any outlet or place to discharge the surface water from the respondent's lands upon their lands, and, if they are compelled in this proceeding to permit the flow of surface water upon their lands, it will spread over same and be taken up only by evaporation.

The only affirmative testimony in regard to the alleged verbal agreement between the respondent and the appellants' ancestor, Albert Runge, is that of Henry Nehls and August Obrecht, witnesses for respondent. The testimony of the witness Nehls is that in 1895 or 1896, while he was a tenant of the respondent, Albert Runge directed him in reference to the making of the ditch; that at the time Henry Steiert was the tenant of the appellants; that Runge told him that if they would start the ditch he would agree to it; that he went to his landlord (respondent) and told him about it, and the latter said, "Yes," and when they came back the second time Runge asked him if he had seen respondent, to which he said, "Yes," and, when he told Runge what the respondent had said, Runge replied, "make the ditch and keep it clean," and it was kept clean as long as the witness stayed on the land, which was about nine or ten years; that each party kept the ditch clean on their respective lands; that Runge said he did not want any levee, that he wanted a ditch, and that he said to the witness, "We ought to have that ditch, and you ask Mr. Daudt (respondent) to make the ditch on his land and keep it clean," and that he (Runge) would keep his ditch clean. "The third time I talked to him, he said, as Mr. Daudt was willing that the ditch should be constructed, and as it was then dry weather, they ought to get at it. He just said the way he wanted it done, and we started it that way, and after we had been at work on it a day or two he came out and looked at it, and he was well pleased with both ditches."

August Obrecht testified that Albert Runge spoke to him about the ditch once, saying:

"`Well, that ditch I made for me and Daudt.' These were the very words he used; that he had made that ditch for him and Daudt. At the time he made this remark, they were working on the ditch."

Witness stated further that, some time after the ditch was completed, Albert Runge told him it had been dug to carry his water and Daudt's off of their lands. This was not long after the ditch was completed.

I. Counsel for appellants earnestly contend that it was error to permit respondent, who is a lawyer, and conducted his own case, to testify in narrative form instead of by question and answer. Putting aside, as smacking of levity, that old adage which unkindly classifies lawyers who are their own clients, let us consider the contention with befitting seriousness. It is not urged that by accent, emphasis, appealing tone, or convincing lineament, the witness' testimony was...