Dudley Special Road Dist. of Stoddard County v. Harrison

• Decision Date: 06 December 1974
• Docket Number: No. 9886,9886
• Parties: DUDLEY SPECIAL ROAD DISTRICT OF STODDARD COUNTY et al., Plaintiffs-Respondents, v. Glin HARRISON, Sr., and Bessie Harrison, his wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 170

517 S.W.2d 170

DUDLEY SPECIAL ROAD DISTRICT OF STODDARD COUNTY et al., Plaintiffs-Respondents, v. Glin HARRISON, Sr., and Bessie Harrison, his wife,

Defendants-Appellants.

No. 9886.

Missouri Court of Appeals, Springfield District.

Dec. 6, 1974.

Motion for Rehearing or to Transfer to the Supreme Court

Denied Dec. 26, 1974.

Powell, Ringer & Baker, Dexter, for defendants-appellants.

C. H. Parsons, Jr., Claude Arnold, Dexter, for plaintiffs-respondents.

FLANIGAN, Judge.

In Count I of their petition respondents, plaintiffs below, sought an injunction requiring the defendants to remove an obstruction, in the form of a levee, placed across a natural watercourse known as Lick Creek and prohibiting defendants from again obstructing Lick Creek. The defendants filed a counterclaim, Count I of which requested injunctive relief. Both the petition and the counterclaim contained additional counts, but those counts, which requested damages, remain pending in the trial court for separate trial and they are not involved here.

Only the issues generated by Count I of the petition and Count I of the counterclaim were tried. The trial court found against the defendants on Count I of their counterclaim but defendants make no complaint with respect to that ruling. This appeal by defendants involves the propriety of the action of the trial court in granting plaintiffs, on Count I of their petition, the injunctive relief hereinafter described. This court modifies the decree and affirms it as modified.

It is the function of this court, in this equity case, to determine the cause de novo, to weigh the competent evidence introduced upon the factual issues, to reach its own conclusions based on the evidence, and to defer to the findings of the trial court where conflicting testimony requires a determination of the credibility of witnesses. Martin v. Norton, 497 S.W.2d 164, 167(1) (Mo.1973); Rutherford v. Rutherford, 444 S.W.2d 439 (Mo.1969). 'The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Rule 73.01(d), V.A.M.R.

In 1965, defendants, appellants here, constructed a levee on their land. The levee, which is approximately 1.3 miles long, runs east and west near the northern boundary of defendants' land. Most of the plaintiffs are owners of land lying north of the levee.

Running generally south, through the lands of the plaintiffs, is Lick Creek, a natural watercourse. Prior to the construction of the levee, Lick Creek flowed through the land of the defendants. It was the theory of the plaintiffs that the levee 'blocked the natural flow of water' in Lick Creek and caused 'said' water to collect north of the levee and to go upon and across the lands of the plaintiffs, causing them damage.

Plaintiff Dudley Special Road District of Stoddard County, Missouri, owns and maintains a road which runs north and south along the eastern boundaries of the lands of the plaintiffs. The levee caused water to back up upon that road and to interfere with its use.

Though it is an oversimplification, the factual situation may be better understood by visualizing the letter H. Plaintiffs' lands lie in the area within the H and above its cross-member. Defendants' lands lie within the H and below its cross-member. The cross-member itself is referred to in the evidence as 'Old Highway 60,' which runs east and west. The levee parallels Old Highway 60 and is a short distance south of it. Between the levee and Old Highway 60 is a ditch, or borrow pit, dug by the defendants on their land at the time the levee was constructed. Dirt from this ditch, which will be referred to as the levee ditch, was used in the construction of the levee.

The left side of the H, as the reader views it, is Drainage Ditch No. 12, hereinafter called 'the main ditch.' The right side of the H is another drainage ditch designated Lick Creek Lateral, hereinafter called 'the lateral ditch.'

A portion of the levee crosses the channel of Lick Creek and thus prevents water from flowing through that channel onto the defendants' land. A witness for defendants testified the length of Lick Creek, on defendants' land, was 7,200 feet.

At each end of the levee ditch the defendants inserted a metal pipe or 'horn.' Each of the two pipes was 48 inches in diameter and their combined cross-sectional or discharge area was 25.13 square feet. At the place where Lick Creek left the lands of the plaintiffs and entered the lands of the defendants, the channel of Lick Creek had a discharge area of 461 square feet. The purpose of the gate attached to the horn at the end of the levee ditch connecting with the main ditch was to prevent water entering the levee ditch from the main ditch when water in the main ditch was higher than the water level in the levee ditch. The gate of the horn at the other end had the same purpose with respect to the water in the lateral ditch. When the water level in the main ditch or the lateral ditch was lower than the water level in the levee ditch, the gates would open, or partially open, and permit water to flow from the levee ditch into the main ditch and the lateral ditch.

Lick Creek existed before the main ditch and the lateral ditch were dug. Lick Creek originally crossed Old Highway 60 at the north line of the defendants' land near the center of defendants' land, and then meandered southeastwardly to a point near the southeast corner of defendants' land, where it intersected the lateral ditch. The lateral ditch continues south from that point until it joins the main ditch 1 1/4 miles south of defendants' land and the main ditch then continues southwesterly until it flows into the St. Francis River. There are five large openings or bridges in Old Highway 60 between the main ditch and the lateral ditch. The largest opening, 212 feet long, is located where Lick Creek crosses from the plaintiffs' land to the defendants' land. The ground level slopes from the two drainage ditches (the main ditch and lateral ditch) toward Lick Creek, the banks of Lick Creek being about three feet below the banks of the drainage ditches.

Each side presented testimony from many witnesses, lay and expert. The testimony was in sharp conflict. A reading of the transcript leaves no doubt that the construction of the levee created extreme bitterness among the litigants. Defendants offered testimony concerning the making of threats against the levee and against the defendants themselves.

The theme of the evidence of defendants was that the construction of the levee had the effect of changing the course of the flow of Lick Creek but did not reduce the drainage benefits which plaintiffs had derived from its former channel across defendants' land.

Sitting in this atmosphere charged with animosity, the trial court was in the best position to weigh the credibility of the witnesses.

The trial court made findings of fact which included, in addition to most of the evidence set forth above, the following:

(a) Lick Creek for more than a mile upstream from the defendants' levee, and thus on the land of the plaintiffs, 'was and is a three-pronged natural watercourse with a definite channel averaging some 75 feet in width with an average depth of 6 feet and an average width, at the bottom of the channel, of 12 feet.'

(b) This natural watercourse carries water a substantial portion of the year, flowing generally south through the lands of the plaintiffs, passing under Old Highway 60 through the 212 foot bridge opening. 'With the levee standing squarely in the path of Lick Creek and extending 1 1/3 miles from (the main ditch) to (the lateral ditch), such water, both surface water and the flow of the natural watercourse, Lick Creek, as is unable to flow through the two 48-inch metal pipes backs up with the channel of Lick Creek and under the other four openings under Old Highway 60 and onto lands of some of the plaintiffs. The square foot discharge area of Lick Creek alone at the south side of Lick Creek Bridge where it leaves plaintiffs' lands and enters defendants' lands is 461 square feet. This is more than 18 times the discharge area of the two 48-inch metal pipes provided by defendants in lieu of the natural flow of Lick Creek. (461 divided by 25.13 = 18.3446).'

(c) In April 1970, following heavy rains, the levee broke in the area of Lick Creek Bridge and in four other places roughly corresponding to the other four bridges on Old Highway 60. When the levee broke, 'the backed up water on plaintiffs' lands fell very rapidly.' Defendants subsequently repaired the levee.

(d) In so constructing and maintaining the levee, the defendants 'have recklessly and unnecessarily collected both surface water and the flow of Lick Creek and forced it back on the land of some of the plaintiffs using not the lands of the defendants for the reservoir but the lands of some of the plaintiffs, and further have unnecessarily impeded and slowed down the flow of water in the natural watercourse Lick Creek by trying to run a maximum of 461 foot discharge of water through two openings totaling 25.13 square feet which open only when the water level in both (the main ditch) and (the lateral ditch) is lower than that of the (levee ditch), thus causing both surface water and the flow of (Lick Creek) to back up and stand at a higher level and for a longer period of time over the lands of the plaintiffs than it did prior to the construction of the levee.'

(e) The carrying capacity of the levee ditch is 'far less than that which existed before defendants blocked and dammed up' Lick Creek.

As has been indicated, the testimony was conflicting. Numerous photographs were admitted into evidence reflecting conditions which existed before and after the construction of the levee. Engineering drawings were introduced and described.

In their brief defendants express their principal contention in the...