Dunham v. Joyce
| Decision Date | 28 May 1895 |
| Citation | 31 S.W. 337,129 Mo. 5 |
| Parties | Dunham v. Joyce, Appellant |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. P. C. Stepp, Judge.
Reversed and remanded.
D. J Heaston for appellant.
(1) An easement can only be acquired by deed or grant, and there was neither in this case. Fuhr v. Dean, 26 Mo. 116; Desloge v. Pearce, 38 Mo. 588; Allen v Mansfield, 82 Mo. 688; Bishop on Contracts [2 Ed.], sec 1298; Pitzman v. Boyce, 111 Mo. 387; Washburn, Easements [2 Ed.], 6 and 23; Cocker v. Cowper, 1 Crompt. M. & R. 418; Tiedeman on Real Property, sec. 600. (2) If defendant had any interest or right in the ditch it was merely permissive, or a license, and as such the licensor might revoke it at any time. Pitzman v. Boyce, 111 Mo. 387; Nelson v. Nelson, 41 Mo.App. 130; White v. Sheldon, 28 N.Y. 475; 5 Gen. Dig., p. 656, sec. 29; Min. Mill Co. v. Railway, 53 N.W. 639; Railroad v. Stock Yards, 120 Mo. 541; 6 Am. & Eng. Encyclopedia of Law, 141; Vossen v. Dautel, 116 Mo. 379; Snyder v. Warford, 11 Mo. 513; Tiedeman, Real Property, secs. 651-654; 1 Washburn, Real Property [5 Ed.], 665; Johnson v. Knapp, 23 N.E. 40; Taylor v. Millard, 23 N.E. 376; Railway v. Kennedy, 31 N.E. 943; Railway v. Michener, 20 N.E. 255. (3) The fourth instruction given for the plaintiff to the effect that defendant was liable for damages if he dams back surface water, was erroneous, because there was no such issue raised by the petition, and it can not be raised by instructions. Ely v. Railroad, 77 Mo. 36; Nall v. Railroad, 99 Mo. 75. Also because such is not the law. Imler v. Springfield, 55 Mo. 119; Jones v. Railroad, 84 Mo. 151; Moss v. Railroad, 85 Mo. 86; Collier v. Railroad, 48 Mo.App. 398; Morrissey v. Railroad, 56 N.W. 946; Champion v. Crandon, 54 N.W. 775; Washburn on Easements [2 Ed.], 270, et seq.; also p. 431, [1 Ed.], 355, citing Bangor v. Lansil, 51 Maine, 525; Bentz v. Armstrong, 8 Watts & S. 40. (4) Plaintiff's first instruction tells the jury to give him full damages for all injuries he has sustained, regardless of whether he took any means to avert, or relieve himself from, such damages; the sixth instruction presents to the jury a different method to ascertain his damages; and the fifth instruction directs the jury that they are not to consider any means by which plaintiff could avoid any part of such damages; all of which was erroneous. 3 Sutherland, Damages [1 Ed.], 382; Wisdom v. Newberry, 30 Mo.App. 241; Waters v. Brown, 44 Mo. 302, 436; Bridge Co. v. Schaubacher, 57 Mo. 587.
Sallee & Goodman for respondent.
Appellant's contention that an easement can only be acquired by deed or grant is not sustained by the cases of Fuhr v. Dean, 26 Mo. 116, and Desloge v. Pearce, 38 Mo. 588, which were both mining cases, determined on their facts and in no way militate against the position assumed by respondent. In fact they assert the doctrine that a license coupled with an interest is not revocable at the pleasure of the licensor. The right to use the ditch may have been acquired by contract, by use, and by necessity. Johnson v. Jordan, 37 Am. Dec. 85; Townsend v. McDonald, 64 Am. Dec. 608, and note; Cabrey v. Willis, 83 Am. Dec. 688; Sanderlin v. Baxter, 44 Am. Rep. 165; House v. Montgomery, 19 Mo.App. 170; Baker v. Railroad, 57 Mo. 265; Ricard v. Williams, 7 Wheat. 59. A mere license is not revocable where the licensee has expended money or labor on the faith of the license. House v. Montgomery, supra; Baker v. Railroad, supra; Fuhr v. Dean, supra; Desloge v. Pearce, supra; Nelson v. Nelson, 41 Mo.App. 165; Gikon v. St. Louis, 33 Mo.App. 135. Where a party has enjoyed an easement for such length of time as to confer title to land from the true owner to a disseizor, this adverse enjoyment will, in law, establish the right to the easement as against the owner of the servient estate. Pitzman v. Boyce, 111 Mo. 387. Appellant can not complain of instruction number 4 given for plaintiff, since he adopts the same theory in instruction 6 given at his request. Reilly v. Railroad, 94 Mo. 600; Thorpe v. Railroad, 89 Mo. 650; Holmes v. Braidwood, 82 Mo. 610; Davis v. Brown, 67 Mo. 313; Blondeau v. Sheridan, 81 Mo. 545; Cole v. Railroad, 47 Mo.App. 624. As appellant purchased with knowledge of respondent's rights, he took subject to them. Poage v. Railroad, 24 Mo.App. 199; 2 Pomeroy's Eq. Jur. 600, and notes. Plaintiff's instruction on the measure of damages was proper and is fully sustained by the authorities. 3 Sutherland on Dam., secs. 372-375, and notes. Where the damage is of a permanent character and affects the value of the real estate, a recovery may be had at law of the entire damages in one action. Smith v. Railroad, 23 W.Va. 453. Wherever the nuisance is of such character that its continuance is necessarily an injury and where it is of a permanent character that will continue without change from any cause but human labor, there the damage is an original damage and may be at once fully compensated, since the injured person has no means to compel the individual doing the wrong to apply the labor necessary to remove the cause of injury, and can only cause it to be done, if at all, by the expenditure of his own means. Troy v. Railroad, 23 N.H. 101. Where permanent structures are erected which result in injury to the realty adjacent, such as dams, dikes, roads, railways and bridges, a new principle is applied. In these cases all damages may be recovered in a single suit. 5 Am. & Eng. Encyclopedia of Law, 20.
Plaintiff began this action in the circuit court of Harrison county, claiming damages of defendant for obstructing and damming up the head of a drain ditch on defendant's own land, in which plaintiff claimed an easement. The petition charged, in substance, that, in the year 1878, one Thomas B. Allen and William Allen (the then owners of the land now owned by plaintiff and defendant), together with others owning land in the neighborhood, for the purpose of reclaiming and draining the wet and marshy parts of their lands, in consideration of the mutual benefits to be derived therefrom, made and entered into a contract between themselves for the digging, constructing and perpetual maintenance of a ditch or drain suitable for that purpose, and that, under said contract and agreement, the parties thereto, at great labor and cost, dug an open ditch in said section on and across the land now owned by defendant, in such a manner and of such capacity as to drain and furnish an outlet for all the surface water that might from time to time collect on the lands along the line of the ditch as well as the land of Thomas B. Allen, now owned by plaintiff, thereby making same suitable for farming purposes; that the ditch has since been kept, maintained and repaired by plaintiff and his grantor with the knowledge and consent of defendant and his grantors; that plaintiff, with knowledge of the original contract and all that had been done thereunder, and believing that the ditch would in the future remain and be maintained where it was first located in the year 1878, purchased and became the owner of forty acres immediately west of, and adjoining, the forty acres on which the ditch in controversy was dug, and now owns the same; that defendant purchased the forty acres east, on which the ditch obstructed is located, in the year 1883, with full information and knowledge of the location of the ditch thereon, the contract under which it was located and worked, and the objects and purposes of its construction, and that plaintiff's grantors claimed the right to use the ditch and go upon his land to repair and maintain same; that, after plaintiff had become the owner of the west forty acres, he had, with the knowledge, consent and encouragement of defendant expended large sums of money and labor in repairing said ditch for the purpose of properly draining the land belonging to both plaintiff and defendant; that by reason of the formation and declivity of said lands the surface water can not be discharged from said lands in any way other than across the land of defendant, through and by means of the ditch made thereon as aforesaid; and that defendant, on the first day of March, 1891, unlawfully and maliciously destroyed said drain and built a dam over and across said ditch at the head thereof, near to and adjoining the lands of plaintiff, and thereby has prevented the surface water that gathers on his forty acres from escaping, and causing same to gather in large quantities and ruin his crops, to his damage in the sum of $ 600.
The case was tried by a jury under instructions from the court resulting in a verdict for plaintiff, on which, in due time, a judgment was rendered.
Defendant, at the close of plaintiff's testimony, offered an instruction in the nature of a demurrer to the evidence, which was by the court refused, and after offering testimony in his own behalf, and at the close thereof, again renewed his demand for a peremptory instruction directing the jury to return a verdict for defendant, which was by the court denied, and to which action of the court in refusing said instruction defendant again duly excepted. The court then gave numerous instructions for both plaintiff and defendant.
The correctness or incorrectness of the legal propositions therein contained we will not in detail discuss, as we deem it unnecessary to the disposition of this case. It is not the province of the court to give instructions based on the allegations of the petition when no legal proof has been offered to sustain them, or where there is a complete lack of proof of one of the controlling substantial averments thereof. Under these conditions, the jury have no judgment...
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