Eilers v. Kodner Development Corp.

• Decision Date: 27 August 1974
• Docket Number: No. 35490,35490
• Citation: 513 S.W.2d 663
• Parties: Omar and Amella EILERS, Plaintiffs-Respondents, v. KODNER DEVELOPMENT CORPORATION, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 663

513 S.W.2d 663

Omar and Amella EILERS, Plaintiffs-Respondents, v. KODNER DEVELOPMENT CORPORATION, Defendant-Appellant.

No. 35490.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 27, 1974.

Rosecan & Popkin, Alan E. Popkin, St. Louis, for defendant-appellant.

Niedner, Moerschel, Nack & Ahlheim, Reginald P. Bodeux, St. Charles, for plaintiff-respondent.

GUNN, Judge.

Defendant-appellant appeals from a default judgment of $12,000 in favor of plaintiffs-respondents. The theme of the case is surface water rights, and defendant asserts: 1) the judgment is in error as plaintiffs' petition failed to state a cause of action; 2) the court abused its discretion in failing to set aside the default judgment on defendant's motion; 3) the trial court erred by failing to hear defendant on the issues of damages. We affirm the judgment.

On February 7, 1973, plaintiffs filed suit against defendant for damages and injunctive relief arising out of defendant's grading of its land and construction of catch basins and a sewer system thereon with alleged resultant surface water runoff damage to plaintiffs' adjoining land. Service of process on defendant was obtained on February 27, 1973, and on March 9, 1973 counsel for defendant entered appearance and requested 30 days additional time in which to file responsive pleadings. Defendant was granted leave to plead on or before April 6, 1973, but no pleadings were filed. On May 11, 1973, hearing on plaintiffs' petition was held by the trial court, and plaintiffs presented their evidence, including evidence by a real estate appraiser of damages to their property. At the time of the hearing, acts complained of had been accomplished. After hearing the evidence, the trial court, on the date of hearing, found defendant in default and entered judgment for plaintiffs for $12,000 and enjoined defendants from accumulating, gathering and collecting surface water and discharging it in concentrated and destructive quantities on plaintiffs' property. No notice of the May 11, hearing was given to defendant, and on June 7, 1973, defendant filed a motion to vacate the default judgment, which was denied.

We turn to the first issue raised concerning whether plaintiffs' petition states a cause of action upon which a default judgment may rest. Inasmuch as failure to state a cause of action is jurisdictional in nature, the issue may properly be raised at any time during the proceedings, even for the first time on appeal. Harding v. State Farm Mutual Automobile Insurance Co., 448 S.W.2d 5 (Mo. banc 1969); Falcon Enterprises, Inc. v. Precise Forms, Inc., 509 S.W.2d 170 (Mo.App.1974). However, in determining whether a petition is sufficient it is only necessary to find that the petition states a claim upon which relief can be granted. Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974); Falcon Enterprises, Inc. v. Precise Forms, Inc., supra. As aptly stated in Sumpter v. J. E. Sieben Construction Co., 492 S.W.2d 150, l.c. 153 (Mo.App.1973):

'A petition will be found sufficient after judgment if, after allowing those reasonable inferences and matters necessarily implied from the facts stated, there is sufficient to advise the defendant with reasonable certainty as to the cause of action it is called upon to meet and bar another action for the same subject-matter.'

We review plaintiffs' petition with the foregoing before us. The petition contained three counts with the first count seeking injunctive relief and count two seeking money damages as a result of defendant's alleged illegal discharge of surface water on plaintiffs' property. Count three sought punitive damages, which were not allowed, and is therefore not here considered. The pertinent portions of counts one and two read:

'5. That the plans and drawing which defendant has submitted indicate that defendant eventually intends to construct catch basins and a storm sewer system which will accumulate extensive amounts of surface water from extensive areas on defendant's property and empty directly upon plaintiff's property in a manner which increases, accelerates, and exceeds the original natural channel capacity to the damage of plaintiffs' property.' (Emphasis added)

COUNT II

'4. That in accordance with the Planning and Zoning Department of St. Charles County, defendant has and is grading and contouring said property so as to interfere with and change the natural watershed and the natural flow and drainage of surface water running from defendant's property onto plaintiffs' property.' (Emphasis added)

Once again, Haferkamp v. City of Rock Hill, 316 S.W.2d 620 (Mo.1958) debouches for a recitation of the Missouri law on liability for discharge of surface water on adjoining property.

The Missouri rule on surface water is an outgrowth of the common enemy doctrine which held that each landowner had a right to protect his property from surface water without regard for any possible adverse effects suffered by adjacent landowners. The Missouri rule is a modification of the common enemy doctrine and provides that 'a landowner in the reasonable use and development of his land may drain it by building thereon sewers, gutters and such other artificial water channels for the purpose of carrying off the surface waters into a 'natural surface-water channel' (citation omitted) located on his property without liability to the owner of the neighboring land . . . provided that he acts without negligence, and provided further that he does not exceed the natural capacity of the drainway to the damage of neighboring property.' Haferkamp v. City of Rock Hill, supra, at 625--626 (Emphasis added).

The Haferkamp decision, which has been consistently followed, ¹ makes actionable: a) the artificial collection of surface water and the dumping of it on adjoining property in increased and destructive quantities; b) the draining off of surface water in a manner which exceeds the natural capacity of the drainways; c) the discharging surface water onto adjacent land where it would not naturally have drained. ² Skaggs v. City of Cape Girardeau, 472 S.W.2d 879, 875 (Mo.App.1971), notes that exceeding the natural capacity of a drainway is itself an act of negligence. Most recently, the principles recited in the Haferkamp case were reaffirmed in Miller Land Co. v. Liberty Township, 510 S.W.2d 473 (Mo. banc 1974), with special emphasis given to the fact that exceeding the natural capacity of the drainway with resultant damage to adjoining property is, of itself, actionable.

Defendant charges that plaintiffs' petition lacks the magic words of Haferkamp that defendant 'collected, accumulated or gathered' surface water and is therefore deficient and fails to state a cause of action. Defendant asserts that even giving plaintiffs' petition the most favorable treatment, all that is alleged is that defendant caused an increased flow of water on plaintiffs' property by grading and contouring its own land--a permissible land use under Casanover v. Villanova Realty Co., 209 S.W.2d 556 (Mo.App.1948). However, under Haferkamp, a cause of action may be stated by pleading that the landowner has...