Gibson v. Sharp, 7393

• Decision Date: 08 April 1955
• Docket Number: No. 7393,7393
• Citation: 277 S.W.2d 672
• Parties: Mary Blanche GIBSON, Plaintiff-Appellant, v. Ella May SHARP, Lalla Adams, Gladys Phillips, Gladys Sharp, Bonnie F. Sharp, James Sharp, Dorothy B. Sharp Gaither and Hazel Norma Sharp Townsend, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 672

277 S.W.2d 672

Mary Blanche GIBSON, Plaintiff-Appellant, v. Ella May SHARP, Lalla Adams, Gladys Phillips, Gladys Sharp, Bonnie F. Sharp, James Sharp, Dorothy B. Sharp

Gaither and Hazel Norma Sharp Townsend,

Defendants-Respondents.

No. 7393.

Springfield Court of Appeals, Missouri.

April 8, 1955.

Jones & Jones, Kennett, for plaintiff-appellant.

Ward & Reeves, Caruthersville, for defendants-respondents.

RUARK, Judged.

The case is here by transfer from the Supreme Court. 270 S.W.2d 721.

Plaintiff's petition (filed June 1, 1951), after stating ownership and privity in title, alleged that the owners of adjoining lands agreed to the digging of a drainage ditch having for its purpose the benefit of both parties, about 1912, the digging and maintenance of the ditch thereafter and the use of such by both parties until the year 1951, when defendants barred plaintiff therefrom by construction of an earthen dam at the boundary line between the parties. Prayer is for mandatory injunction. The trial court denied the relief prayed for.

The substantive question is whether plaintiff-appellant has a right of drainage along and through a ditch which crosses the land of defendants-respondents.

Plaintiff is the owner of the North Half of the Northwest Quarter, Section 23, Township 17, Range 11, Pemiscot County. The east forty acres of this eighty was formerly owned by A. H. Wright, who died in 1942. Plaintiff purchased from his heirs in 1944. This east forty will be referred to as the Wright land. Lying along the north boundary of plaintiff's land is another eighty-acre farm owned by the defendants, which is described as the South Half of the Northwest Quarter, Section 14, Township 17, Range 11. Defendants are the heirs or devisees of W. M. (Preacher) Duncan, who died in 1941. It is the east forty of this land, directly north of the Wright forty, which is said to be burdened by a drainage ditch easement. We will refer to this forty as the Duncan land. Lying immediately north of the Duncan land is a tract which we will call the Coleman land. Running through the Coleman land in a general eastwest direction is Pemiscot bayou. At the point with which were are here concerned this bayou runs close to the north line of the Duncan land, leaving an intervening strip of Coleman land not exceeding seventy-five yards in width. All of the land involved is low and, in general, level, although it, particularly the northeast portion of the Duncan land, contains what are referred to by the witnesses as ridges. These appear to be low swells of the character formed by sediment-bearing water and are not to be confused with the high, rocky, 'hog back' ridges found in some other portions of our state. The drainage slope in the immediate vicinity is slight, but such as there is is to the northward toward Pemiscot bayou. Thus, standing on the Wright forty and facing north and slightly 'downslope' with the drainage, one looks from it across the Duncan forty to the Coleman tract, where Pemiscot bayou runs its crooked way.

At some time between 1912 and 1914 plaintiff's east forty was occupied and farmed by plaintiff's predecessor in title, Wright. All of it was in cultivation except a small tract near the north boundary which was lowland, in thicket and used as a pasture. At that time the east forty of the Duncan land to the north was in woods except some nine to fifteen acres on the east side cleared and in cotton. Duncan did not live on the tract and cultivation of this portion was by tenant. Extending through the approximate center of the Duncan tract was a swale or a swag, not in any sense a ravine or gully but a depression or series of depressions which were lower than the land on the east and west and where, at least in wet weather, water collected and stood in the woods. This series of depressions, sometimes referred to as sloughs, extended some distance into the Wright forty which adjoined on the south. As water accumlated in rainy seasons on the Wright land and the higher portions of the Duncan land it gradually worked its way to the north down the swale toward Pemiscot bayou; so also in extremely wet weather and when the water in the bayou was high did it creep back up through the sloughs and spread over the lower lands. The Wright land, even at this time, had some laterals or ditches which drained into the swale on its south side of the boundary line. While the evidence is not entirely clear as to this point, it would appear that there were also some lateral ditches on the Duncan land.

According to plaintiff's evidence, about the year 1912 Wright and his sons, by agreement with Duncan, cut what is called the spade ditch. This ditch commenced on the boundary line between the Duncan and Wright forties at about the center and and thence meandered northward with the swale through the woods following the depressions, skirting where possible the ends of minor swells, to the north line of the Duncan land. From there the water drained off into the bayou through a 'dip' on the Coleman land. This spade ditch was not continuous but was only a connecting of low spots in the swale and a cutting through of the 'ridges' where necessary. It was to some extent experimental, to find where the water 'wanted to go.' Most of the work was done by Wright and his sons, but Duncan was present from time to time during the progress of the work and helped occasionally. Within two years afterward the Wright family, this time with the assistance of some extra help, went in with teams and scrapers and, following approximately the meanderings of the drainage which had been established by the spade ditch, made a continuous ditch approximately six feet wide at the top and four feet at the bottom. The depth varied as necessity required according to topography. This is called the scraper ditch. The construction was by agreement with Duncan, who, prior to commencement, walked over the land with Wright and was present and occasionally assisted by taking an ax and chopping roots out of the way. The principal labor and expense were furnished by Mr. Wright and the time spent in this construction was approximately two weeks.

Both lands received the benefit of this ditch, which assisted nature in getting the water off more quickly and along a more narrow course. Mr. Duncan had sloughs on his land to be drained and a smaller ditch was dug to make lateral drainage. Thereafter Duncan gradually had cleared and put in cultivation more of his forty and the drainage from this cultivated land went into the scraper ditch. By 1932 all of his forty was in cultivation except a woods lot which followed the drain through the approximate center of his tract. Between 1932 and 1936 he completed the removal of all his timber. According to plaintiff's evidence Wright and his sons cleaned out the ditch every spring and kept it open for flowage until approximately 1934, and occasionally Mr. Duncan or his tenant assisted in the cleaning operation. The boundary line between the two forties was first used by the parties as a turnrow and as a private lane. Persons farming the Duncan land, as well as the Wright family and also the Gibson family, who owned the forty west of what we call the Wright land, used it as a matter of convenience. About 1922 a wooden culvert with a six-to eight-foot floor was built over and across the ditch or depression where it crossed the Wright-Duncan boundary line. This culvert was replaced as it rotted out or deteriorated on two different occasions. The first culvert was built by the Wrights with the assistance of Duncan, the second by Duncan's tenant with the assistance of the Wrights, and the third by the Wrights with the assistance of Duncan's tenant. Up to this point the evidence is in hopeless conflict, for the defendants and their witnesses deny the very existence of the spade and scraper ditches.

The years of the early 30's appear to have been a period of sparse rainfall, drainage was no problem and the ditch was not needed. For a period extending from 1932 (?)-1934(?) to 1937 the ditch was not maintained by anyone and became filled in at least to some extent, and apparently the culvert passed into oblivion. During this period Mr. Duncan was engaged in taking the timber off the last of his woods lot and placing the remainder of his forty in cultivation. His tenants 'dragged implements' across the bed of the old ditch and, in places at least, plowed across it. Thus the ditch as a separate and clearly distinguishable entity was practically eliminated and there remained only the general contour of a 'swag' twisting through the land. At some time, period not shown, it appears that the small laterals on the Wright land had also been plowed over. About 1937 the rainfall was again considerable and both tracts and crops thereon suffered from standing water. According to plaintiff's evidence, Duncan and one Howell, who was then his tenant, came and talked to Wright and they went down to look the situation over; Duncan said the ditch was going to have to put back and inasmuch as his tenants had been responsible for the dirt filling in he would put it back; Wright and his sons agreed that, if this should be done, when the first rain came they would go in and 'knock out the high places so it would have a natural drain.' Under that alleged arrangement Duncan got a grader and Caterpillar and built a ditch along the old scraper ditch line which was wider but not quite as deep as the previous ditch. This is the last ditch and we will call it the grader ditch. Such ditch ran to the north line of the Duncan tract. The dip on the Coleman land had filled in and Duncan gave one of the Wright boys $12 to dig the ditch on to the bayou. As to where the new ditch extended on the south there is a sharp dispute of facts. One McCloskey, who dug the grader ditch for Duncan, and other witnesses testified that it commenced, as directed by Duncan, at a pot hole some twenty-five...