Grandstaff v. Bland

• Decision Date: 04 June 1912
• Citation: 148 S.W. 139,166 Mo.App. 41
• Parties: JOHN B. GRANDSTAFF et al., Respondents, v. NEWTON S. BLAND, Appellant
• Court: Missouri Court of Appeals

148 S.W. 139

166 Mo.App. 41

JOHN B. GRANDSTAFF et al., Respondents, v. NEWTON S. BLAND, Appellant

Court of Appeals of Missouri, St. Louis

June 4, 1912

May 6 1912, Argued and Submitted

Appeal from Clark Circuit Court.--Hon. C. D. Stewart, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

O. C Clay, Whiteside & Rutherford and A. F. Haney for appellant.

(1) Plaintiffs' cause of action is based upon the charge that defendant is obstructing the channel of a natural watercourse by building a dam across it and diverting the water therefrom onto plaintiffs' lands. To make out their cause of action plaintiff must prove that Doe branch is a natural watercourse. Benson v. Railroad, 78 Mo. 504; Jones v. Railroad, 18 Mo.App. 251; Webb v Carter, 121 Mo.App. 147; Hoester v. Hemsath, 16 Mo.App. 485. (2) It being regarded as surface water, defendant's right to dig the ditch and to drain said water down into the natural depression leading from the southeast portion of his land is undisputed, as that natural depression leads to a natural watercourse. R. S. 1909, sec. 5662; R. S. 1899, sec. 6962; Gray v. Schriber, 58 Mo.App. 173. (3) If it be replied that the maintenance of this dam, levee and ditch, by reason of their diverting the water of the branch to a certain part of the land of plaintiff, is in the nature of a license revocable at the will of the plaintiff, the answer to that is that under the facts of this case the defendant's right to maintain these works is an easement and not a license, according to the controlling decisions of this state. Baker v. Railroad, 57 Mo. 265; School Dist. v. Lindsay, 47 Mo.App. 134; Sanford v. Kern, 223 Mo. 629. (4) The court erred in its rulings excluding the evidence offered by defendant, showing a contract or agreement entered into between defendant and plaintiff John B. Grandstaff for the purpose of disposing of the water. Power v. Dean, 112 Mo. 288; Sanford v. Kern, 223 Mo. 616.

T. L. Montgomery for respondents.

(1) Doe creek is a natural stream and watercourse and as such was made up, more or less, from surface water as well as numerous springs along its course before it reached the dam in controversy, with well defined banks, but after this water enters its banks from whatever source and commences to flow within its banks it is no longer considered surface water, although it does not flow continuously during the year. Jones v. Hanover, 55 Mo. 462; Kenney v. Railroad, 74 Mo.App. 301; Munkres v. Railroad, 72 Mo. 514; Summons v. Winters, 28 Am. St. Rep. 727; Gibbs v. Williams, 37 Am. Rep. 245. (2) Water escaping from this stream or diverted by the dam in question upon the lands of respondents is surface water against which they have a right to protect themselves. Johnson v. Railroad, 111 Mo.App. 378; McCormick v. Railroad, 57 Mo. 438; Abbott v. Railroad, 83 Mo. 271. (3) Any obstruction of the flow of water in a natural watercourse resulting in injury to another person, furnishes such person a right of action however careful the obstruction may have been made. Edwards v. Railroad, 97 Mo.App. 103; Rychlicki v. St. Louis, 98 Mo. 500; Paddock v. Somes, 102 Mo. 237; Woods, Law of Nuisances (2 Ed.), 1015. (4) A right to flow water over another or to change the course of a natural watercourse can never be created by parol, and is within the Statute of Frauds, and did not and coud not ripen into an irrevocable license short of the statutory period of ten years. Dunham v. Joyce, 129 Mo. 5; Tanner v. Valentine, 75 Ill. 624; Lead Co. v. White, 106 Mo.App. 222; Pitzman v. Boyce, 111 Mo. 387; Williams v. Beatty, 139 Mo.App. 167; Washburn on Easements (3 Ed.), pp. 23, 24; Desloge v. Peace, 38 Mo. 588; Fuhr v. Dean, 26 Mo. 116; Hurt v. Adams, 86 Mo.App. 75; Nelson v. Nelson, 41 Mo.App. 130; 30 Am. and Eng. Ency. Law (2 Ed.), 344; Anthony v. Building Co., 188 Mo. 704; Wilmington W. P. Co. v. Evans, 46 N.E. 1084; Tiedeman on Real Property (1 Ed.), sec. 600; Wilson v. Railroad, 42 N.W. 600; Woodward v. Seely, 50 Am. Dec. (Ill.) 445; Stevens v. Stevens, 45 Am. Dec. (Mass.) 203; Seidensparger v. Spear, 35 Am. Dec. (17 Me. 123) 234; Smith v. Musgrove, 32 Mo.App. 241; Jones v. Stover, 6 L.R.A. (N.S.) 155; Pifer v. Brown, 49 L.R.A. 497.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur in reversing and remanding, both solely on the ground that the trial court erred in the exclusion of evidence; Judge Nortoni being further of the opinion that the evidence tends to prove a natural watercourse.

OPINION

REYNOLDS, P. J.

This is a suit by plaintiffs, respondents here, for a mandatory injunction--mandatory in that it asks that defendant, appellant here, be required to remove a dam and fill up a ditch and remove a levee alleged to have been constructed by him along what is called a natural watercourse running through the south of defendant's farm and in a northeasterly direction and after passing through plaintiffs' farms and through the southwest corner of an adjoining farm thence in a southeasterly course, as it is claimed--and injunctive, in asking that defendant be restrained from further damming up or diverting the flow of water through what is claimed to be its natural course through the lands of plaintiffs, it being claimed that the waters of this creek, following their natural course and flowing through the lands of plaintiffs, would ultimately pass through sloughs south of plaintiffs' lands and thence into the Mississippi river.

Plaintiffs' farms adjoin each other, that of John B. Grandstaff lying immediately south of the farm of defendant and that of Taylor Grandstaff lying directly south and to the west of the farm of John B. Grandstaff. At the close of the evidence in the case the learned trial judge, under request for a finding of fact, found that what is called Doe Run branch, that being the name given to this stream, "is a natural watercourse and runs through the farm of defendant with well defined banks and bed and that the dam across Doe Run branch, and ditch running south therefrom, built by defendant, diverts the water from its regular channel and causes more water to run on plaintiff's (sic) lands, from said Doe Run branch than when in its original channel." The court by its judgment directed defendant to remove the dam and the levee along the ditch, which he had dug and constructed on his own land but south of this branch, and to fill up the channel or ditch which he had also dug on his own land. From this decree defendant duly perfected appeal to this court.

We have read all the testimony in the case as presented by the abstracts both of appellant and respondents and are not prepared to agree with the conclusion arrived at by the learned trial judge. In the first place, giving the respondents the benefit of the most favorable construction that could be placed upon their testimony, as we would do if this was an action at law instead of a proceeding in equity, we cannot agree that this Doe Run creek or branch is a natural watercourse. This is an action in equity for a mandatory injunction and it is a safe rule of decision to hold that an injunction will not be made perpetual on doubtful evidence. This rule is particularly applicable and of great force when in addition to an injunction to restrain from doing an act it is to be followed by a mandatory order directing the undoing of what has been done. The evidence upon which a court of equity will grant an injunction in cases of this character "must clearly establish the essential allegations of the bill, the burden of proof being on the complainant." [1 High on Injunctions (4 Ed.), sec. 870.] While in an appeal from an order granting a temporary injunction great deference is paid to the conclusion arrived at by the trial court, on a final decree the appellate court, as in all cases in equity, must consider the entire case upon the merits. [2 High on Injunctions (4 Ed.), secs. 1696, 1720.]

Our Supreme Court in Benson v. Chicago & Alton R. Co., 78 Mo. 504, 514, adopts the definition of a watercourse as given by the Supreme Court of Wisconsin in Hoyt v. City of Hudson, 27 Wis. 656, 661, as follows: "There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, sides or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the water flowing in the hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not in legal contemplation watercourses." That has been the accepted definition in this state from that time on. Our court in Webb v. Carter, 121 Mo.App. 147, 153, 98 S.W. 776 quotes the above approvingly, and Judge GOODE, who delivered the opinion in that case, cited many other cases in illustration of the rule.

It appears from the evidence in this case that there was only a flow of water in this watercourse in wet weather. It is true that it appears that there were bodies of water in hollows along this branch and a few springs that in wet weather also furnished water but with...