Greisinger v. Klinhardt

• Citation: 9 S.W.2d 978,321 Mo. 186
• Decision Date: 06 October 1928
• Docket Number: 28295
• Parties: Andrew Greisinger v. Fred Klinhardt et al., Appellants
• Court: United States State Supreme Court of Missouri

9 S.W.2d 978

321 Mo. 186

Andrew Greisinger v. Fred Klinhardt et al., Appellants

No. 28295

Supreme Court of Missouri

October 6, 1928

Motion for Rehearing Overruled. October 6, 1928.

Appeal from Iron Circuit Court; Hon. E. M. Dearing, Judge.

Affirmed.

Orrin L. Munger and Foristel, Mudd, Blair & Habenicht for appellants.

(1) Streams which in their natural state cannot be used for floating boats and transporting property are private property. They are not public highways. Wadsworth v Smith, 11 Me. 278; The Montello, 20 Wall. 430; Neaderhouser v. State, 28 Ind. 270; Rhodes v Otis, 33 Ala. 596; Ellis v. Casey, 30 Ala. 728; Chisholm v. Caines, 67 F. 285; Lumber Co. v Ripley Co., 270 Mo. 132; Slovensky v. O'Reilly, 233 S.W. 481. (2) At the common law owners of the banks of rivers above tidewater had an exclusive right of fishing in such streams. 3 Kent (14 Ed.) 411, 412; Washburn on Easements & Servitudes (4 Ed.) 411; Gould on Waters (2 Ed.) sec. 46, p. 106; Hobart-Lee Tie Co., 219 S.W. 976. (3) The respective parties own the land under the water of the pond and the water over such land to the extent to which their grants convey to them the land under the water. Kirkpatrick v. Yates Ice Co., 45 Mo.App. 338; Edwards v. Ogle, 76 Ind. 302; Ridgway v. Ludlow, 58 Ind. 248; Clute v. Fisher, 65 Mich. 48; Hardin v. Jardin, 140 U.S. 383; Griffith v. Holman, 54 L. R. A. 183; 9 C. J. 184, sec. 58. (4) The owner of the soil under the water of the pond, in this case, has the exclusive right to the right of fishery and to the water over his soil. 2 Farnham on Waters, p. 1376; Lembeck v. Nye, 47 Oh. St. 353; Smoulter v. Boyd, 209 Pa. St. 146; Turner v. Selectmen, 61 Conn. 188; Kirkpatrick v. Ice Co., 45 Mo.App. 338; Slovensky v. O'Reilly, 233 S.W. 481. (5) There is no public right of fishery in a lake the title to the bed of which is in private ownership. 2 Farnham on Waters, 1427, 1389; Albright v. Cortright, 64 N. J. L. 332. (6) Whatever rights to boat and fish are in respondent are confined to the water over his own land. Commonwealth Water Co. v. Brunner, 161 N.Y.S. 794; Tripp v. Richter, 158 A.D. 136; Smoulter v. Boyd, 209 Pa. St. 146; Lembeck v. Nye, 47 Ohio St. 353; Turner v. Selectmen, 61 Conn. 188; 2 Farnham on Waters, p. 1376; Kirkpatrick v. Yates Ice Co., 45 Mo.App. 337. (7) Appellants had the right to erect a fence along the line of their soil under the water. When respondent or his patrons entered upon the waters over appellants' soil for pleasure or recreation, for boating or fishing, they became trespassers, and appellants had the right to fence them out. Smoulter v. Boyd, 209 Pa. St. 146; Tripp v. Richter, 158 A.D. 136; Schulte v. Warren, 218 Ill. 122; 2 Farnham on Waters, 1427, 1428, 1429; Hume v. Packing Co., 51 Ore. 237, 131 Am. St. 752, note; Slovensky v. O'Reilly, 233 S.W. 481. (8) Respondent has no right to complain if appellants lower the water. Appellants have the right to take out the dam if they choose. Goodrich v. McMillan, 26 A. L. R. 801, note p. 804; Farnham on Waters and Water Rights, 2398 (818), 2399-2406. (9) Appellants have the right to lower the water to repair the dam.

Davis & Dameron, Edgar & Banta, Emil E. Brill, Charles G. Revelle, James A. Rector and Elliott W. Major for respondent.

(1) The prescriptive right may be acquired in watercourses. Ranney v. Railroad, 137 Mo.App. 548; Schuler v. Weise, 9 Mo.App. 585; Smith v. Musgrove, 32 Mo.App. 241. (2) Prescriptive rights may be acquired in artificial watercourses as well as in natural ones where it appears that the former are intended to be permanent instead of temporary, thus leaving room for a finding that their use by a party asserting prescription was not precarious and by way of license from the owner, but adverse. Ranney v. Railroad, 137 Mo.App. 548. (3) All riparian owners have equal rights as to the use of the water, and each must exercise his right in a reasonable manner and extent so as not to interfere unnecessarily with corresponding rights of others. 40 Cyc. 559, 560, 562, 563; McIntosh v. Ranken, 134 Mo. 345; Abbot v. Railway Co., 83 Mo. 271; Schumacher v. Distilling Co., 178 Mo.App. 361; Shalk v. Inter-River Drain. Dist., 226 S.W. 278; State ex rel. Railroad Co. v. Allen, 267 S.W. 900; McGhay v. Woolston, 175 Mo.App. 330; Harrelson v. Railway, 151 Mo. 498; Hardin v. Jordon, 140 U.S. 371. (4) Each owner of land upon which a dam is situated may require that the owner of the other portion shall so use his part as not to unreasonably injure or destroy the whole. 1 C. J. 1234. (5) If a dam is on two tracts of land separately owned, the adjoining owners are joint owners in common of the dam. Yoakum v. Davis, 144 S.W. 877. (6) No riparian owner may appropriate or divert the entire water of a lake so as to deprive others of their rights and benefits therein. 40 Cyc. 635, 636. (7) Where there are several riparian owners of a lake each owner has free use of the whole surface of the lake. 26 C. J. 599; Beech v. Hayner, 207 Mich. 93. (8) No riparian owner can divert or lower the water of a lake, pond or stream so as to destroy the property of another such owner. 40 Cyc. 638. (9) There may be and is an implied grant of an easement over the entire lake and every part thereof. Hall v. Morton, 125 Mo.App. 322; 19 C. J. 914. (10) Where the owner of land has, by any artificial arrangement, effected an advantage for one portion to the burdening of the other, such severance of the ownership, either by voluntary alienation or by judicial proceedings, the holders of the two portions take them respectively charged with the servitude and entitled to the benefit, if such easement be necessary to the reasonable enjoyment of the property granted. Hall v. Morton, 125 Mo.App. 322; Fitzpatrick v. Jan Mik, 24 Mo.App. 435; 19 C. J. 914. (11) The plaintiff and defendants both relied on the permanency of Lake Killarney in its then status, and defendants stood by and saw, permitted and allowed plaintiff to make valuable and lasting improvements in the sum of twenty thousand dollars and are estopped to deny that plaintiff had a right to use and an easement on the whole of Lake Killarney and every portion thereof and which right and easement had been enjoyed by plaintiff and all owners preceding him. Holman v. Holman, 183 S.W. 625; Hurst v. City, 96 Mo. 172; Davis v. Lea, 239 S.W. 826; Craddock v. Short, 134 Mo. 457; Peterman v. Peterman, 228 S.W. 1063. (12) Plaintiff and defendants were joint owners of the dam and the same must be considered as a whole. It is a permanent structure and part of the real estate, and, being joint owners in common, neither one can use his part so as to injure or destroy the use, value or interest of the other. Yoakum v. Davis, 144 S.W. 879; 1 C. J. 1234.

OPINION

White, J.

The plaintiff, June 19, 1924, brought this suit to enjoin defendants from draining the waters from Lake Killarney, an artificial lake in Iron County. Defendants owned the land at the lower end of the lake where the dam was built, and the plaintiff owned the land at the upper end of the lake. The trial court issued a temporary injunction, and defendant filed a motion to dissolve. The court took evidence and overruled the motion, from which ruling defendants appealed.

All the land covered by Lake Killarney, and all the land owned by both plaintiff and defendants, under and adjacent to the lake, was formerly the property of the Arcadia Country Club. Through this land flowed Stout's Creek. In 1910, the Arcadia Country Club constructed across the creek a concrete dam four hundred and twenty-six feet long and thirty feet high. This caused the formation of Lake Killarney, which covered about 175 acres, and was three-fourths of a mile in length. Soon after acquisition of the property the Arcadia Country Club mortgaged it. This mortgage subsequently was foreclosed and through mesne conveyance and by tax deeds plaintiff and defendants acquired the land which they now own.

The plaintiff claims that the line between the two properties was about half way up the lake. The defendants claim that eighty-five per cent of the water of the lake was on their land. The plaintiff asserted and the defendants denied that the plaintiff also owned the land upon which about thirty-six feet of the dam at one end rested. The evidence upon this point turned upon the location of a survey and conflicting surveys. The trial court found the issue for the plaintiff. We think the weight of the evidence supported that finding.

The defendants had built cottages for rent upon their land at the lower end of the lake, constructed a diving tower for bathing purposes, rented boats, and served meals. The plaintiff likewise had erected a number of cottages at the upper end of the lake, and also maintained boats and the like for rent. Thus the plaintiff and the defendants each conducted a recreational resort, and each depended upon the waters of the lake for that purpose. Each obtained title and began improvements in 1922, about two years before this suit was brought.

Evidence showed that the lake had been stocked with fish from both federal and state hatcheries. It was shown without objection that immediately after the dam was constructed in 1910, the lake was thrown open to the public and people began to fish there. The place had been more or less public since that time. Two or three years after the dam was built it gave way in part and was repaired by means of subscriptions from people in the neighboring towns. Lots around or near the lake were sold by the Arcadia Country Club to its members, conditioned that the grantees should not convey to any persons other than members of the club.

The plaintiff and defendants got along very well for a time, each conducted a resort, and the guests of each used the entire...