Haferkamp v. City of Rock Hill
| Decision Date | 08 September 1958 |
| Docket Number | No. 2,No. 46416,46416,2 |
| Citation | 316 S.W.2d 620 |
| Parties | Oliver T. HAFERKAMP and Avalene Haferkamp, husband and wife, Respondents, v. CITY OF ROCK HILL, a Municipal Corporation, L. Papin and J. E. Papin, Appellants |
| Court | Missouri Supreme Court |
Richard K. Nalley, St. Louis, for appellant City of Rock Hill.
William H. Becker, Raymond C. Lewis, Jr., Columbia, Rader, Love & Falzone, Clayton, Clark & Becker, Columbia, of counsel, for appellants L. Papin and J. E. Papin.
J. L. London, St. Louis, Louis L. Hicks, Clayton, for respondents.
STOCKARD, Commissioner.
Appellants L. Papin and J. E. Papin (hereinafter referred to as 'the Papins') and appellant City of Rock Hill (hereinafter sometimes referred to as 'the city') have appealed from a judgment against them in the amount of $9,000 actual and $8,800 punitive damages in plaintiffs' suit for alleged unlawful collection and discharge of surface water upon their property.
Plaintiffs Oliver Haferkamp and his wife, Avalene Haferkamp, are the owners of lots 9A and 10A in Warson Place in the City of Rock Hill in St. Louis County. All, or substantially all, of the two lots are located within a natural watershed of approximately eighteen to twenty acres. Unlike the usual watershed, this one has no outlet, natural or otherwise, leading to an above ground watercourse; instead it has what is termed a 'sinkhole' into which the surface water normally accumulates and seeps or enters into the ground. Plaintiffs' expert witness described a sinkhole as an area where 'the water [had] dissolved so much of the [underground] limestone that the roof or top of the limestone became so thin as to be unable to carry the weight of the soil above it and it collapsed,' leaving a hole or depression in the original surface of the earth. The sinkhole in this case consisted of a large depression approximately 200 feet long, 150 feet wide and 12 feet deep, a substantial portion of which was on plaintiffs' property and which extended to within ten or twelve feet of their house. Water entered the ground through a crevice in the bottom of the depression. Some of the witnesses referred to the entire depression as the sinkhole, as did plaintiffs' expert witness, and some referred to the place in the depression where the water entered the ground as the sinkhole. We will subsequently use the term in the latter sense in order to distinguish between the depressed area and the point of outlet of the water. Plaintiffs' lots are located in the extreme northern end of the watershed and the sinkhole is on their property.
The Papins' land was to the south of plaintiffs' lots but not adjoining, and was higher in elevation. Prior to its development it was 'rolling' and was covered with grass, pasture, a few trees and some crops. The watershed in question contained land other than that belonging to the Papins, and all of their land did not lie within the watershed. Prior to the development of their land by the Papins, the surface water from that part of the watershed south of plaintiffs' property normally drained northward and down or through a natural ravine or ditch which was approximately 50 feet wide and 10 feet deep. This ravine or ditch ended near the southern boundary of plaintiffs' property, and the surface water, not otherwise absorbed, drained into the depression and then into the ground through the sinkhole. At the time plaintiffs bought their property in June 1951 the depression and the sinkhole were there and they were aware of them. On that day, or a couple of days thereafter, there was three feet of water in the basement of their house and twelve feet of water in the depression. Mrs. Haferkamp testified that this water came from Warson Place to the west and not from the Papins' property. However, she gave no explanation of what happened to the surface water from the south which would naturally drain toward the sinkhole, and why, in her opinion, none of the water in the depression came from there. Plaintiffs' expert witness testified that in June 1951 the natural flow of the surface water in the watershed was to the sinkhole; that it could not have gone elsewhere; and that testimony that no water was coming from the south toward the plaintiffs' property would be 'wrong' and a 'mistake.'
Parts of Warson Place lay to the north and west of plaintiffs' property, and water from Warson Place Street was piped into the depression through a 12-inch concrete pipe which received surface water from three inlets or catch basins in the street. According to Mrs. Haferkamp it was the water which came through this pipe that caused the twelve feet of water in the depression and the three feet of water in the basement of their house in June 1951. One of plaintiffs' exhibits, a contour map upon which plaintiffs' expert witness had drawn 'the original natural watershed,' indicates that substantially all of Warson Place Street is outside the natural watershed of the sinkhole. Plaintiffs admit that the water from Warson Place is brought to the sinkhole pursuant to an easement over their property 'for Warson Place Subdivision water.'
Shortly after plaintiffs bought their property they built a 'manhole' over the sinkhole 'to take care of the Warson Place water that was piped in there.' The evidence is somewhat indefinite as to when the problem with the Warson Place water was corrected, but plaintiffs admit in their brief that at the time they moved into their hime in August 1951, 'the water from the Warson Place had been eliminated.' Plaintiffs apparently assumed that it was common knowledge how a 'manhole' which did not empty into an artificial drain but was built over a sinkhole would dispose of the surface water because they presented no testimony in explanation. It appears that what plaintiffs did was to build a brick wall around the opening or crevice in the ground into which the water normally drained. This wall was 16.5 feet high and the outside diameter of the manhole at the top (based on the appearance in a photograph) was approximately three or three and one-half feet. The water coming from Warson Place was piped through the wall and into the area of the sinkhole enclosed by the wall. Plaintiffs later filled or substantially filled the depression with 600 to 700 loads of dirt. A photograph introduced into evidence indicates that after the dirt was placed in the depression the manhole extended about four or four and one-half feet above the level of the dirt. There is no opening in the manhole other than for the 12-inch pipe from Warson Place except for a 4-inch pipe which is blocked about a foot from the manhole. This pipe apparently was placed there in June 1956, after this suit was filed, but who placed it there and why is not disclosed by the evidence, and there is no explanation of where the pepe leads to, if any place, or why it is blocked.
The Papins started in 1951 to develop on their land what they called the Kroenlein Subdivision. In doing so they built three streets and constructed about 65 houses. In the streets they constructed seven catch basins which drained into a 27-inch concrete pipe. This pipe was laid in the bottom of the natural ravine or ditch extending northward toward the sinkhole into which the unabsorbed surface water would normally drain. That part of the ravine or ditch containing the concrete pipe was then filled with dirt. The pipe extended to a point 12.5 feet south of the southern boundary of Warson Place where it ended, and the water was allowed to run out into the bottom of the northern portion of the natural ravine or ditch, and by following the natural drainage from that point it would run across a portion of lot 7A, across lot 8A and onto the land of the plaintiffs and into the depression, or into what was left of it after it was filled with dirt. It is the accumulated surface water flowing from this 27-inch pipe which plaintiffs contend the defendants wrongfully caused to be precipitated upon their land to their damage.
Mrs. Haferkamp testified that there 'really wasn't any water coming from the Kroenlein Subdivision until the [27-inch] pipe was laid,' and that the laying of the pipe was started in November 1951 and was completed in January or February 1952. However, her husband testified on deposition that they had lived in their house eight months to a year before the Papins began the development south of them, and that during this period the sinkhole (depression?) filled with water and they had water in their basement every time it rained. If this water did not come from the south there is no explanation as to where it did come from in view of the contention of the plaintiffs that 'the water from Warson Place had been eliminated' when they moved into their house.
Plaintiffs introduced into evidence photographs showing a substantial amount of water accumulated in their back yard in the area of the depression, or in what was left of the depression after it had been substantially filled with dirt, and which, according to Mrs. Haferkamp, came onto their land from the 27-inch pipe. The expert witness of the Papins, after being shown a photograph taken before the depression was filled with dirt, but showing the brick manhole surrounded with water testified on cross-examination that the photograph indicated that 'the sinkhole (the actual outlet for water) either was not functioning or it was insufficient,' but he, and no other witness, explained how any water, except that piped in from Warson Place, could get through the brick wall to the sinkhole.
Plaintiffs joined the City of Rock Hill as a defendant on the theory that it and the Papins were engaged in a joint enterprise in the development of the land, and that after the construction of the streets and storm sewers they were all turned over to and accepted by the city. When the Papins started the work of developing their land they...
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