Haith v. Atchison County

• Decision Date: 19 June 1990
• Docket Number: No. WD,WD
• Citation: 793 S.W.2d 151
• Parties: John and Leatha HAITH, Appellants, v. ATCHISON COUNTY, Missouri, Respondent, and Tom and Cora McEnaney, Respondents. 42124.
• Court: Missouri Court of Appeals

Page 151

793 S.W.2d 151

John and Leatha HAITH, Appellants, v. ATCHISON COUNTY, Missouri, Respondent and Tom and Cora McEnaney, Respondents.

No. WD 42124.

Missouri Court of Appeals Western District.

June 19, 1990.

Jefferson G. Broady, Rock Port, Scott W. Ross, Maryville, for appellants.

Donald Eugene Reynolds, Rock Port, for Atchison County, Mo.

John F. Burns, St. Joseph, for Tom

McEnaney.

Frank H. Strong, Maryville, for Cora McEnaney.

Before TURNAGE, P.J., and LOWENSTEIN and GAITAN, JJ.

LOWENSTEIN, Judge.

This appeal concerns a dispute between two adjoining landowners over control of water flowing over their agricultural land. Both sides asked for injunctive and monetary relief in this case tried to the court. Atchison County has not appealed nor did they file a respondent's brief. In order to make any sense of this controversy, a rough map is attached--the reader is directed particularly to the: 1) conservation ditch, 2) willow filled ditch, 3) southwest ditch, 4) the berms along the southwest portions of the McEnaney property, and 5) the dam on Deadman's Creek.

The McEnaneys and Haiths own farms in Atchison County. The farms lie side by side and have the Tarkio River as their southern boundary. The dispute arises from: 1) a conservation ditch which runs north and south the length of the Haiths' property; 2) the southwest ditch which runs from the southwest corner of the McEnaneys' property to the conservation ditch located on the Haiths' property; 3) Deadman's Creek which runs southeast across the McEnaneys' property; and 4) the willow filled ditch which runs east and west from the corner of the county road across the McEnaneys' property to Deadman's Creek.

Farm ground in and around Atchison County is highly erodible, and portions of both the Haith and McEnaney farms lie within a flood hazard zone. In addition, to the northwest of the Haith property there are hills which cause runoff.

Atchison County maintains a road which runs east and west along the north property line of the Haith farm. At the northeast corner of the Haith farm, the road turns to the north forming the west boundary of the McEnaney farm. When the McEnaneys moved onto their farm, there existed at the corner of the road a plank structure which served as drainage for water from the Redding farm. In approximately 1945, as the road built up, the township installed a drainage tube under the road at the corner. Later, the McEnaneys cut a ditch from that corner due east to Deadman's Creek. This ditch is referred to as the willow filled ditch.

Deadman's Creek flows in a generally southeasterly direction under the north-south portion of the county road and through the central part of the McEnaney farm until it deposits into the Tarkio River. Where the creek flows under the county road, there is a bridge maintained by Atchison County. By 1972, Deadman's Creek had begun to run so violently as to erode support from under the headwall of the bridge. In addressing the problem, the county engineer proposed to place a tube in Deadman's Creek downstream from the bridge on the McEnaney farm. The tube was meant to slow water flow in the creek, allowing it to deposit sediment once again around the headwall of the bridge. The county supplied a 48 inch tube to the McEnaneys who installed it in Deadman's Creek, constructed an earthen dam with a spillway to the east of the tube, and erected a berm from the dam to the roadway corner.

The Haiths' predecessor in title, Ralph Roberts, installed the conservation ditch which ran from a point approximately 1200 feet west of the corner of the county road south. The ditch was installed by Phillip Mathers and was tied to another ditch constructed on property to the south of the Haiths. The drainway had been there since the 1940's. When installing the ditch, Mr. Mathers observed another ditch which ran from the southwest corner of the McEnaneys' farm southwesterly on the Haith property to the conservation ditch. This ditch is referred to as the southwest ditch and its purpose is to drain the corner of the McEnaneys' southwest field.

In the spring of 1984, the Haiths complained to the county commission that water was running over the county road onto their property. The road supervisor recommended raising the road and installing two new tubes under it, one at the corner where a tube had previously been placed and one at the north end of the Haith conservation ditch. In June, 1985, the county installed a new tube at the corner but before the tube at the north end of the conservation ditch could be installed, the Haiths stopped the project.

In the spring of 1986, the Haiths constructed an earthen berm eighteen to twenty four inches high in the fence on the west and south side of the McEnaneys' farm. Mr. McEnaney claims the berm caused water to stand in his southwest field.

The Haiths filed this suit requesting an injunction to force the McEnaneys to remove the dam from Deadman's Creek. In addition, they asked for monetary damages claiming the dam caused water to overflow onto their land thereby diminishing crop production. They also sought to force their neighbors to maintain the willow In the decree the court found neither party adduced enough evidence to sustain an award of monetary damages. Nevertheless, it granted injunctive relief requiring: 1) Atchison County install a drainage tube under the county road at the north end of the Haiths' conservation ditch so that no less than 40% and no more than 60% of the water on the Redding property flow under the roadway; 2) the Haiths remove or alter the earthen berm so that water from the southwest corner of the McEnaneys' farm is allowed to flow to the Haiths' conservation ditch; and 3) the McEnaneys either increase the size of the tube in Deadman's Creek or enlarge the spillway on the east side of the dam so that waterflow resulting from a 50-year rain event will not be impeded.

filled ditch. The McEnaneys filed a counter-claim requesting the Haiths lower the inlet of the conservation ditch to allow more water from the north to flow onto their land and to remove the berms located on the south and west boundary of the McEnaneys' property. They also requested monetary damages for the flooding of their southwest field directly related to construction of the berms.

On appeal, neither party disputes that part of the order which finds no monetary damages. However, the Haiths appeal the injunctive relief given challenging the trial court's finding that the southwest ditch and the conservation ditch are watercourses. Also challenged is the court's decision to allow the dam which obstructs Deadman's Creek to remain with only minor modifications. Finally, the Haiths challenge that part of the order which places no duty on the McEnaneys to clear the willow filled ditch of debris.

Review of this case is pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Pollock v. Rose, 708 S.W.2d 218, 219 (Mo.App.1986). Determinations of fact by the trial court shall not be overturned if they rest upon substantial evidence. Schifferdecker v. Willis, 621 S.W.2d 65, 67 (Mo.App.1981); Roberts v. Hocker, 610 S.W.2d 321, 327 (Mo.App.1980).

The pivotal question which will control the outcome of the Haiths' first and second points on appeal is whether the conservation and southwest ditches are watercourses which could not be obstructed, or whether they act as mere conduits for surface water drainage.

Missouri follows the modified "common enemy doctrine" in respect to surface waters. Under this rule, "each landowner has an unqualified right, by operations on his own land, to fend off surface waters as he sees fit without being required to take into account the consequences to other landowners, who have the duty and right to protect themselves as best they can." Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 625 (Mo.1958); Darst v. Metro. St. Louis Sewer Dist., 757 S.W.2d 270, 275 (Mo.App.1988); Pollock, supra, at 219; M.H. Siegfried R. Est. v. City of Independence, 649 S.W.2d 893, 896-97 (Mo. banc 1983); Looney v. Hindman, 649 S.W.2d 207, 210-11 (Mo. banc 1983); Schifferdecker, supra, at 67; Camden Special Road Dist. of Ray County v. Taylor, 495 S.W.2d 93, 97 (Mo.App.1973); Happy v. Kenton, 247 S.W.2d 698, 700 (Mo.1952). However, a landowner is not...