Hall v. Morton
| Decision Date | 06 May 1907 |
| Citation | 102 S.W. 570,125 Mo.App. 315 |
| Parties | MARTHA E. HALL et al., Appellants, v. JOHN MORTON et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
McReynolds & Halliburton for appellant.
(1) To constitute a watercourse there must be a stream usually flowing in a particular direction, though it need not flow continually; it must flow in a definite channel, have a bed sides or banks and usually discharge itself into some stream or body of water. Benson v. Railroad, 78 Mo. 504; Jones v. Railroad, 18 Mo.App. 251. (2) Sloughs or swales are not regarded, in law, as watercourses, as to water flowing over the country which had escaped from the banks or natural channel of a running stream. Jones v Railroad, 18 Mo.App. 251; Byrner v. Railroad, 47 Mo.App. 383. (3) The superior (higher landowner) proprietor has no right to collect the water in a body on his land or in greatly increased or unnatural quantities, and precipitate it upon his neighbor to the substantial injury of the latter. Schneider v. Railroad, 29 Mo.App. 68; McCormick v. Railroad, 70 Mo. 359; Abbott v Railroad, 83 Mo. 271; Benson v. Railroad, 78 Mo. 504; Rychlicki v. St. Louis, 98 Mo. 497; Paddock v. Sones, 102 Mo. 226. (4) The defendant claims that there are different rules where parties are mining to those set out above and laid down by the Missouri courts. It is true that so far as we can find the Missouri courts have not passed on a case of water, debris and sludge from mines, but an examination of the authorities will show that the only difference, if any, is that in mining, the rule is more stringent; and so far as debris, tailings, sludge etc., is concerned, the miner is absolutely bound to take care of it and keep it off his neighbor or adjoining proprietor's land. 15 Am. and Eng. Ency. (1 Ed.), p. 587, par. 5; Jones v. Jackson, 9 Cal. 237; Logan v. Driscoll, 19 Cal. 623; Hobbs v. Canal Co., 66 Cal. 161; Lincoln v. Rogers, 1 Mont. 217; Nelson v. O'Neal, 1 Mont. 284; Ralston v. Plowman, 1 Idaho 595; Harvey v. Mining Co., 1 Nev. 539; Woodruff v. Mining Co., 18 F. 753; Bainbridge on Mines, p. 518. (5) The lease from Martha E. Hall to defendant company's assignor is no protection to defendants creating a nuisance, because it does not authorize the doing of the acts of which the plaintiffs complain, does not authorize the sending of sand, sludge or debris onto plaintiff, simply requires the pumping of the land sufficient to permit efficient mining. Clear water has not injured plaintiff's land, the injury is caused by sand, sludge and debris washed down the branch by defendant's choking the channel and spreading over and destroying plaintiff's land and access from one part to the other. The lease should have been excluded. Wood on Nuisance, sec. 358; Steffen v. Railroad, 156 Mo. 336; Nunnelly v. Iron Co., 28 L. R. A. 421.
A. E. Spencer for respondents.
(1) The only drainage from defendants' land was the natural watercourse crossing defendants' land. This was practically conceded by all witnesses to be a natural watercourse. 30 Am. and Eng. Ency. Law (2 Ed.), p. 349. (2) When plaintiffs devoted this land to mining purposes, made the drainage over their other land necessary, and permitted it, and then sold the mining land to others, who bought for mining purposes, and because of the mineral value, the right of drainage was a necessary easement, a way of necessity, and plaintiffs' deed of the land by necessary implication carried the right. Kelly v. Dunning (N. J.), 10 A. 276; Insurance Co. v. Patterson (Ind.), 2 N.E. 191; Voorhees v. Burchard, 55 N.Y. 98; Boland v. St. John's Schools (Mass.), 39 N.E. 1035. (3) Even when the above question of the act of the former proprietor in creating a way of necessity does not arise, the cases hold that it is a material question whether defendants' use of the stream or watercourse is a reasonable one under all the circumstances. The evidence shows that except as restrained by the decree, the defendant company, is doing everything possible to protect plaintiffs' land, and that its use of its land is not only reasonable, but absolutely necessary. Townsend v. Bell, 70 Hun 557, 24 N.Y.S. 193; Helfrich v. Water Co. (Md.), 17 L. R. A. 117; Barnard v. Shirely (Ind.), 34 N.E. 600, 24 L. R. A. 568; Robb v. Village (Ill.), 42 N.E. 77; Brainard v. City (Mass.), 27 N.E. 995.
This is a suit by injunction to restrain the defendants from permitting sand, sludge and other debris from escaping from their mining operations onto and over the lands of plaintiffs. For convenience we have adopted in part the statements of counsel as to the facts of the case.
Plaintiff, Martha E. Hall, is the owner of the northwest quarter of the northwest quarter of section twenty-five (25), township twenty-nine (29), range thirty-two (32), in Jasper county, Missouri, with other adjoining lands. Her coplaintiffs are in possession of said premises, under lease from her, for agricultural purposes. The defendant company owns the north half of the southeast quarter of the southwest quarter of section twenty-four (24), and also a tract four hundred (400) feet square adjacent thereto and being a part of the northeast quarter of the southwest quarter of said section; all being in said township twenty-nine (29), range thirty-two (32), in Jasper county, Missouri. The four hundred (400) foot tract is described as mining lots 40, 41, 44 and 45. The company acquired and holds title to these lots subject to a mining lease given by plaintiff, Martha E. Hall, which lease is owned by the May Mining Company, a stranger to this litigation; but said company also owns a mining sub-lease on said lots, under which it is engaged in mining thereon. All the mining of which plaintiffs complain is being done on these four lots. Defendant, John Morton, owns the south half of the southeast quarter of the southwest quarter of said section twenty-four (24), and also all the northeast quarter of the southwest quarter thereof except said four lots. No mining complained of by plaintiffs is being done on his land. Defendant, Thomas Douglass, is the manager of defendant company. The land of this company is higher than that of the plaintiffs, and is crossed by a natural watercourse which continues over and across plaintiffs' land and then to Spring River. Plaintiffs seek to have all of the defendants restrained from throwing water, gravel, rock, or other waste material onto their lands, and from permitting water, gravel, rocks or other waste material to run over their land from the mines of the defendants.
After hearing all the evidence, the court rendered a decree, dismissing the bill as to defendants, Morton and Douglass, and enjoining the defendant company from depositing the sludge and refuse obtained in cleaning its pond on said four lots, "in such places or in such manner as to permit same to flow or be washed into the natural watercourse on said premises and the forty-acre tract immediately south thereof, and from thence washed and deposited on the lands of plaintiffs" south of the above-described premises. From this decree plaintiffs appeal.
On May 4, 1898, plaintiff, Martha E. Hall, owned all the land above described, and other lands, in all about eight hundred (800) acres in one body, not developed as mining land. On that date she and her husband executed and delivered to James Luke and plaintiff, C. T. Hall, a mining lease, giving the latter the right to mine for lead and zinc ores upon said northeast quarter of the southwest quarter of said section twenty-four (24), for ten years from that date, with contract to extend for another period of ten years upon compliance by the lessees, or their assigns, with the terms of the lease. The life of this lease is dependent upon performance by the lessees, or their assigns, of various terms and conditions therein contained, amongst which are the following, to-wit:
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