Happy v. Kenton

• Decision Date: 10 March 1952
• Docket Number: No. 42568,No. 1,42568,1
• Citation: 247 S.W.2d 698,362 Mo. 1156
• Parties: HAPPY v. KENTON et al
• Court: Missouri Supreme Court

Page 698

247 S.W.2d 698

362 Mo. 1156

HAPPY v. KENTON et al.

No. 42568.

Supreme Court of Missouri, Division No. 1.

March 10, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 14, 1952.

W. A. Franken, John Franken, and Dudley D. Thomas, all of Carrollton, Robert E. Coleberd, Liberty (Lawson, Hale & Coleberd, Liberty, of counsel), for appellants.

Wherritt & Sevier, Liberty, Wilson D. Hill, Richmond, Harry A. Hall, Kansas City, for respondent.

COIL, Commissioner.

Appeal from judgment entered upon jury's verdict for $11,000 awarded plaintiff-respondent for loss of growing crops, and reasonable rental value of land made inaccessible by reason of water thereon, as a result of a dam allegedly unlawfully constructed by defendants-appellants. We shall refer to the parties as plaintiff and defendants.

Defendants contend that: the court erred in refusing to direct verdicts for them at the close of all the evidence, in giving instructions 1 and 3; and that the verdict is excessive.

We have concluded for the reasons to be stated that the judgment should be affirmed.

Extending across the county line between Ray and Carroll Counties is Snowden Lake. This lake is roughly U or V shaped with the bottom of the U or V to the north and its sides extending generally southwest and southeast. It has existed as a natural depository for waters from surrounding areas for an indefinite time, but certainly during all the period covered by the testimony in this case--about 50 years. The size and shape of the lake varied from year to year depending upon the seasons, i. e., the amount of rainfall and snow. It has no source of water other than drainage from the surface of the surrounding area. Due south of the lake, approximately 1 1/4 miles, is the Missouri River.

The natural contour of the lands adjacent to the lake on the west and south is such that water runs from them eastwardly or northwardly into the lake. Prior to 1944, when the water in the lake reached a certain height, it would flow southeastwardly out of the lake at its southeast extremity. The lake also drains certain land lying to the north of the north bank of the lake by means of a tile drain later replaced by a wide ditch, which land, but for these drainage facilities, would not drain into the lake.

Defendant Kenton owns land south and southeast of the southeast end of the lake and defendant White owns land adjoining land of defendant Kenton on the south and other land between the lake and the Missouri River. Plaintiff farms land as a tenant, some of shich adjoins a road running generally along the south side of the lake at a point near the southwest end of the lake. Plaintiff, for purposes of this suit, is assignee of any claim for damage which the owners of the land he farms may have had.

Prior to the latter part of 1943, water from this lake would at times flow southeastwardly across portions of the lands of each of the defendants and eventually into the Missouri River. In the latter part of 1943, defendants constructed a levee or dam close to the north edge of the property of defendant Kenton across the place where prior to its construction the water from this lake flowed southwardly. As a result of the dam, the size of the lake was greatly increased, perhaps as much as three or four times its largest size prior to 1944, and at times water was caused to overflow at the southwest end of the lake onto the land farmed by plaintiff and at other times water was caused to stand on portions of plaintiff's lands, which water would otherwise have flowed into the lake.

Plaintiff at the trial proceeded and submitted his case to the jury on the theory that defendants by constructing the dam had obstructed a natural watercourse and were thereby liable for ensuing damages. Defendants contended and contend that they did not obstruct a natural watercourse, but only prevented surface water from flowing across their lands, which they say they could rightfully do. We make clear that plaintiff did not below and does not here contend that defendants obstructed a drain to which plaintiff claimed prescriptive rights. Nor does he contend that defendants negligently and recklessly dealt with surface water to his detriment. The issue then, on this appeal relating to the propriety of the refusal of defendants' motions for directed verdicts, has been narrowed to the question of whether defendants obstructed a natural watercourse. We assume, without deciding, that the overflow water from Snowden Lake and the water prevented from entering the lake was surface water.

Many cases have been written and much has been said concerning the relative rights and duties of landowners with respect to natural watercourses and with respect to their treatment of surface waters. It has often been said that in Missouri we adhere to and enforce the 'common law rule' as opposed to the 'civil law rule.' Whether the rule in this state is properly denominated 'the common law rule' has been questioned. See, Farnham on Waters and Water Rights, Vol. 3, Secs. 889(a)-892, pp. 2586-2620. However that may be and irrespective of terminology, Missouri is committed to the doctrine that one may not obstruct a natural watercourse without liability for ensuing damages to others, but that one may otherwise treat surface waters as a common enemy and obstruct their flow without liability for ensuing damages so long as he does so reasonably and not recklessly or negligently. Goll v. Chicago & A. R. Co., 271 Mo. 655, 665, 666, 197 S.W. 244, 246, 247; White v. Wabash R. Co., 240 Mo.App. 344, 351, 352, 207 S.W.2d 505, 508, 509; Beauchamp v. Taylor, 132 Mo.App. 92, 95, 96, 111 S.W. 609, 610; City of Hardin v. Norborne Land Drainage Dist. of Carroll Co., 360 Mo. 1112, 1120, 232 S.W.2d 921, 926; Abbott v. Kansas City, St J. & C. B. R. Co., 83 Mo. 271, 286, 53 Am.Rep. 581.

The courts of this state in determining whether a given drainway or waterway constitutes a natural watercourse, have many times approved the definition of a natural watercourse found in a Wisconsin case, Hoyt v. City of Hudson, 27 Wis. 661, and quoted in Benson v. Chicago & A. R. Co., 78 Mo. 504, as follows: 'There must be a stream usually flowing in a particular direction, though it need not flow continually. 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 water courses.' 78 Mo. loc. cit. 514.

An examination of a number of cases in this state which have decided the question of whether a given waterway is a natural watercourse within the definition above or similar definitions have reached, of course, different conclusions based upon the particular circumstances in each case. For example, in Gray v. Schriber, 58 Mo.App. 173, it was held that a natural depression over plaintiff's land was not a natural watercourse. In Benson v. Chicago & A. R. Co., supra, we held that the 'so-called waterfalls were nothing but depressions in the land, dry except when it rained. There were gullies, but dry except in freshets. The whole land was cultivated.' 78 Mo. loc. cit. 514. In St. Louis, I. M & S. Ry. Co. v. Schneider, 30 Mo.App. 620, it was held that a certain bayou was not a natural watercourse. On the other hand, in Place v. Union Township, Mo.App., 66 S.W.2d 584, 590, it was held that a slought which was shown to be a natural drain was something more than a 'mere temporary conduit of surface water' and that the trial court did not err in finding liability for obstructing it. Webb v. Carter, 121 Mo.App. 147, 98 S.W. 776, decided that a slough which was in effect an auxiliary channel to carry water from above to below plaintiff's land was a natural watercourse. In Keener v. Sharp, 341 Mo. 1192, 111 S.W.2d 118, we held that a certain bayou connecting a lake with the Mississippi River was a natural watercourse.

These are some of the legion cases in this state considering this troublesome question. Space forbids a detailed summary of the cases here, but an analysis of them justifies, we think, the conclusion that while we have adhered generally to the 'common law doctrine' of the right of a landowner to treat surface water as an enemy and, as a consequence of that rule, have required the evidence to show the existence of a natural watercourse as prerequisite to liaiblity for obstructing the flow of surface water therein, nevertheless, in determining whether a given drain is a natural watercourse, we have considered the function of the drainway as it then existed, rather than making the determination depend wholly upon whether a given waterway fitted precisely some approved definition of natural watercourse. Some of the specific applications of the 'common law rule' in this state may have resulted from a conclusion that this rule prohibits making any distinction between the various types of natural drainways and their particular functions but, on the contrary, makes it essential to hold that unless a drainway or waterway is in fact a natural watercourse then one may obstruct the flow of surface water therein without liability for ensuing damages. See again, Farnham on Waters and Water Rights, supra; and see, 56 Am.Jur., Waters, Sec. 6, p. 495 and Sec. 75, p. 562.

However this may be, we have concluded for the reasons hereafter stated that the waterway in this case should be considered as, and treated as, a natural watercourse and that a reasonable application of our 'commmon law rule' does not preclude this...