Hardy v. Kansas City

• Decision Date: 07 November 1955
• Docket Number: No. 22275,22275
• Citation: Hardy v. Kansas City, 284 S.W.2d 27 (Mo. App. 1955)
• Parties: Ethel HARDY, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
• Court: Missouri Court of Appeals

Page 27

284 S.W.2d 27

Ethel HARDY, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.

No. 22275.

Kansas City Court of Appeals, Missouri.

Nov. 7, 1955.

David M. Proctor, Frank O. Benson, Kansas City, for appellant.

Lillie Knight, Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiff was the owner of a house and three lots, facing south on 81st Street Terrace, immediately east of Brookside Road, which bounded her property on the west. During the spring and summer of 1951 defendant, Kansas City, Missouri, caused a sanitary and storm sewer to be constructed along Brookside Road, from 84th Street to 81st Street, one-half block north of 81st Terrace. Plaintiff's property was flooded a number of times, from May until December, 1951. She sued defendant, charging that the flooding was caused by defendant's construction of said sewer. Verdict was for plaintiff and she had a judgment thereon in the amount of $1,500, from which defendant appeals.

Plaintiff's property fronted 117 feet on 81st Terrace, and ran to the north 140 feet. The land to her north sloped toward plaintiff's property, as it did to the east; and the area south of her continued in a southerly slope. On the west side of Brookside Road Kansas City Public Service Company maintained a railroad embankment, several feet higher than the road. A creek flowed between the embankment and the west side of Brookside. The creek was from five to six feet in width and from two to four feet in depth. A constantly flowing spring emptied into the creek at a point about west of the southwest corner of plaintiff's property. Water flowed along the creek bed at all times. There was a drainage ditch along the east side of Brookside, some two feet deep and two feet wide. A fifteen-inch corrugated metal pipe carried water from the ditch under 81st Terrace, into a catch basin, and thence into a manhole located at the southeast corner of the intersection. There was a 24-inch vitrified clay pipe which led from the creek, hear the spring, diagonally across the intersection into said manhole, and a 24-inch pipe led from the manhole southeasterly to a point on the south side of 82nd Street, where it discharged into a creek. These installations had been privately constructed long prior to the time this territory was included within the corporate limits of Kansas City. The workmanship and materials were excellent, and the system was in good condition.

Plaintiff acquired her property in 1939 and occupied it as a home from that time until December, 1951, when she sold it. There was much substantial evidence to the effect that, during plaintiffs ownership, until May, 1951, there had been no flooding of her property except in 1943 when the Public Service Company installed steps leading down to Brookside from its embankment and which so obstructed the flow of the creek as to cause the waters thereof to 'shoot' across onto the west side of plaintiff's property, flooding the west 12 to 14 feet of her west lot. The evidence was also to the effect that the Public Service Company, shortly thereafter, removed and corrected the cause of the obstruction and that no further flooding occurred until May, 1951. There was no evidence to the contrary.

Plaintiff's witness, Schmitz, a qualified engineer, testified to the existence, good materials and workmanship, excellent condition, and adequacy of the drainage facilities existing at the intersection of 81st Terrace and Brookside prior to 1951. He stated that the facilities were adequate to satisfactorily carry drainage for 25 acres of land, of the character of terrain involved, and that the area actually to be drained was less than 20 acres. He also stated that the fact that there had been no flooding, except as above noted, for a period of 12 years, tended to establish the adequacy of the drainage facilities above described.

Plaintiff's evidence was to the effect that, during the course of construction, the contractor filled the creek to that it was level with the roadway of Brookside west of the intersection and west of the south portion of her property, covered the spring, and removed or broke the 24-inch pipe leading from the creek to the manhole above mentioned; that dirt was piled in the intersection and the manhole was covered with dirt; that, in May, 1951, there was a heavy rain which resulted in water draining from the north and east onto the lower west side of her property where it stood more than three feet deep; that it completely covered the surface of the intersection and covered the west two lots, coming up to the house, which was located on the east portion of her property; that it stood for two days and nights; that water also covered the land south of her down to 82nd Street; that she notified defendant of the situation and asked for relief; that she was told to notify Torson Construction Company, the contractor, which she did; that she was afforded no relief.

Her evidence was also to the effect that similar flooding occurred in July, about the time of the 'big flood,' and in August after the work was completed and the contractor had moved; that she had water on her west property at other times during the summer; and that there was also water on her property in December, when she vacated the property.

Her witness, Schmitz, testified to the effect that the nature of the terrain, including the ever flowing creek, required that drainage be provided to carry off the surface water; that if none were provided flooding likely would occur.

Plaintiff's Exhibit 5 was a profile map or plat showing the plan for construction of the sewer along Brookside west of plaintiff's property. It was prepared by defendant who contends that the contractor was required to follow the directions therein contained. The plan required that the creek be filled...