Higday v. Nickolaus

• Citation: 469 S.W.2d 859
• Decision Date: 07 June 1971
• Docket Number: No. 25627,25627
• Parties: Paul HIGDAY et al., Appellants, v. George NICKOLAUS et al., Respondents.
• Court: Court of Appeal of Missouri (US)

Page 859

469 S.W.2d 859

Paul HIGDAY et al., Appellants, v. George NICKOLAUS et al., Respondents.

No. 25627.

Kansas City Court of Appeals, Missouri.

June 7, 1971.

Motion for Rehearing or Transfer to Supreme Court Denied

July 30, 1971.

Application to Transfer Denied Sept. 13, 1971.

Terence C. Porter, Columbia, for appellants.

James H. Coonce, City Counselor for City of Columbia, Columbia, for respondents.

SHANGLER, Presiding Judge.

This appeal is from a judgment dismissing plaintiffs' Petition for Declaratory Judgment and Injunction. The judgment of dismissal was entered upon defendant City's Motion to Dismiss which alleged that plaintiffs' petition failed to plead either a justiciable controversy or any claim upon which relief could be granted. The questions raised on this appeal are: whether the averments of the petition entitle plaintiffs, to a judicial declaration of their rights to the percolating waters underlying their lands, and if so, whether defendant City's threatened use of the percolating waters is such an infringement of those rights as will be enjoined by equity.

The facts alleged and in substance shown by the petition of plaintiffs, now appellants, are these: Appellants are the several owners of some 6000 acres of farm land overlying an alluvial water basin in Boone County known as the McBaine Bottom. These lands (projected on Exhibit 'A' appended hereto) extend from Huntsdale at the north to Easley at the south; they are bordered by a line of limestone bluffs on the east and are enclosed by a sweeping bend of the Missouri River on the west. Underlying this entire plain are strata of porous rock, gravel and soil through which water, without apparent or definite channel, filtrates, oozes and percolates as it falls. This water (much of which has originated far upstream within the Missouri River Valley) has been trapped by an underlying stratum of impervious limestone so that the saturated soil has become a huge aquifer or underground reservoir.

Appellants have devoted the overlying lands to agricultural use with excellent resultant yields. They attribute the fertility of the soil to the continuing presence of a high subterranean water level which has unfailingly and directly supplied the moisture needs of the crops whatever the vagaries of the weather. Appellants also use the underground water for personal consumption, for their livestock, and in the near future will require it for the surface irrigation of their crops.

Respondent City of Columbia is a burgeoning municipality of 50,000 inhabitants which has been, since 1948, in quest of a source of water to replenish a dwindling supply. Following the advice of consulting engineers, it settled on a plan for the withdrawal of water by shallow wells from beneath the McBaine Bottom where appellants' farms are located and thence to transport the water to the City some twelve miles away for sale to customers within and without the City. In December of 1966, the electorate approved a revenue bond issue for the development of a municipal water supply by such a system of shallow wells in the McBaine Bottom. Further scientific analysis and measurement of the basin's water resources followed. With the aid of a test well, it was determined that the underground percolating water table, when undisturbed, rises to an average of ten feet below the soil surface. These waters move laterally through the McBaine alluvium at the rate of two feet per day and in so doing displace 10.5 million gallons of water daily.

Respondent City, by threat of condemnation, has acquired from some of these appellants five well sites ¹ totalling 17.25 acres. The City now threatens to extract the groundwater at the rate of 11.5 million gallons daily for purposes wholly unrelated to any beneficial use of the overlying land, but instead, intends to transport the water to its corporate boundaries some miles away for purposes of sale. The mining of the water as contemplated will reduce the water table throughout the basin from the present average of ten feet to a new subsurface average of twenty feet. Appellants complain that this reduction of the water table will divert percolating waters normally available and enjoyed by appellants for their crops, livestock and their personal use and will eventually turn their land into an arid and sterile surface.

On the basis of these pleaded allegations, plaintiffs sought (1) a judicial declaration that defendant City is without right to extract the percolating waters for sale away from the premises or for other use not related with any beneficial ownership or enjoyment of the land from which they are taken when to do so will deprive them, the owners of the adjacent land, of the reasonable use of the underground water for the beneficial use of their own land, and (2) that defendant City be enjoined from undertaking to do so.

The propriety of the trial court's action in dismissing plaintiffs' petition without hearing evidence depends upon whether the averments of the petition "invoke substantial principles of law which entitled plaintiff(s) to relief". Pollard v. Swenson, Mo.App., 411 S.W.2d 837, 840(4). These substantial principles of law require that a petition invoking declaratory relief allege a state of facts which shows a subsisting justiciable controversy between the parties as to their respective rights and duties, admitting of specific relief by way of a judgment conclusive in character and determinative of the issue involved. Glick v. Allstate Insurance Company, Mo.App., 435 S.W.2d 17, 20(1). Plaintiffs must show that they have a legally protectable interest at stake and that the question they present is appropriate and ripe for judicial decision. State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176(5--7). A mere difference of opinion or disagreement or argument does not afford adequate basis for invoking the judicial power to declare rights. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 72(3, 4). The facts on which the decision is demanded must have accrued so that the judgment declares the existing law on an existing state of facts. Borchard, Declaratory Judgments, p. 56.

In determining the sufficiency of plaintiffs' pleading as a petition for declaratory judgment, we accord it the benefit of every favorable and reasonable intendment the facts alleged will allow. Commonwealth Insurance Agency, Inc. v. Arnold Mo., 389 S.W.2d 803, 806(1). So construed, the petition is sufficient as a statement of a claim for declaratory relief. Unquestionably, it pleads an actual, existing and real controversy between the parties, one which has put plaintiffs in grave uncertainty as to their rights. The petition describes the defendant City as having embarked upon a course of action, subscribed by the electorate, as will ultimately and inevitably culminate in damage to plaintiffs by the permanent lowering of the water table throughout the basin with the consequent impoverishment of plaintiffs' lands. The facts pleaded show the City's design to exploit the McBaine Bottom as the principal source of the municipal water supply has advanced to the point where well sites have been acquired on land adjacent to that held by plaintiffs. (The City acknowledges in its brief that it has committed almost $5,000,000 to this project, that it has acquired the sites for wells and a water treatment plant, and that the laying of water lines is virtually completed.) When the wells become operative, the City claims the right to withdraw groundwater in any quantity at will, for sale, even though damages may result to plaintiffs. Plaintiffs deny the City has such a right. They seek a declaration that the City has an obligation to conform to a standard of beneficial use of groundwater, a use that is related to the overlying land.

Thus, the prejudice which threatens plaintiffs' interest is not hypothetical or contingent, but impending and real. It is a controversy which is ripe for determination, one susceptible of a judgment which will 'affect the legal relationships of the parties' (City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 414(5)) and 'declare a fixed right'. Glick v. Allstate Insurance Company, 435 S.W.2d l.c. 21(3). And although accomplished injury is not alleged, where a dispute as to legal rights is otherwise shown, a violation of those rights is not a precondition to the availability of declaratory adjudication. Borchard, Declaratory Judgments, p. 29. It is the distinctive function of this wholesome and ameliorative remedy to dispel uncertainty as to legal rights before actual loss has occurred thereby preserving to the parties 'the opportunity for calm negotiation * * * with a view to dispensing with litigation in the case'. State ex rel. United States Fire Ins. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, 31(9).

It is the position of respondent City, however, that the petition shows on its face appellants have no legal right which is subject to the infringement by respondent and in the absence of such a demonstrably legally protectable interest, no justiciable controversy exists and no declaratory relief may be rendered. Respondent maintains that since Springfield Waterworks Co. v. Jenkins, 62 Mo.App. 74, was decided by the St. Louis Court of Appeals in 1895, Missouri has recognized the common law rule that a landowner has absolute ownership to the waters under his land and, therefore, may without liability withdraw any quantity of water for any purpose even though the result is to drain all water from beneath his neighbors' lands. Therefore, contends respondent, since the threatened damage plaintiffs plead describes a consequence of the rightful use by respondent of its land, it is damnum absque injuria and not actionable. However '(i)t is not the function of this court on appeal from a judgment of dismissal to make an analysis of the law under which the rights are claimed or to determine whether plaintiff is...