Hirsch v. Steffen, s. 34450

• Court: Missouri Court of Appeals
• Writing for the Court: WEIER; DOWD, C.J., and CLEMENS
• Citation: Hirsch v. Steffen, 488 S.W.2d 240 (Mo. App. 1972)
• Decision Date: 31 October 1972
• Docket Number: Nos. 34450,34460,s. 34450
• Parties: Victor HIRSCH et al., Plaintiffs-Respondents, v. Donald STEFFEN et al., Defendants-Appellants. . Louis District, Division One

Page 240

488 S.W.2d 240

Victor HIRSCH et al., Plaintiffs-Respondents, v. Donald STEFFEN et al., Defendants-Appellants.

Nos. 34450, 34460.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 31, 1972.

As Amended Nov. 29, 1972.

Bollow, Crist & Bollow, Shelbina, for plaintiffs-respondents.

Rendlen & Rendlen, Clifford H. Ahrens, Hannibal, for defendants-appellants.

WEIER, Judge.

The South Fabius River flows southeast-wardly through the northeast Missouri Counties of Lewis and Shelby. Plaintiffs own farms in the South Fabius Valley at and near the north boundary of Shelby County in both Lewis and Shelby Counties. Defendants own a valley farm in Shelby County southeast and downstream from the land of the plaintiffs. Defendants' land is separated from that of plaintiffs by the farm of Francis Dawson who is not a party to this suit. Plaintiffs filed this suit in 1969 to compel defendants to remove an obstruction to natural drainage and for damages.

The South Fabius Valley is low, flat and alluvial. Prior to its confinement to a drainage ditch the South Fabius River was a convoluted stream which constantly overflowed resulting in crop damages to the valley farms. All witnesses seemed to agree that fifty-two years before the trial in 1970 the river had been confined to a straight dredged or dug channel with side levees erected to prevent flooding of the nearby farms. In the area where the parties own their land, the main ditch containing the stream of the South Fabius runs straight from the northwest to the southeast and is located southwest of the farms involved in this conflict. Meandering through the Halstead, Hirsch, Dawson and Steffen farms (in the order named) is the old river bed. Over the years since the construction of the drainage system it has largely silted in, and aside from a few low spots and holes, it is filled with grass and other vegetation. But it generally has well defined banks and is lower than the surrounding land. This old river bed, although meandering, follows a course parallel with and north of the main ditch. More than a mile after it passes through the west boundary of the Steffen farm, it re-joins the artificial channel of the main ditch and continues its southeastward course. Although the levee along the main ditch now prevents flood water spreading over the valley, it also prevents surface and drainage water from entering the main ditch. Therefore, at various intervals in the valley ditches and drains have been constructed to the main ditch to carry off water. In the case of large areas drained at one time by tributary streams, ditches were constructed with protective levees so they directly entered the main ditch, but in the area with which we are concerned, small ditches or drains collect water. This water is channeled into pipes that run under the north levee into the main ditch. Flood gates prevent high water in the ditch from flowing back into the fields.

About the year 1958 Victor Hirsch, Francis Dawson and Donald Steffen jointly constructed a ditch from the old channel of the river in the west part of the Steffen farm south a short distance to the levee through which a thirty-six inch pipe was placed to carry the water into the main ditch. This drain was constructed to remove water from the old river bed, which if allowed to stand caused the adjacent ground to remain wet and soggy. This pipe as well as the others previously mentioned that are used to carry off surface water has a flood gate or backflow valve to prevent water from flowing through the levee back into the fields when high water fills the main ditch.

In 1969, after a 10 to 11-inch rain in three days inundated the entire valley, defendant Steffen erected a dam on his land across the old river bed immediately east of the ditch and pipe which he and his neighbors had constructed some ten years earlier. This had the effect of channeling all water previously carried off by both the old channel of the river and the ditch into the ditch alone and thence by the thirty-six inch pipe into the main ditch. Plaintiffs filed suit seeking injunctive relief and damages, contending that the erection of the dam prevented the natural flow of water down the old stream bed, and that when water was high in the main ditch the backflow valve prevented water from entering the main ditch thus causing an overflow on plaintiffs' upstream lands. When the water subsided in the main ditch, plaintiffs further asserted the flood water did not flow off as fast through the thirty-six inch pipe as it did when the old channel was open and the water could go down this natural drainway through the Steffen farm to its junction with the main ditch.

After hearing the evidence, the trial court made certain findings of fact wherein it determined that the private drainage system installed by Hirsch, Dawson and Steffen on Steffen's land was made only to supplement and not to supplant the drainage of the old channel of the river. According to court determination, the system was devised to remove standing water in the old bed of the river which frequently damaged crops through seepage and by maintenance of a high water level in the bottom fields. In time of high water, when the fields overflowed, the old channel of the river, when open, was an effective natural drainway to carry off these waters. There was substantial evidence to support the findings of the court. Not only was testimony adduced by the plaintiffs, but testimony given by the defendant Donald Steffen in the trial of another case in 1968 was introduced. In that case the defendants as plaintiffs had successfully prevented the maintenance of an obstruction in the same channel of the old river bed by a downstream landowner. We concur in the court's findings of fact. Rule 73.01(d), V.A.M.R.

After the court reviewed the evidence and found that the defendant had effectively and illegally blocked the channel of the old river which therefore had served as a natural drainway for the area and determined that it had at no time been abandoned, it directed counsel for plaintiffs to prepare a decree which would require the defendants to remove all obstructions placed in the channel within 120 days from October 23, 1970, the date of the findings of fact and the conclusions of law determined by the court. The final decree was to include the requirement that the channel be restored to a near approximation of its previous width and depth so as to accommodate the previous flow of the river. Further definite requirements were set forth in this written instrument signed by the judge and filed in the case on October 26, 1970. Thereafter on November 12, 1970, a conference was held between the parties and their attorneys with respect to an alternative solution for carrying out the order contemplated by the court's memorandum opinion. The record recites that by agreement of the parties, the court appointed two men as special commissioners to inspect the land in question and...