Hoester v. Hemsath

• Decision Date: 24 February 1885
• Parties: ANTON HOESTER, Appellant, v. ERNST HEMSATH, Respondent.
• Court: Missouri Court of Appeals

16 Mo.App. 485

ANTON HOESTER, Appellant,

v.ERNST HEMSATH, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

APPEAL from the St. Charles Circuit Court, EDWARDS, J.

Affirmed.

W. A. ALEXANDER and C. W. WILSON, for the appellant: No person has the right to protect himself from a stream or water-course by throwing it on the lands of another, or, on the ground of self-protection, to prevent the waters of floods and freshets from flowing where they are accustomed to flow.-- McCormick v. Railroad Co., 70 Mo. 359; Shane v. Railway Co., 71 Mo. 237; Munkries v. RailroadCo., 72 Mo. 514; Ang. on W. C., sects. 108 j,i 108 ik; Bruson v. Railroad Co., 78 Mo. 514.

C. DAUDT, for the respondent: The supreme court of the state, in a long line of decisions, have sustained the common-law doctrine, contended for by the respondent.-- Clarke, Admr., v. Railroad Co., 36 Mo. 224; Finley v. City of Springfield, 55 Mo. 119; Jones v. Hannovan, 55 Mo. 462; M'Cormick v. Railroad Co., 57 Mo. 437; Hosher v. Railroad Co., 60 Mo. 329; Minkers v. Railroad Co., 72 Mo. 514; Benson v. Railroad Co., 78 Mo. 504; Stewart v. City of Clinton, 79 Mo. 603.

ROMBAUER, J., delivered the opinion of the court.

It has been for some years past a mooted question in this state, whether the rights of land owners, in regard to the flow of surface water over their land, including the control and diversion of such water to the injury of adjoining owners, should be determined by the rules of the common law or by the rules of the civil law.

This question must be considered to be set at rest by the exhaustive opinion, delivered by the supreme court at its present term in the case of Abbott v. Kansas City, St. Joe and Council Bluff Railroad Co. In that opinion the supreme court reviewing its former ruling unanimously declares that the common law of England, having been adopted by statute as the rule of action and decision in this state, any law, usage or custom to the contrary notwithstanding, must be the governing rule on this subject as on all others. It overrules the case of McCormick v. Railroad Co. (70 Mo. 359), and Shane v. Railroad Co. (71 Mo. 237), as far as the same are in conflict with that view, and adheres to, and reinstates the common-law doctrine, recognized heretofore as controlling on that subject by a long course of uniform decisions. Clark v. Railroad Co., 36 Mo. 224; Imler v. Springfield, 55 Mo. 119; Jones v. Hannovan, 55 Mo. 462; McCormick v. Railroad Co., 57 Mo. 437; Hosher v. Railroad Co., 60 Mo. 329; Munkers v. Railroad Co., 60 Mo. 334. Starting from the premises that the rights of the parties in this controversy, are to be determined by the rules of the common law, we have examined the record in this cause for the purpose of determining whether an error was committed by the court below, in the trial, by which the plaintiff, appellant has been prejudiced.

The action is one, which in one count seeks to recover damages at law for the flooding of plaintiff's land; and in another count seeks equitable relief against defendant, who is charged with having erected a dam and constructed a ditch, diverting the natural flow of water from its course to plaintiff's injury.

The suit was instituted against two defendant land owners, who answered separately, defendant Hemsath's answer being the general issue and the statute of limitations. Upon the trial of the legal issue before a jury, and after the close of the testimony plaintiff dismissed as to defendant Linnemann, and the case was submitted to the jury on the legal issue against Hemsath, the respondent, alone. The jury found a verdict for the defendant, and subsequently the equitable cause of action being submitted to the court upon the same testimony, the court found the issues likewise for defendant, and dismissed plaintiff's bill.

As the right of action in cases of this character is controlled by the particular facts of each case, a detailed review of the testimony is essential to determine whether plaintiff has shown himself entitled to either legal or equitable relief. The testimony, which is almost wholly free from conflict, seems to establish the following facts with reasonable certainty: The Cork Hill or Caulk Hill Branch is a dry ravine, from one-half to three-quarters of a mile in length, and draining in connection with other small ravines, which empty into it, a hilly surface of considerable extent. The water coming down this ravine is the result of rains and melting snows, and has washed out a bed with more or less defined banks, but there is no living stream running in this bed, and whatever springs there are in the ravine are wet weather springs, which dry up entirely with the approach of warm weather. Plaintiff himself testifies the “the water coming down these branches is all rain water, there is no creek or living stream,” and one of his witnesses (Kaltmeyer) says, that “the Caulk Hill Branch is a dry branch or ravine, which carries off the rain and snow water from the hills.” It may be said therefore that touching the character of this water-course there is no controversy whatever.

It appears from a survey made by order of the trial court, a plat whereof has been offered in evidence and forms part of the record in this cause, that the lands of plaintiff and defendant lie in the bottom, at and near the foot of the hills from which the water comes through...