Janes v. Levee Dist. No. 2

• Decision Date: 11 March 1916
• Docket Number: No. 1690.,1690.
• Citation: 183 S.W. 697
• Parties: JANES et al. v. LEVEE DIST. NO. 2 OF DUNKLIN COUNTY.
• Court: Missouri Court of Appeals

183 S.W. 697

JANES et al. v. LEVEE DIST. NO. 2 OF DUNKLIN COUNTY.

No. 1690.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Laura F. Janes and another against Levee District No. 2 of Dunklin County, Mo., and another. From verdict for plaintiffs, defendant Levee District appeals. Affirmed.

C. P. Hawkins and Donaldson & Tribble, all of Kennett, for appellant. R. L. Ward, of Caruthersville, for respondents.

FARRINGTON, J.

This is an action brought by landowners against an incorporated levee district for $1,200 damages. Ten jurors signed a verdict for plaintiffs for $600 damages, and from the judgment entered thereon, defendant appeals. C. W. Beeker, the contractor who constructed the levee, was joined as a defendant, but at the close of the case the plaintiff dismissed the action as to him.

The levee district was organized for the purpose of constructing a levee and ditch on the east side of the St. Francis river so that land along the river would be drained and protected from overflow. Plaintiff Laura F. Janes owned a tract of 54½ acres fronting about a quarter of a mile on the river, which runs in general direction north and south; the longest dimension of the tract being east and west. Across this tract of land and almost on the bank of the river was an old levee some 3 or 4 feet high and probably 4 to 8 feet wide at the base. This tract had formerly been owned by Charlotte E. Cagle (the mother of Laura F. Janes), who had on August 26, 1907, conveyed to the defendant a strip 100 feet wide across the tract, running with the river, for a right of way, "to be where the levee of the party of the second part [the levee district herein] is located, * * * to be used as a right of way for a levee by said party of the second part." Subsequently Charlotte E. Cagle gave the tract to Laura F. Janes, conveying it by warranty deed.

About the time construction work on the levee commenced the engineer of the levee district, A. C. Spiker, decided that the levee could not be built along the line of the old levee, which had caved in for a distance of some 600 feet on plaintiffs' land, according to Spiker's testimony, so that the old levee had been partially destroyed. He so reported to the board of directors of the district, who ordered the change of route for the proposed new levee, and a right of way was selected running in general with the banks of the river, a distance of from 100 to 200 feet from the old levee. This new route passed through the house and barn of the plaintiffs, so that, if the levee was placed there, the house and barn would either have to be moved or destroyed. Laura F. Janes testified:

"Part of the house would be in the right of way according to the deed given."

Plaintiff Laura F. Janes was objecting to the levee being built along the new route. She testifies that she was threatening to have the levee district enjoined, and so notified Mr. Beeker and the levee board. The levee was built on the new route dividing her land, so that 12½ acres were between the new levee and the river, and the other 37½ acres were east of the new levee. The plaintiffs' house and barn were moved so as to be on the east side of the new levee.

Plaintiffs brought this suit, alleging that:

Defendant had "wrongfully and unlawfully, without leave or license, and without any authority whatsoever from these plaintiffs, entered in and upon the above-described land and wrongfully and unlawfully converted and appropriated a strip of said land 100 feet wide and clear across the above-described, land * * * without having condemned said land, and without having legally obtained the same, and without paying these plaintiffs anything for said land, and that said strip of land is of the reasonable value of $400, and that the remaining tract of land belonging to these plaintiffs is damaged by reason of said appropriation of said strip of land as aforesaid in the additional sum of $800."

Defendant's answer: (1) Denies each of these allegations; (2) sets up its deed from Charlotte E. Cagle on the theory that it gave defendant the right to appropriate 100 feet in width at such point across the tract as such levee might thereafter be located on; (3) states that before defendant entered upon the strip of land described in plaintiffs' petition the plaintiffs agreed with defendant that they would give the said strip as a right of way for the levee, and demand no damages for same nor sue on account thereof if defendants would remove plaintiffs' house and set it up in as good condition on the side of said strip opposite the river, leaving the levee between the house and the river, whereupon defendant fully complied, and that by reason thereof defendant was not a trespasser, but entered upon said strip by permission of the plaintiffs; and (4) a paragraph to the effect that the construction of the levee on the new route was of greater benefit to plaintiffs' land than it would have been if constructed on the route originally surveyed.

As to the fact that defendant appropriated a strip 100 feet in width across plaintiffs' land, without having condemned the land and without having paid plaintiffs anything for it, it is undisputed.

The second clause of the defendant's answer, above set out, is also exploded by an examination of the Charlotte E. Cagle deed, which conveyed to the defendant 100 feet in width across the tract "where the levee of the party of the second part [the levee district herein] is located." That contemplated the route for the new levee as originally surveyed, and not the new route that was actually followed.

The third clause of the answer is also unproved in so far as it alleges that before defendant entered upon plaintiffs' land the plaintiffs made any agreement. And there is no evidence whatever that plaintiffs agreed with defendant that they would give the strip and demand no damages for the same, and not sue on account thereof; in fact, there is positive evidence to the contrary. There was no agreement of any kind before defendant entered upon plaintiffs' land.

As to the fourth clause in the answer the evidence was in square conflict.

At plaintiffs' request this instruction was given:

"The court instructs the jury that one of the defenses to this action is that plaintiffs are estopped to maintain this action for damages because of an alleged agreement with defendant whereby plaintiff agreed to waive damages and settle therefor on defendant moving the house and barn testified about, and that defendant carried out its part of said alleged statement, and that settled the question of damages herein sued for; but upon this defense the court instructs you that you will find against the defendant."

The evidence shows that defendant had taken down plaintiffs' fence; that plaintiff J. T. Janes immediately put it up again, and defendant then pulled it up, posts and all, with the dipper of the dredgeboat and went upon plaintiffs' land, and they were working inside the fence just above the orchard when the conversation occurred with plaintiff Laura F. Janes that defendant construes as a contract. The most that the evidence shows in this regard in defendant's favor is that plaintiffs permitted the defendant to go on with the understanding that the house would be removed, but this must be taken in connection with the fact that plaintiffs were about to attempt to enjoin the defendant, for the evidence shows that plaintiffs said nothing about giving defendant the land it was already appropriating or waiving any right to damages. There being no evidence to submit to the jury tending in any degree to support the plea of contract set up in defendant's answer, the court's instruction was proper. Defendant utterly failed to support this affirmative plea in its answer, and a peremptory instruction thereto was correctly given.

The defendant did move the house and barn and set them up in as good condition as before; the house being moved about 100 feet, so that it is now about 15 feet from the 100-foot strip taken. No damages are claimed by reason of this fact of removal; that is, no damages to the house or barn.

Appellant complains because the court gave conflicting instructions. It is true the court gave the peremptory instruction above referred to as to the affirmative plea in the answer. And it is also true that the court gave instruction No. 4 requested by defendant, which submitted to the jury that affirmative plea as though it was still an issue for determination by the jury. There being no evidence whatever in support of the affirmative plea, instruction No. 4 was clearly erroneous, but the error was in defendant's favor, and it cannot complain. See Perry v. Van Matre, 176 Mo. App. loc. cit. 109, 110, 161 S. W. 643.

Throughout the trial the defendant made numerous objections to evidence concerning the elements of damages recoverable under the allegations of the petition, and several of defendant's 22 assignments of error deal directly or indirectly with this question. The prominence given this matter in appellant's brief justifies our noticing with some detail the instructions on the measure of damages.

The plaintiffs' instruction told the jury that, if they found the issues for the plaintiffs, they...