Johnson v. Leazenby
| Decision Date | 10 November 1919 |
| Citation | 216 S.W. 49,202 Mo.App. 232 |
| Parties | ORREN L. JOHNSON, Respondent, v. WILLIAM H. LEAZENBY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Harrison Circuit Court.--Hon. C. W. Wanamaker, Judge.
REVERSED.
Judgment reversed.
A. S Cumming and J. W. Peery for appellant.
Garland Wilson and J. C. Wilson for respondent.
Plaintiff and defendant each own eighty acres of land. These tracts adjoin. This action was instituted to recover damages alleged to have accrued to plaintiff by defendant erecting an embankment on his own land near the line dividing the two tracts, so that it obstructed the flow of surface water off of plaintiff's land onto defendant's, causing such water to back up over plaintiff's land and destroy his crops. The judgment in the trial court was for plaintiff.
It is charged in the petition that the topography of the land belonging to these parties was such that the surface water falling upon, or coming upon plaintiff's would naturally flow off of it onto the tract owned by defendant, and that defendant recklessly erected and maintained the embankment dike or dam on his own tract near the dividing line between the two owners, so that it obstructed the flow of the surface water just mentioned, preventing it from going upon or over defendant's premises and causing it to back upon plaintiff's tract and destroy his crops, consisting of wheat, corn and hay.
At the close of the evidence defendant offered a peremptory instruction that the jury return a verdict for him. It was refused by the trial court. The effect of the theory whereby plaintiff seeks to justify his recovery is, that while an owner of land may protect it from surface water coming from adjoining lands by embankments yet he must not do so in a "reckless" manner. The theory of defendant, sought to be applied by his peremptory instruction, is that he had an absolute commonlaw right to protect his own premises from surface water coming from plaintiff's land. We do not understand it to a part of his contention that in embanking against such surface water he may do so in a reckless manner; or that he may gather surface water in a body and discharge it on his neighbor. Confined to words only, plaintiff's theory recognizes defendant's right to protect his premises from surface water, provided he does not do it recklessly; but in applying this theory he destroys such right by insisting that if the effect of the embankment is to cause the water which formerly flowed over defendant's land to spread over plaintiff's land, the building of the embankment was a reckless act. In other words, plaintiff's position comes to this; that defendant has a right to dam against surface water coming off of plaintiff's land, but if he exercises such right it is a reckless act for which he may be enjoined or required to pay damages. A right becoming a wrong if exercised is a right denied, and, of...
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