Jones v. Des Moines and Mississippi River Levee Dist. No. 1, 31398

• Decision Date: 16 July 1963
• Docket Number: No. 31398,31398
• Citation: 369 S.W.2d 865
• Parties: L. R. JONES and Myrtle Jones, his wife, Plaintiffs--Appellants, v. DES MOINES AND MISSISSIPPI RIVER LEVEE DISTRICT NO. 1, a Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 865

369 S.W.2d 865

L. R. JONES and Myrtle Jones, his wife, Plaintiffs--Appellants, v. DES MOINES AND MISSISSIPPI RIVER LEVEE DISTRICT NO. 1, a Corporation, Defendant-Respondent.

No. 31398.

St. Louis Court of Appeals, Missouri.

July 16, 1963.

J. Andy Zenge, Jr., Canton, for appellant.

Louis F. Cottey, Lancaster, Craig Hiller, Kahoka, for respondent.

BRADY, Commissioner.

The appellants, plaintiffs in the trial court, brought this action seeking damages for the alleged flooding of their land by the respondent levee district, defendant in the trial court, and also praying for injunctive relief to prevent the defendant from allowing water to stand on their property. The trial court denied plaintiffs both damages and the injunctive relief sought and from that judgment they have prosecuted this appeal.

The defendant district is located in the northeast corner of Clark County and contains an area of approximately 12,000 acres. It was formed in 1903, and in 1923 and 1927 the pumping station and other improvements were added. Just outside the southeast corner of defendant's actual boundaries is located the Town of Alexandria, Missouri, and in that town lies the land owned by the plaintiffs. This is not the first time the drainage problems attendant to this area have caused reference to the courts. See Jones v. Chicago, B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5.

The pertinent portions of plaintiffs' petition are that they therein allge their ownership of Blocks 28, 61, and Lot 1 of Block 59, of Alexandria, Clark County, Missouri, and that defendant had '* * * caused, suffered and permitted water to overflow, cover and stand upon * * *' this property; that defendant was asked to remove the water and '* * * made no effort to do so * * *.' Plaintiffs' damages were prayed as $7,500.00. In Count II of their petition, plaintiffs allege this conduct on the part of the defendant has continued 'for several months'; repeated requests of the defendant to remove the water and repeated refusals of defendant to do so; that defendant's actions 'Constitutes a continuing trespass * * *' which makes it impossible for plaintiffs to use a portion of their land; and that the plaintiffs are without an adequate remedy at law. Plaintiffs prayed for an order '* * * restraining and enjoining the defendant * * * from flooding the land * * * and enjoining them from causing, suffering or permitting the water to overflow and flood the land belonging to the plaintiffs * * *.'

The answer to Count I admitted the ownership of the lands set out in the petition, except those '* * * which are within the natural boundaries of Keg Slough,' and denied the remaining allegations. The answer then sets out at length the defendant's contention that Keg Slough is a natural watercourse into which drained the surface and overflow waters from the surrounding area and in which slough also collected seep water when the Des Moines and Mississippi Rivers rose to or above the level of the bottom of this slough; that this slough had overflowed on numerous occasions prior to this; and, although the plaintiffs' land and the Village of Alexandria were outside of the defendant's boundaries, the defendant had voluntarily constructed a series of levees to protect them and in so doing '* * * and in regularly pumping from said Keg Slough and emptying outside said levees waters which would otherwise accumulate therein and overflow upon plaintiffs' property, without cost to plaintiffs * * *', defendant has been able to minimize this flooding. Defendant also alleged that whatever flooding occurred was the result of '* * * the natural and inevitable overflow of said Keg Slough * * *.' The answer went on to plead that by the continuous adverse and uninterrupted use of Keg Slough '* * * as a natural watercourse and as an integral part of its established drainage system * * *' and the collection of the waters therein for more than 25 years preceding this action, the defendant '* * * has acquired by prescription the right and privilege to use said slough and the banks thereof and the ground immediately adjacent thereto to a point coterminous with, and established by, the high water mark of said slough in rainy and overflow seasons, for the purpose of storing and permitting the natural flowage of the waters from its established drainage system through said slough as fully and with the same effect as though defendant had obtained from plaintiffs and their predecessors in title the grant of a lawful easement of record for such purposes in and upon said slough and the lands immediately adjacent thereto. * * *' The answer to Count I also alleged that the plaintiffs knew the slough overflowed when they purchased the property and that they had deliberately increased any damages by the location of certain personal property in places where '* * * the same were certain to be inundated by the overflow waters from said slough in wet seasons * * *.' The final allegation of the answer was that surface seepage and flood waters would cause the slough to overflow when either of the rivers was at flood stage regardless of the drainage by the defendant into the slough.

For its answer to Count II, the defendant re-alleged the matter set out above from its answer to Count I and also denied the lack of an adequate remedy at law. In the alternative the defendant set forth what it refers to in its brief as 'The comparative injury rule' alleging that the damage to it and '* * * to the public which it represents and serves * * * would be grossly disproportionate to any possible benefit which plaintiffs could obtain thereby and * * * would cause irreparable damage and detriment to defendant's entire drainage plan and system. * * *'

The scope of our review is too well known to require citation. We are to review this jury-waived case as we would an equity matter arriving at our own conclusions of law and findings of fact but duly deferring to the trial court's ability to judge the credibility of the witnesses. We are not to set the judgment aside unless it is clearly erroneous. Sec. 510.310, RSMo 1959, V.A.M.S.

The transcript discloses that essentially there were two issues litigated in this trial. The first was as to the water standing on Block 30 and those parts of Blocks 28 and 61 lying inside Keg Slough. The second issue was as to whether the defendant was liable for damage caused to plaintiffs' personal property standing on Blocks 28, 61, and Lot 1 of Block 59 and lying outside the banks of Keg Slough, by water overflowing the banks of Keg Slough. As to the first issue, the defendant's contention was that it had acquired the right to flood that land by prescription or, in the alternative, that these portions of plaintiffs' land lie within the banks of a natural watercourse. The plaintiffs contended that defendant was barred from pleading any prescriptive right, from introducing any evidence as to the acquisition of such a right, and from claiming that Keg Slough was a part of a natural watercourse by what they designate as 'res judicata.' It is in this connection that plaintiffs present three of its five allegations of prejudicial error. Therein plaintiffs contend that the trial court erred in overruling their motion to strike those paragraphs from the answer which set forth defendant's contentions that this slough is a part of a natural watercourse to which the defendant had acquired a prescriptive right, in admitting evidence as to the slough being a part of a natural watercourse, and in admitting evidence as to the existence in defendant of a prescriptive right. The plaintiffs also assign as error the trial court's action in allegedly refusing to take judicial notice that in yet another action tried before the court wherein the town of Alexandria was plaintiff and sought to drain waters into Keg Slough, the defendant took the position that Keg Slough was a private drainage ditch. Plaintiffs contend this allowed the defendant to adopt inconsistent positions to plaintiffs' prejudice. The plaintiffs' last allegation of error is that the evidence conclusively requires a judgment in their favor. In view of the result reached herein, there is no necessity to state plaintiff's evidence as to damage.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence in this case can best be understood by reference to plaintiffs' exhibit No. 1, set out above. A surveyor employed by plaintiffs testified that he had surveyed and platted plaintiffs' land as it is shown on that exhibit. He testified that when he went upon the property for this purpose, he saw frozen water extending over much of the northwest portions of Blocks 28 and 61; that he placed iron pipes at the places shown on the exhibit by driving the pipes through the ice and water where necessary; that about a week prior to trial, he returned to view the scene and found this frozen water around the northeast and southeast corner markers on Block 28 and the rest of the water located as it was when he placed the markers. He described the water as being contiguous and one body of standing water. He testified that the purple wavy lines on Exhibit 1 indicate the natural banks of Keg Slough which does have well-defined banks, and drew on that exhibit the representations of buildings which appear on Lot 1 of Block 28 and Lot 1 of Block 59 and placed an 'X' on the southwest corner of Block 61 where he saw 'a pile of tires' which were at the water's edge. He also testified that he saw piles of lumber and old bathroom fixtures stacked near the bank. The plaintiff later testified he stacked lumber and used plumbing fixtures from the 'X' at the southwest corner of Block 61 eastwardly along the bank to the back of his house on Lot 1 of Block 28.

The plaintiff, L. R. Jones, testified that he was the owner of the land surveyed by Fleming and depicted in Exhibit 1 and was present when the survey was made; that on the date of the trial,...