Keener v. Sharp

• Citation: 111 S.W.2d 118,341 Mo. 1192
• Parties: Harry Keener and Irene Keener v. Robert O. Sharp and Loyce Sharp, Appellants
• Decision Date: 17 December 1937
• Court: United States State Supreme Court of Missouri

111 S.W.2d 118

341 Mo. 1192

Harry Keener and Irene Keener v. Robert O. Sharp and Loyce Sharp, Appellants

Supreme Court of Missouri

December 17, 1937

Appeal from Pemiscot Circuit Court; Hon. James M. Reeves Judge.

Affirmed.

C G. Shepard for appellants.

(1) The water in Big Lake or Morris Lake as well as the overflow therefrom, is nothing more than surface water against which the landowner has the right to fight and change the conditions without being liable to be called to account by adjoining landowners or anyone else, and the finding of the court in this case should have been for the defendants. Applegate v. Franklin, 109 Mo.App. 293, 84 S.W. 347; Johnson v. Gray's Point Terminal Ry. Co., 111 Mo.App. 378, 855 S.W. 941; Goll v. Ry. Co., 271 Mo 655, 197 S.W. 245; Hagge v. K. C. Ry. Co., 104 F. 391; Bird v. H. & St. J. Ry. Co., 30 Mo.App. 365. (2) The evidence in this case shows that the land upon which Morris Lake is situated as well as the ditch or slough across which the dam complained of is constructed, had been surveyed by the government, sectionized in the usual way, the title of which is in one of the defendants, L. O. Sharp, and is managed by the other defendant, R. O. Sharp. Neither the lake nor the drain or bayou or slough, whichever it may be termed, are navigable and never have been navigable streams or bodies of water, and said bodies of water belonging to the defendants in this case are not subject to the general laws of the State in connection with fisheries and riparian rights, but are such bodies of water as the owner thereof has the right to use and change and improve as they see fit, and no one has the right to say "nay." Kirkpatrick v. Yates Ice Co., 45 Mo.App. 355; Smoulter v. Boyd, 66 L. R. A. 829; Greisinger v. Klinhart, 282 S.W. 473; Adair Drainage District v. Railroad Co., 217 S.W. 70; Reid v. Ross, 46 S.W. 567; State v. Blount, 85 Mo. 543; Denning v. Graham, 59 S.W.2d 699.

Von Mayes for respondents.

(1) The petition states a cause of action. It states that the drain in question is a watercourse; that same connects Morris Lake and the Mississippi River; that the waters of said lake and river flow through its channel; that defendants erected and maintained a dam in said watercourse, which causes water to stand on plaintiffs' land, damaging the growing timber thereon, preventing them from clearing and farming said land and producing conditions injurious to health, etc.; that plaintiffs' damages cannot be readily estimated and they will be put to a multiplicity of suits, etc. Webb v. Carter, 121 Mo.App. 147, 98 S.W. 776. (2) Surface water, from whatever source it may spring, is that water which is separated from the waters of a natural body of water, such as a lake or river. When it flows into the lake or river, it ceases to be surface water. Beaugh v. Railroad, 218 S.W. 947; Schaek v. Drainage Dist., 226 S.W. 279. (3) A natural drain with well-defined banks which is the natural outlet of a lake, and through which the waters will reach a common place, is a natural watercourse, although it is called a swag or a swamp or a creek, and whether its course is straight or crooked. Hastie v. Jenkins, 53 Wash. 21, 101 P. 495. A creek which has all the other characteristics of a natural watercourse may be such in law, although it is dry most of the time. Ferris v. Welborn, 64 Miss. 29, 8 So. 165. The watercourse in question has well-defined banks and connects two natural bodies of water, lake and river, and therefore is a natural watercourse and not a surface water drain. Webb v. Carter, 121 Mo.App. 147, 98 S.W. 776; Place v. Union Township, 66 S.W.2d 584. (4) A dam in a natural watercourse is a nuisance. Beauchamp v. Taylor, 132 Mo.App. 92, 111 S.W. 609. The erection and maintaining of a dam in a watercourse in such manner as to obstruct the free passage of fish is a misdemeanor. Sec. 8264, R. S. 1929. (5) The evidence showed in this case that the dam caused water to stand on plaintiffs' land during the summer months, doing damage to the timber thereon, preventing them from clearing it for farming purposes and producing conditions injurious to health. This dam, if permitted to remain, would every year result in damages to plaintiffs. Injunction is the proper remedy to restrain a continuous and harassing trespass to prevent a multiplicity of suits. Nelson v. Kelley, 145 Mo.App. 110, 128 S.W. 832; Sherlock v. Railroad, 142 Mo. 172, 43 S.W. 629.

OPINION

Tipton, J.

This case comes to the writer on reassignment. It was certified to this court by the Sprinfield Court of Appeals, because one of the judges of that court deemed its opinion, reported in 95 S.W.2d 648, to be in conflict with the holding of the St. Louis Court of Appeals in the case of Applegate v. Franklin, 109 Mo.App. 293, 84 S.W. 347, and also with our holding in the case of Anderson et al. v. Inter-River Drainage & Levee District, 309 Mo. 189, 274 S.W. 448.

This is an appeal from the Circuit Court of Pemiscot County, Missouri, wherein that court enjoined the appellants from maintaining a water gate in a bayou which connects Morris Lake (or Big Lake) in that county with the Mississippi River. Morris Lake is a body of water two or three miles long and possibly a quarter of a mile wide, and lies between the levee of the St. Francis Levee District and the Mississippi River. The appellants own all the land extending from the west side of the lake east to the river. The respondents own land along the west side of the lake.

The bayou in question is one-half mile long with a winding course. It is about twelve feet in depth near the river and about ten feet in depth at the water gate, and is from twenty to thirty feet wide, tapering off in depth and width as it approaches the lake. On account of the overflow of the river, sediment collected and filled up the bayou where it connects with the lake, leaving it shallow, but still with well-defined banks and channel, so that, except in drought periods, water flows from the lake, through the bayou, into the river. When the river is at certain stages, its waters flow into and through the bayou in question to the lake, then when the river waters recede, the water runs out of the lake, through the bayou, into the river. A government survey of this region made in the year 1848 shows that this bayou was in existence at that time. The lands lying between the levee and the river in the vicinity of the lake consist of farms, tracts of timber, and bayous. Some distance north of this lake is a body of water known as Wolf Bayou, fifty or sixty feet deep, which has never been known to go dry. The surplus water of this bayou flows through a chain of small bayous into Morris Lake, thence through the bayou in question and into the river. Morris Lake is rarely dry and never has been known to be except in extraordinary drought years.

The appellants purchased the land in this vicinity in 1925. At that time there was some valuable timber standing along the east edge of the lake. In order to be able to remove the timber, they dug a ditch, or rather, removed the sediment deposited in the bayou near its junction with the lake, so that the timber could be floated from the lake, through the bayou, to the river. That year Morris Lake went dry. Later, the appellants built a water gate in the bayou in question and maintained it so that water would rise in the lake, consequently raising the water on the respondents' land from twenty-two inches to four feet. The object of this proceeding is to compel the appellants to remove the water gate, thereby letting the water run off of respondents' land which they claim could be cleared and put in cultivation. For a more detailed statement of facts, see the opinion of the Court of Appeals.

The appellants' principal assignment of error is that the "water in Morris Lake as well as the overflow therefrom, is nothing more than surface water against which the landowner has the right to fight and change the conditions without being liable to be called to account by the adjoining landowners or anyone else. . . ."

"The law seems to be well settled in Missouri that surface water is a common enemy which every man may ward off his land and thus throw it on an adjacent or lower owner, provided he does not, in warding it off, unnecessarily collect it and discharge it to the damage of his neighbor. The law is also well settled that water merely overflowing the banks of a river during a flood or freshet and spreading out over the bottom lands is surface water and thus falls within the rule regarding same.

"It is also settled law in Missouri that a natural stream cannot be dammed up nor...