ALLEN, Presiding Judge.
Plaintiffs, who are respondents in this court, filed their petition in the circuit court of Pemiscot county, in two counts. Defendants, appellants herein, filed a demurrer to both counts of the petition, which the court sustained as to the second count, but overruled as to the first, and the case was tried on the first count of the petition.
The first count of said petition was as follows:
"Plaintiffs state for their cause of action against defendants, that plaintiffs are the owners of a parcel or strip of land, situate in the Northeast Quarter of Section 24, Township 19, Range 12 East, in Pemiscot County, Missouri, said parcel or strip lying between the St. Francis Levee and the Morris Lake (Big Lake) in said county; that said lake lies between said land and the Mississippi River and is and has been for more than fifty years connected with said river by a natural drain and watercourse through which the waters of said river flow into said lake when said river rises and through which the waters of said lake flow back into said river when said river falls, and the flow of water through said drain is not obstructed; that said drain is the only outlet of said lake; that usually during the spring of every year the waters of said river passing through said drain, cause said lake to overflow and to cover about twenty acres of the said lands of plaintiffs, for a period of about thirty days, when said river falls and the waters of said lake flow back into said river through said drain when not obstructed; that defendants, themselves and by their agents and servants have erected and constructed and are and have been maintaining a sluice or dam in said drain, which holds and prevents the waters of said lake from flowing back into said river when said river falls and thereby causes water to stand upon and flood about twenty acres of the said land of plaintiffs during the summer months and sometimes longer
each year; that said sluice or dam is so constructed it may be opened or closed at the will of the defendants; that when said river rises sufficient for waters of said river to flow through said drain into said lake, defendants open said sluice or dam and when said river falls so that the waters of said lake begin to flow back into said river, defendants close said sluice or dam to prevent said waters of said lake flowing back into said river; that defendants at this time have said sluice or dam closed, obstructing the flow of the waters in said drain toward the said river; that about twenty acres of the said land of plaintiffs, by reason of the closing of said sluice or dam, as aforesaid, by defendants, has been flooded during the summer months of past years and will be continued during the summer months of future years to be so flooded if defendants are allowed to operate said sluice or dam as aforesaid; that defendants will maintain and operate said sluice or dam as aforesaid in the future, and threaten to do so, and will thereby cause the said land of plaintiffs to be covered with water during the summer months, unless defendants are restrained and enjoined from maintaining and operating said sluice or dam in said drain; that the said twenty acres of the land of plaintiffs has growing and standing upon it valuable timber; that said land would be useful and suitable for farming purposes if cleared and not subject to overflow during the summer months of the year; that by reason of said land being flooded on account of said sluice or dam during the summer months, plaintiffs have been prevented from cutting and removing any of said timber on said land during said months of the year and will by reason thereof continue to be prevented from cutting and removing timber on said land during said months, unless defendants are restrained and enjoined from maintaining and operating said sluice or dam as aforesaid; that by reason of said land being flooded as aforesaid the same cannot be used for farming purposes, unless said land ceased to be flooded during the summer months in the future, and therefore plaintiffs are prevented from clearing said land and putting same in a state of cultivation; that by reason of the waters standing on said land and for such length of time during the summer the same becomes stagnant and offensive, breeding mosquitoes and producing conditions injurious to the health of plaintiffs or their servants while working on the land of plaintiffs immediately adjacent thereto; that by reason of the premises aforesaid plaintiffs will be greatly damaged if defendants are permitted to maintain and operate said sluice or dam as aforesaid in the future; that plaintiffs' damage thereby cannot be readily estimated and if required to sue defendants for damages for each year's trespass plaintiff would be put to a multiplicity of suits; that if defendants are not restrained from maintaining and operating said sluice or dam as aforesaid plaintiffs will be irreparably injured, and plaintiffs have no adequate remedy at law.
"Wherefore, the premises considered, plaintiffs pray that the defendants, themselves and their agents and servants, by the judgment and decree of this court, be restrained and perpetually enjoined from maintaining and operating said sluice or dam in said drain, and for such other and further relief as may be just in the premises."
Defendants, in their answer, denied each and every allegation in plaintiffs' petition, and further stated that defendants would lower the water now in said lake by reason of said dam to the depth that the water would be in said lake, should the ditch made by these defendants be filled so that the natural state or condition of the drain of the water from said lake to the Mississippi river would be maintained; and defendants prayed the court to require plaintiffs to accept the restoration of the depth of the water to its natural state, as satisfaction in this case.
Plaintiffs filed their replication, which, omitting caption, was as follows: "Now, this day come the plaintiffs in the above entitled cause, and for their reply to the answer of defendants, deny each and every allegation and averment of new matter therein contained; and for further defense thereto, state that said dam is not maintained in said drain for the purpose of protecting any land of defendants from overflow or damage by water, but is maintained for the sole purpose of preventing fish from passing through said drain, therefore, even though such drain be not a natural drain and watercourse defendants have no right to maintain said dam therein to the injury of plaintiffs or for the purpose aforesaid. * * *"
The cause was submitted to the court at the regular March term, 1935, and the
court made its finding in favor of plaintiffs, as follows:
"Now on this day comes the plaintiffs and defendants, by their respective counsel and this cause having heretofore been taken up and submitted to the court, and the court having heard the evidence and arguments, of counsel and being fully advised in the premises, doth find all and singular the issues for the plaintiffs, on the first count of the petition.
"It is therefore ordered, adjudged and decreed by the court that defendants, both and each of them, their agents and employes, be and they are hereby permanently enjoined from maintaining and operating a dam in the watercourse described in the first count of plaintiffs' petition herein, and the cost herein be and the same are hereby adjudged and taxed against defendants, and the plaintiffs have execution therefor."
Motion for new trial was filed by defendants; however, same was overruled and the cause comes to this court on appeal by defendants.
We think the evidence shows the drain in which the dam was erected and maintained is a natural watercourse. Its known presence dates back to 1848.
Charles S. Reynolds, a civil engineer, on the part of plaintiffs, testified, in substance, as follows: That he was a civil engineer and had resided in Pemiscot county for more than 45 years. That he was "in a measure" acquainted with the land of plaintiff, and made a plat of it on about the 20th day of February, 1929, which plat was offered in evidence, but he could not remember when the dam in this case was put in. That the lake had changed very little in width; that it might have filled up a little at the bottom, but not a great deal. That the government survey of that place was made about 1848. That survey showed the bayou between the lake and river. That he used the record of the survey in making the plat in evidence. There was no direct connection between the lake and the bayou at the time he ran the levels, and he did not know how high the land was between the lake and the bayou, but would say a foot and one-half to the highest point. That the bayou is a well defined channel. That at the time he was there for Mr. Sharp it was not up to the water line, but it was a dry time and the water was back something like a quarter of a mile. That the bayou originally connected with the basin or bed, but that sediment had filled it in, until in dry times the water stands in the lake. When the water is low and back in the lake, there is no water running into the bayou from the lake. That the bayou is the exit for the water when the water is high enough to run over the rim of the lake.
All of the witnesses, some of whom had known the drain in question for more than half a century, testified that it had always been about the...
