Kelso v. C. B. K. Agronomics, Inc., KCD26168

• Decision Date: 06 May 1974
• Docket Number: No. KCD26168,KCD26168
• Citation: 510 S.W.2d 709
• Parties: H. A. KELSO and Dora Dee Kelso, Respondents, v. C. B. K. AGRONOMICS, INC., Appellant.
• Court: Missouri Court of Appeals

Page 709

510 S.W.2d 709

H. A. KELSO and Dora Dee Kelso, Respondents, v. C. B. K. AGRONOMICS, INC., Appellant.

No. KCD26168.

Missouri Court of Appeals, Kansas City District.

May 6, 1974.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 3, 1974.

Application Denied July 22, 1974.

Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for appellant.

Morris, Foust, Moudy & Beckett, Max W. Foust and Duke W. Ponick, Jr., Kansas City, and Donald B. Russell, Nevada, for respondents.

Before DIXON, C.J., SOMERVILLE and WASSERSTROM, JJ., and WILLIAM J. MARSH, Special Judge.

DIXON, Chief Judge.

This appeal arises from a jury verdict awarding plaintiffs damages to their farm real estate as a consequence of alleged flooding. Plaintiffs, upstream owners of a large acreage, claimed permanent damages to their farm and real estate by reason of the construction of a reinforced concrete structure utilized as a bridge across the Little Osage River at the site of defendant's farm operation downstream. The defendant's appeal raises issues of the submissibility of plaintiffs' case, error in instructions, admission and exclusion of evidence, a departure from plaintiffs' pleading and proof on submission, and excessiveness of the verdict. Trial proceedings in four volumes of transcripts with over 150 exhibits delineate an extremely complicated fact situation. Attempting to make this opinion of reasonable length, a general statement of the factual background will be made; and as the contentions require, more detailed facts will be stated in the course of the opinion.

Orientation with the general geographic situation is necessary for understanding of the problems in this case. The lands in question are located in northern Vernon County and east of 71 Highway as it runs north and south through Vernon County. At that point, the Little Osage River, flowing generally easterly from Kansas and through Vernon County, joins with the Marmaton River which lies to the south and runs generally east and then northerly to join the Little Osage. At their confluence, they are variously called the Marmaton or the Little Osage River from that point to their juncture with the Marais des Cygnes River which flows generally southeast through Bates County, joining the Marmaton and Little Osage at a point east of the area we are primarily concerned with. After the confluence of these streams, the resulting river is referred to as the Osage River which flows generally east and a little north until it reaches the Lake of the Ozarks in central Missouri. One other flowage must be mentioned. There exists a drainage ditch, referred to as the Marais des Cygnes Drainage Ditch, running southeasterly through Bates County; and when it enters Vernon County, turns and flows easterly to meet with the Osage River near Schell City. Thus, the rivers described form a rough 'V' as they approach their ultimate joinder at Schell City, the Marmaton and Little Osage forming the southern portion of the 'V' and the Marais des Cygnes and the drainage ditch forming the northern portion of the 'V'. Along each branch of this V-shaped river pattern lies a broad flood plain relating to each of the streams. The land in this flood plain is extremely flat, there being an increase in elevation of approximately one foot per mile as one progresses upstream from Schell City through the flood plain to 71 Highway. The immediate concern will be with river system of the Marmaton and Little Osage in the area between 71 Highway and their juncture with the Marais des Cygnes. This river system, viewed on the aerial photographs and topographic maps, can be described only as serpentine. The plaintiffs' land is located immediately south of the Little Osage, immediately to the east of its confluence with the Mirmaton. Various witnesses identify the river from that point to its joinder with the Marais des Cygnes as, alternatively, the Marmaton or Little Osage. For purposes of clarity, it shall be referred to as the Little Osage herein. The plaintiffs' land lying south of the Little Osage is an irregular-shaped tract by reason of the meanderings of the Little Osage River. The first loop or bend from the west to the east on the northern portion of the plaintiffs' property is referred to as Ghost Bend where the Little Osage makes a horseshoe bend running first northwest, thence northeast, thence southeast. Then, making a broad loop from that general southeasterly direction back to the east, thence northwest, it encompasses another large tract of land which is referred to as Tiger Bend, thence turning again northeasterly, flowing generally east and thence southeast, it encompasses another large area referred to as Pine Bend. At the northwest neck of the area referred to as Tiger Bend, the river has cut through a channel or cut-off which carries a portion of the river's flow directly into the river on Pine Bend without traversing the area around Tiger Bend. Thus, Tiger Bend, looping into the center of plaintiffs' land, is, in effect, an island.

The plaintiffs' lands, which total 1,840 acres, were acquired over a period of years by the acquisition of various tracts. Approximately 1,200 of the 1,840 acres were considered to be upland farm lands, and approximately 640 acres are considered to be bottom land. Substantial improvements have been made to the upland farm area, and the bottom land has been improved with fencing, partial clearing, and selective thinning of pecan trees which cover most of the areas referred to as Tiger Bend and Pine Bend and some portion of Ghost Bend. Prior to 1968, the areas which were bottom lands and pecan groves had been selectively thinned for the purpose of producing an improvement in the pecan crop and to permit greater utilization of the native grasses which then grew in the bottom lands. Because the 185 acres of Tiger Bend was completely isolated by water, it was utilized as pasture by the plaintiffs; and access to it was afforded by two fords, one referred to as Slate Ford, and one referred to as Colin's Ford. In addition, plaintiffs have utilized Tiger Bend as a duck hunting area with particular emphasis on a slash or opening in Tiger Bend created for this purpose which had concrete duck blinds installed and a pump to maintain water in a low place at that point when it was not naturally flooded. It is conceded that all of the bottom land of the plaintiffs had been subject to overflow at various times as long as people could remember and that these overflows had occurred three to five times annually, depending upon the climatic conditions. As the river flows away from the eastern portion of the plaintiffs' property, it flows more generally north, but again in a series of serpentine bends. After it leaves the plaintiffs' property, there is a large tract of land comprising approximately 2,700 acres. This land is very generally flat, cleared, ditched and levied land. The levy which protects this land begins north of the western edge of plaintiffs' land, runs south to a point across from Ghost Bend, turns east and runs generally along the northerly side of plaintiffs' land to its eastern edge, then turns north and runs generally northerly along the large flat area referred to as the defendant's lands. This large flat flood plain within the levy was at one time known as the Dixon Meadows. Across the Little Osage which, as indicated, at that point is running generally north to northeast, lies another enormous flood plain known locally as the Crescent Meadows which has likewise been levide with the levy starting at the high ground on the east running west to one of the bends in the river, thence generally north to a point on the Little Osage some miles north of the plaintiffs' land. The effect of these levees as they encircle the large flat areas of land is to creat a gigantic funnel with the spout of the funnel at the north and the flaring portion of the funnel extending southwest and southeast. At the time these levees were constructed beginning in 1960 and completed in 1968, there was simultaneous activity to deepen, straighten and clear the channel of the river at the point where the levees come together to form the 'spout.' Dixon Meadows was being operated at the time the levees were constructed by a Mr. Craigmiles. He described the levee system in detail and his work in clearing the channel and providing a rapid dispersal of the waters collected by the levee system. Essential to the operation of the lands on the west side of the river was the drainage system which had to go through the levee system and into the river to drain surface waters collected on the enormous areas enclosed within the levees. Mr. Craigmiles testifies that he had constructed two 48-inch gravity drain pipes and one 36-inch pressure pump pipe to accomplish this result. These pipes were placed so that the lowest pipe was approximately at the bottom of a natural water course, Crooked Creek. The second was placed slightly downstream but higher in the levee system, and the top pressure pump was again downstream but higher in the levee system as explained by Mr. Craigmiles. The two lower drain pipes operated on what he referred to as a gravity flow system. Each of them had a hinged trap door which permitted water seeking the river level from inside the levee to push up when water within the levee system was higher than the river water. When the level of the river water rose higher, the pressure in the river would shut the trap, and the flow from inside the levee system would be cut off, and, likewise, the river could not drain back behind the levee because of the trap. When the river level rose high enough to close both gravity traps, the 36-inch pump was then utilized to remove surface water from inside the levee and shoot it into the river. This pumping system operated most efficiently when its outlet was not below the surface of the river, but it could be utilized,...