Kiger v. Sanko

• Decision Date: 05 December 1927
• Docket Number: No. 16109.,16109.
• Citation: 1 S.W.2d 218
• Parties: KIGER et al. v. SANKO et al.
• Court: Missouri Court of Appeals

1 S.W.2d 218

KIGER et al. v. SANKO et al.

No. 16109.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Rehearing Denied January 3, 1928.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be officially published."

Action by Dan Kiger and another against William Sanko and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Randolph & Randolph, of St. Joseph, for appellants.

Groves & Watkins and John S. Boyer, all of St. Joseph, for respondents.

BLAND, J.

This is a suit to recover damages to plaintiffs' land on account of surface water being collected by defendants and discharged in a body upon the land in a manner in which it would not have naturally flowed. There was a verdict and judgment in favor of plaintiffs in the sum of $250.00 and defendants have appealed.

The facts show that plaintiffs and defendants live on adjoining tracts of land near St. Joseph, Mo., and south thereof. Plaintiffs' tract is west of defendants. It consists of ten and defendants of 20 acres. Plaintiffs' land runs approximately 1,320 feet north and south, and about 331.25 feet east and west and defendants land the same distance north and south and 662.5 east and west. The parties acquired their respective tracts about the same time in 1922. At one time the two parcels of land were one tract owned by Peter Turner. When the parties purchased their land, there was a draw or ditch running in a southwesterly direction on defendants' land, ending near a cottonwood tree and about 50 or 60 feet east of the division line between the two places. It appears that the south half of the two tracts consists of low, more or less level, ground with a slight declivity toward the south; to the north the ground is high. Prior to about twenty years before the trial water in this ditch or draw spread out all over the low land and over the south part of both tracts. After so spreading out the water finally found its way to the southwest corner of what is now plaintiffs' tract where it escaped into a deep ditch on other property.

A great many years prior to the acquisition of the land by the respective parties hereto, a rock wall was built, level on top and varying in height from 2 to 8 feet according to the topography of the earth, running along the entire south line of plaintiffs' tract, except the extreme west end thereof where plaintiffs have a driveway, and continuing east along the south line of defendants' tract except at the east end thereof. The wall is of the same character through its entire length. About 20 years before the trial of this case the owner of the two tracts removed some rocks from this wall along the south side of what is now defendants' tract at a point about 50 or 60 feet east of the southeast corner of plaintiffs' land, leaving an opening or gap about 14 or 16 feet in width. This opening was to enable the owner to haul rocks from the hills which lie back toward the north. Teams with wagons were driven over a public road running along the south side of the two tracts through this gap and due north in the direction of the cottonwood tree above referred to. The wagon wheels made ruts or tracks in the earth and the surface water that came down the ditch or draw above described, instead of spreading out at the cottonwood tree, began to run due south down the wagon tracks and through the gap made in the wall, and into and across the public highway, cutting a ditch through the tract of land as it ran. This ditch at the time defendants began to change things on his property, varied in depth from 2 feet at the north end to 6 feet at the south. Some of the water, after a particularly heavy rain, continued to flow as it did before the wagon tracks were made and found its way into the deep ditch aforesaid, lying southwest of plaintiffs' tract.

After defendants acquired their tract, for the purpose of putting this part of their land in cultivation, they built up the gap in the rock wall by replacing the rocks therein, filling up the lower end of the ditch with dirt and brush and, at the place where the ditch turned near the cottonwood tree, filled the ditch with rocks. Defendants filled in the ditch in such a way as to prevent water from going south and dug a ditch from said point near the cottonwood tree in a southwesterly direction to plaintiffs' land. The first heavy rains washed out the rock wall where defendants had filled it in and they rebuilt it. Plaintiffs requested defendants not to stop the drainage and turn the water on their land, but defendants refused, stating that he would do as he pleased. After defendants stopped the ditch as aforesaid and dug the ditch to plaintiffs' land, plaintiffs constructed an embankment on the west side of the division fence, about 2 feet high running to the rock fence on the south. Thereafter defendants dug a ditch along the east side of plaintiffs' embankment toward the rock wall on the south side of the land, not for the entire length of the embankment, but running only to a point about 100 feet north of the rock fence. After defendants filled up the ditch made along the wagon tracks and made the other ditches complained of, water began to accumulate, and did accumulate, on defendants' land and being unable to escape by going through the ditch and gap which defendants had filled up, washed large holes through plaintiffs' embankment about the place where the open ditch along the east side thereof ended, and came in such force as to wash out a portion of the wall in front of plaintiffs' property about 100 feet west of the southeast corner. Plaintiffs' lands were caused to be flooded at every rain. Plaintiffs rebuilt their wall by replacing the rocks therein but it was washed out again two or three times. At the time of the trial ditches had been washed in plaintiffs' land 6 or 8 feet deep. Plaintiffs sued for damages to his wall and to a berry patch, where the flood came over his land and for damages caused by the ditches, which covered about one-eighth of an acre on his land. The evidence shows that down to 1922 there was no ditch through defendants' land continuing from the northeast down to plaintiffs' land and there was no ditch, drain or channel running across plaintiffs' land that carried water.

Shortly after the two tracts were purchased by plaintiffs and defendants, they erected a fence which they supposed to be the boundary line between the two, plaintiffs furnishing the posts and defendants the wire. Defendants' testimony tends to show that a survey was made after plaintiffs constructed their embankment, establishing that the fence along the south portion of the two properties was not upon the true line but about 7 feet west of that line, which would throw the embankment on defendants' property. Plaintiffs, however, refused at the trial to concede that the embankment was upon defendants' property; several surveys having been made of the division line but none of them agreeing as to where the true line ran.

It is alleged in the petition that on August 30, 1922, and various times thereafter defendants wrongfully and unlawfully obstructed the flow of the water through the ditch running north and south through their property to the public highway by building up their wall in question and filling in the ditch, causing the water accumulating on defendants' land to collect and gather in large quantities, and be diverted out of its natural course in a westerly direction toward and upon the lands of plaintiffs and that by reason of the wrongful and unlawful acts and conduct of the defendants, "* * * great quantities of surface waters were collected upon the land of defendants and by and on account of the artificial means theretofore created and maintained by defendants said waters were collected and diverted to and discharged upon the land of plaintiffs in a great flood; that said waters were diverted and discharged upon the land of plaintiffs by and on account of the ditches, drains, fills, walls and constructions wrongfully and unlawfully made and maintained by defendants upon their said land, and that none of said waters would have naturally flowed either toward or upon the land of plaintiffs."

The answer consists of a general denial and alleges that plaintiffs' damages were caused by the breaking of their embankment; that the reason the surface water flowed upon defendants' land was due to the building of the embankment that plaintiffs themselves had thrown across and over defendants' land; that the natural flow of the surface water coming from both tracts of land and other land in the vicinity was in a southwesterly direction into a well-defined channel which naturally extended across defendants' land in that direction and that defendants' land is the dominant estate and plaintiffs' land the servient. A counterclaim is then set up based upon the building of the dike or embankment by plaintiffs, which the answer alleges to have been constructed upon defendants' land. It alleges that the building of this embankment obstructed and prevented the natural flow of the surface water across the two tracts of land, causing the same to back up and flow in a southerly direction upon the west line of defendants' land, resulting in the creation of a deep ditch on defendants' land along the dike or embankment; that by reason of this ditch, defendants have been deprived of the use of a half-acre of their land. The counterclaim prayed judgment in the sum of $2,000.00.

Defendants insist that their instruction in the nature of a demurrer to the evidence should have been given. In this connection defendants contend that —

"* * * all the defendants did was to build up the gap in the wall; plow their field, and put it in cultivation, which tended to...