Kissinger Private Levee System v. Mackey

• Decision Date: 25 August 1981
• Docket Number: No. 43238,43238
• Citation: 624 S.W.2d 64
• Parties: KISSINGER PRIVATE LEVEE SYSTEM, et al., Plaintiffs-Appellants, v. Marion MACKEY, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 64

624 S.W.2d 64

KISSINGER PRIVATE LEVEE SYSTEM, et al., Plaintiffs-Appellants, v. Marion MACKEY, et al., Defendants-Respondents.

No. 43238.

Missouri Court of Appeals, Eastern District, Division Three.

Aug. 25, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 16, 1981.

Application to Transfer Denied Dec. 14, 1981.

Branham Rendlen, Rendlen, Rendlen & Ahrens, Hannibal, Phillip G. Smith, Louisiana, for plaintiffs-appellants.

John M. McIlroy, Sr., McIlroy & Millan, and David H. Ash, Bowling Green, for defendants-respondents.

SNYDER, Judge.

The Kissinger Private Levee System and its members appeal from the trial court's judgment dissolving a temporary restraining order and refusing to grant them an injunction to prevent respondents, the Clarksville Levee Association and its members, from connecting their Clarksville Levee to appellants' Kissinger Levee. The judgment is affirmed.

Appellants challenge the trial court's judgment upon the grounds that respondents should be enjoined from making the levee connection because: (1) appellants had established title by adverse possession to the area where the Clarksville and Kissinger Levee were to be joined; (2) appellants' lease and easement to the area where the two levees were to be joined gave appellants exclusive rights to the area; (3) appellants had the power to refuse respondents permission to join the Clarksville Levee to the Kissinger Levee by virtue of § 244.120(2), RSMo 1978; and (4) an injunction was the proper method of enforcing appellants' rights.

The judgment in this court-tried case must be affirmed unless it is against the weight of the evidence or is not supported by substantial evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976).

The Kissinger Private Levee System and the Clarksville Levee Association are separate groups of individual landowners who have joined together to build and maintain levees for the purpose of protecting farm lands from the ravages of the floodwaters of the Mississippi River. Neither organization is a levee district incorporated under the provisions of Chapter 245, RSMo 1978, or predecessor statutes. Although a Clarksville Levee District was incorporated in 1920, the corporation became inactive within a relatively short time after incorporation, and the 50-year life of the corporation would have expired in 1972.

The Kissinger Levee was first completed in approximately 1920. The shape of the levee forms a rough "U" with the open end of the "U" to the west at bluffs and the bottom of the "U" along the Mississippi River. The high part or crest of the levee is approximately 15-feet wide. The slope of the levee from the crest to the base or toe is approximately 35-feet wide on each side of the crest. It is the northern flank of the "U"-shaped levee which runs generally from west to east which is the focus of the dispute between the parties.

A county road intersects the north flank of the Kissinger Levee. Respondent Mackey's property can be described as lying generally to the east of the county road and to the north of the Kissinger Levee.

Respondents have partially constructed a levee known as the Clarksville Levee to the north of, and roughly at right angles to, the north leg of the Kissinger Levee. The Clarksville Levee runs generally from north to south. Respondents propose to join the Clarksville Levee to the Kissinger Levee at a point roughly 30-feet east of the center of the county road on the north side of the Kissinger Levee on land which is a part of the record Mackey property. The levee joinder can be described as a "T" connection with the Clarksville Levee dead ending from the north at the Kissinger Levee which runs generally east and west. The dispute arises over which parties own or have a right to control the land where the proposed joinder of the two levees would be located.

An easement was established on the Mackey property in 1946. In that year, appellants acquired a lease from the Lowell Pattons and an easement from the Kenneth Pattons for the purposes of excavating, removing and using the dirt and other material on the servient tract for the building, enlarging, heightening, repairing, draining and maintaining the Kissinger Levee. The lease describes an area fifty feet wide extending along the southern border of the Mackey property. The easement describes an area fifty feet wide extending along the northern base of the Kissinger Levee. The lease and easement areas do not coincide but overlap. A fence once existed along the north flank of the Kissinger Levee the width of a wagon or tractor to the north of the base of the levee. The record does not reveal who built or maintained the fence but it had been torn down for many years before the dispute about the levee connection began.

Respondent Mackey entered a contract to purchase the Mackey property in 1957 and acquired the deed to the property in 1960. A portion of the property was acquired from the Kenneth Pattons and a portion from Kenneth and Lowell Patton who had undivided one-half interests in the second portion. Title to the Mackey property was conveyed subject to existing easements, levees, roadways and public utilities.

John Coulter, who was the county land surveyor for Pike County at the relevant time, testified for respondents that, as a part of the survey of the entire section in 1976 to 1977, he had surveyed a portion of the area in question. In doing his survey, the witness had tied into a government monument at Anada, Missouri. The witness had surveyed the land west of the county road intersecting the north leg of the Kissinger Levee. To the west of the county road, the section line runs generally along the crest of the levee. The witness also established a monument to the east of the place the county road crosses the Kissinger Levee.

Wesley Wagner, the deputy county surveyor completed the survey which included the Mackey property east of the county road. The witness testified that, beginning at the county road, the southern boundary of the Mackey property is five feet north of the center of the crest of the Kissinger Levee. At the east end of the Mackey property the boundary line is approximately 26-feet north of the crest of the Kissinger Levee. The Mackey property line generally follows the crest of the Kissinger Levee for 1,022 feet east of the county road before the levee changes direction slightly to the south and the Mackey property line moves down the slope of the levee. Respondents proposed to join the Clarksville Levee to the Kissinger Levee at a place where respondent Mackey's boundary is on the crest of the Kissinger Levee.

Witness Wagner had prepared two plats illustrating his survey which showed the location of the Mackey property line, the Kissinger Levee, and the areas covered by the appellants' lease and easement. The plats showed that the area of appellants' lease covered an area immediately to the north of and along the southern boundary of the Mackey property. The area of appellants' easement is generally parallel and to the north of the lease area but overlaps the lease area somewhat, the overlap being greater as the lease and easement areas extend to the east. On cross-examination the witness acknowledged the Clarksville Levee would have to traverse an area covered by appellants' lease and easement to be joined to the Kissinger Levee. The witness further acknowledged his survey had not taken into consideration a 1901 Lincoln County surveyor's record prepared for Wells, Wells, Boone and Shafer by Lincoln and Pike County surveyors. A notation on the record indicated the "(s)urveyors had disagreed as to the method of establishing the township corners but three of the parties agreed to the compromised line" further north of the line marked as the township line. Neither a Wells, Boone or Shafer were shown to have been prior owners of the Mackey property.

An engineer for the United States Corps of Engineers testified for appellants that the Corps of Engineers recognizes the Kissinger Private Levee System as a private levee system. The Corps of Engineers has inspected the Kissinger Levee at least every other year since 1956. The entire Kissinger Levee would presently be called a primary levee by the Corps of Engineers. If flood damaged, government assistance is available. If a levee were joined to the north leg of the Kissinger Levee, as respondents wish to do, and if the levee joined to the Kissinger Levee provided protection equal to or greater than the Kissinger Levee, that portion of the Kissinger Levee running from the place the levees were joined to the high ground away from the river would no longer be a primary levee. A non-primary levee might not be eligible for government assistance. In each situation, damages are assessed upon an individual basis, and the engineer for the Corps of Engineers had no opinion whether the section of the Kissinger Levee affected by joining the Clarksville Levee would actually no longer be eligible for government aid if damaged. The witness acknowledged the government does assist in repairing secondary levees if the levees provide protection for human life. Respondents introduced evidence that the Kissinger Levee protects people in at least three households who live within the area.

Appellants also introduced testimony by another expert witness, a civil engineer who had worked with hydraulics and levee systems. Appellants' expert testified that because of the slope of the river which would make the water elevation upstream higher than downstream, the north flank of the Kissinger Levee would be exposed to higher water elevations should a joined Clarksville Levee fail during flood conditions than if the Clarksville Levee were not joined. Because of the higher water elevations upstream, water breaching the Clarksville Levee upstream would stabilize within the levee at those higher water...