Klokkenga v. Carolan, WD 65861.

• Decision Date: 27 June 2006
• Docket Number: No. WD 65861.,WD 65861.
• Citation: 200 S.W.3d 144
• Parties: Greg KLOKKENGA, Appellant, v. Gerald CAROLAN, et al, Respondents.
• Court: Missouri Court of Appeals

200 S.W.3d 144

Greg KLOKKENGA, Appellant, v. Gerald CAROLAN, et al, Respondents.

No. WD 65861.

Missouri Court of Appeals, Western District.

June 27, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2006.

Application for Transfer Denied September 26, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Andrew Farwell, Kirksville, for Appellant.

David Thrift Butsch and Joe Jacobson, Clayton, for Respondent.

RONALD R. HOLLIGER, Judge.

Greg Klokkenga appeals a judgment of the Circuit Court of Schuyler County finding in favor of Gerald and Karen Carolan in his judge-tried civil suit against the Carolans. Among other things, in his petition, Mr. Klokkenga sought an award of money damages to him, as well as an order requiring the Carolans to remove certain obstructions from a claimed "natural waterway" that Klokkenga alleged caused excess water to collect and remain upon his property. Finding no error, we affirm the judgment.

Facts and Procedural History

As found by the trial court and supported by other evidence presented at trial, the facts and procedural history of this case are as follows.¹ Mr. Klokkenga and Mr. Carolan are farmers and adjoining property owners in rural northeast Missouri. All of the property within the area of their dispute is in the Chariton River bottom.² In general, water drains very slowly from north to south in this area, which is extremely flat.³ Historically, excess surface water in the area has presented problems for all property owners in their efforts to cultivate their property.

Mr. Klokkenga owns 140 acres of real estate located in Schuyler County, which he purchased from Herman Fountain, Jr., and Connie Fountain in 2002. However, the only piece of land owned by Klokkenga which is relevant to this case is Tract A, a forty-acre plot. Tract A lies directly south of a county road running east and west and is located directly north of "Tract C," an adjoining forty-acre tract owned by the Carolans.⁴ A berm separates Tract A from Tract C, and extends to the east and west of "Point B."

Located directly south of Tract C is another forty-acre tract, which is owned by Paul and Linda Lay and is located in Adair County.⁵ The Carolans also own a large amount of property to the south of the Lay's property. This property is located in Adair County as well. The property line separating the Lays' forty-acre tract from the Carolans' southern acreage is marked by a half-mile long levee running east and west, which was present when Gerald and James Carolan originally acquired the property in 1974. In 1988, Mr. Carolan increased the height of the levee by approximately one foot to its current height of about five feet, closed a "free flow opening" in the levee that was about ten feet wide with fill dirt, and installed a fifteen-inch diameter drainage tube located at Point E to allow water to drain from the north side of the levee to the south side of the levee.

In 1983 and 1984, drainage ditches were constructed on that portion of Mr. Lay's property located in the same general area as Tracts A and C. These ditches run in a north-south direction. Despite the presence of these drainage ditches, Mr. Lay described the property generally as a wetland, where standing water is present most of the time, as did Mr. Carolan, who characterized it as a marshy, wet area, both before and after the fifteen-inch drainage tube was installed at Point E. For the past ten years, Mr. Lay has used the property to pasture livestock.

As noted supra, before Mr. Klokkenga purchased it in 2002, Tract A was owned by the Fountains. Historically, Tract A was not cultivated for farming purposes, but was used primarily as pasture land. Around 1994, Mr. Fountain constructed what is commonly known to farmers as a "W-ditch" and tried to grow crops on Tract A. The W-ditch runs generally from the northwest to the southeast and consists of two parallel channels approximately two and a half feet deep and ten feet wide at the bottom. The southern terminus of the channels is near the property line separating Tract A from Tract C. While Mr. Fountain was successful in raising some crops in the southeast portion of the property at some point after digging the W-ditch, the southwest portion of Tract A was a "natural pond" unsuitable for farming. No crops were grown on Tract A until sometime after Mr. Fountain dug the W-ditch because the ground was generally too wet to support crops.

In prior litigation in 2000 (case number CV300-45CC), Mr. Fountain sued the Carolans in the Circuit Court of Schuyler County for crop damage on Tract A, which was allegedly caused by the presence of excess surface water on that property. The case was settled on the day trial was scheduled to occur via a handwritten "Stipulation & Agreement" which provided, in its entirety:

The parties stipulate & agree as follows:

1. Plaintiff [Mr. Fountain] will construct a ditch across the SE corner of the Jr. Fountain tract (marked `Tract A' on Exhibit A which is the attached aerial photograph, which is hereby incorporated herein by this reference), described as the NE ¼ [of the] SW ¼ [of] Section 14 T[ownship] 64 R[ange] 16, Schuyler County, Missouri, said ditch to commence approximately 10' west of the existing drainway (marked `B' on the attached) as the drainway exits Tract A onto the Carolan tract (Tract C attached) described as the SE ¼ [of the] SW ¼ [of] Section 14 T[ownship] 64 R[ange] 16, Schuyler County, Missouri, said ditch to run thence generally easterly along the borders of Tracts A & C and located half on Tract A and half on Tract C until it reaches the east border of Tracts A & C, at which point it turns south, located entirely on Tract C and continue on the East border of Tract C until it joins an existing drainway (marked `D' on attached) which runs generally southeast along land owned by Clifford Lay.

2. The ditch will be a 10 foot flatbottom ditch, with minimum 3" per 100 foot drop and estimated w/o assuring to be approximately 3-4' deep at the NE corner of Tract C where it meets the aforementioned SE corner of Tract A.

3. Both parties have the right of ingress and egress onto the property of the other in order to maintain the ditch.

4. Defendants [the Carolans] will pay plaintiff the sum of $525.00 for constructing the ditch.

5. Parties hereby dismiss all pending claims without prejudice, costs to be shared equally.

The settlement agreement was signed by counsel for the parties (but not the parties themselves). Although this document was filed with the trial court and Mr. Fountain's lawsuit was voluntarily dismissed without prejudice, the "Stipulation & Agreement" was not signed by the trial judge in case number CV300-45CC, was not entered as an order or judgment of the court on the record in the case, and was not filed in the public real estate records of Schuyler County.

Mr. Klokkenga was not a party to the Fountain-Carolan lawsuit, nor was he a party to or signatory of the settlement agreement. In fact, Mr. Klokkenga did not actually see that document until approximately one month after he had purchased Tract A from the Fountains. Furthermore, when Mr. Klokkenga bought Tract A from Mr. Fountain, they did not enter into any agreement assigning Mr. Fountain's rights under the settlement agreement to Mr. Klokkenga. The drainage ditch was never dug because Mr. Fountain "just never did get around to it" before selling Tract A to Mr. Klokkenga in 2002, and the Carolans never paid Mr. Fountain the promised $525 since the ditch was never constructed by Mr. Fountain.

In January 2003, Mr. Carolan improved the existing berm on the property line between Tracts A and C. He increased the height of the berm, filled in a gap located at Point B, extended the berm to the northeast corner of Tract C, and then further extended it due south along the eastern boundary of Tract C.

Count I of Mr. Klokkenga's Second Amended Petition for Damages, which was filed in September 2003, alleged that the written "Stipulation & Agreement" described supra was "entered by the [Circuit] Court as a judgment on March 2, 2001" in case number CV300-45CC and constituted a covenant or easement which was intended to "run with the land" and was, therefore, enforceable by Mr. Klokkenga against the Carolans. Count I of the petition also alleged that the Carolans had breached that covenant and were also in contempt of the circuit court's alleged "judgment" of March 2, 2001, in that they had refused to allow Mr. Klokkenga to construct the drainage ditch referred to in the "Stipulation & Agreement," and that they had constructed a levee to the south of Tract A "which obstructs the natural flow of water, and which will cause water to back up" onto Tract A. Mr. Klokkenga sought the entry of an order requiring the Carolans: (1) to show cause why they had refused to comply with the alleged "judgment" of March 2, 2001; (2) to grant Mr. Klokkenga the right of ingress and egress to Tract C to construct and maintain the drainage ditch referred to in the settlement agreement; (3) to pay Mr. Klokkenga $525 once the ditch was completed; and (4) to remove the levee at Point E.

In Counts II and III, the petition alleged that flooding caused by the Carolans killed Mr. Klokkenga's crops located on Tract A and prevented him from farming said property. In particular, Mr. Klokkenga alleged that in constructing the levee at Point E, the Carolans caused Tract A to be flooded by obstructing "the natural flow of water" from north to south through what Klokkenga characterized as a "natural waterway,"⁶ resulting in the artificial impoundment and collection of surface water on Tract A. Mr. Klokkenga requested an award of money damages to compensate him for the loss of his crops and the use of Tract A for farming operations, as well as an order requiring the Carolans "to remove the levee obstructing the waterway at point `E'" and "to allow the construction of the ditch...