Kueffer v. Brown

• Decision Date: 24 May 1994
• Docket Number: No. 63809,63809
• Citation: 879 S.W.2d 658
• Parties: John KUEFFER and Mary Kueffer, Plaintiffs/Appellants, v. Michael BROWN and Glenna Brown, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 658

879 S.W.2d 658

John KUEFFER and Mary Kueffer, Plaintiffs/Appellants, v. Michael BROWN and Glenna Brown, Defendants/Respondents.

No. 63809.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 24, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 1994.

Application to Transfer Denied Aug. 15, 1994.

Gregory F. Quinn, Quinn, Ground & Banton, Manchester, for appellants.

Ervin D. Lofftus, Lofftus & Dawdy, Fenton, for respondents.

CRANE, Presiding Judge.

This is a surface water case. Plaintiffs John and Mary Kueffer and defendants Michael and Glenna Brown own adjoining three acre residential lots in Jefferson County, Missouri. Plaintiffs are the upper landowners. After plaintiffs filed a trespass action against defendants, defendants counterclaimed, alleging plaintiffs damaged their property by discharging surface water thereon. Following a bench trial, the trial court entered judgment for plaintiffs on their petition and judgment for defendants on their counterclaim and awarded both parties damages. Plaintiffs appeal the $12,000 judgment in favor of defendants on their counterclaim. Defendants have not appealed the judgment in favor of plaintiffs on the petition. We reduce the judgment in favor of defendants to $10,000 and affirm as so modified.

In a court-tried case we sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept all evidence and inferences favorable to the judgment and disregard all contrary inferences. Behen v. Elliott, 791 S.W.2d 475, 476 (Mo.App.1990).

FACTUAL BACKGROUND

Viewed in the light most favorable to the judgment being appealed, the evidence at trial established the following facts. Plaintiffs and defendants purchased their lots from the subdivision developer and built their homes at approximately the same time in 1979-1980. Prior to any development, runoff from the surrounding hillside periodically flowed onto plaintiffs' property into a natural drainage ditch, also referred to as a dry creek bed, running along the south side of plaintiffs' property. The water then flowed into a natural ditch thirty feet wide and six to eight feet deep along the front (east side) of plaintiffs' property. This ditch discharged into a ditch across the front of defendants' property. During heavy rainfall the water also flowed from plaintiffs' south ditch into another natural ditch located at the back (west side) of plaintiffs' property, about 75 feet away from plaintiffs' house. The water from plaintiffs' ditch flowed into a natural swale approximately three feet deep and four feet wide at the rear of defendants' After purchasing the property, plaintiffs decided to fill in their front ditch. In 1983, plaintiffs laid a 210 foot metal culvert, 42 inches in diameter, in the ditch and connected it to a 48 inch metal culvert which the developer had placed under their driveway. They backfilled over the new culvert with 300 truckloads of dirt, filling the entire depth of the original creek bed. Plaintiffs also installed a retaining tie wall on their property, about ten feet from defendants' property line across the front creek bed. The metal culvert protruded through this wall about six inches. After some erosion occurred, plaintiffs built a spillway out of concrete blocks at the end of the pipe. In 1986, plaintiffs built a second and third tie wall which ran from the street to the back of their property, close to defendants' property line.

property. The swale becomes shallower as it crosses defendants' property and comes within 15 feet of defendants' house.

In May, 1987 plaintiffs filed a petition in trespass against defendants for damages. Defendants counterclaimed, alleging that plaintiffs' construction work "caused the diversion of water, soil, and other materials unlawfully onto the property of the Defendants and caused erosion of their property and other damage to vegetation and structures...."

In 1990, plaintiffs' property flooded twice. In response to that flooding, plaintiffs dug out and raised the north bank of the ditch which ran along the south side of their property. This caused water which would ordinarily flow through plaintiffs' front ditch to back up and be diverted to the ditch along the back of plaintiffs' property. After taking these measures, plaintiffs did not experience further flooding to their property. However, after this change was made, defendants' backyard flooded for the first time in 1991, damaging their home. At trial defendants sought damages for the 1991 flooding, and abandoned their claim for damages to the front of their property.

ISSUES

Plaintiffs raise four points on appeal. Two of these points involve surface water law. Plaintiffs contend that the trial court erred by treating the case as a natural watercourse case rather than a surface water case or, alternatively, in misapplying the law relating to surface water. In the remaining two points, plaintiffs challenge the fact and amount of damage.

Neither party requested findings of fact or conclusions of law and none were made. In this situation, we presume all findings of fact were found in accord with the judgment and we uphold the judgment under any reasonable theory presented and supported by the evidence. J. and J. Home Builders, Inc. v. Dobas, 839 S.W.2d 737, 738 (Mo.App.1992). See Rule 73.01(a)(2) (repealed June 1, 1993, new rule 73.01(a)(3)).

I. Surface Water Issues

A. Applicable Law

At the time this case was tried, Missouri followed the "modified common enemy doctrine" with respect to surface water. See Heins Implement v. Hwy. & Transp. Com'n., 859 S.W.2d 681, 686 (Mo. banc 1993). As the doctrine stood at the time of trial, an upper landowner was protected from liability to a lower landowner for obstructing the flow of surface water, provided that:

(1) the discharge flows into a "natural drainway channel" located on his property "where the surface water from the drained areas would naturally go ... even though in doing so they [the upper landowner] might increase and accelerate the flow of surface water in its natural channel onto the lands of the plaintiff," id. [Haferkamp v. City of Rockhill, 316 S.W.2d 620] at 627, [ (Mo.1958),] and (2) the upper owner "acts without negligence and does not exceed the natural capacity of the natural drainway to the damage of the neighbor." (citations omitted).

Hansen v. Gary Naugle Const. Co., 801 S.W.2d 71, 74 (Mo. banc 1990). ¹ However, different rules had evolved with respect to the rights of lower landowners. Further, the existence and extent of other exceptions in which an upper landowner would be liable was unclear.

In 1993 our Missouri Supreme Court replaced the modified common enemy doctrine with the "rule of reasonable use." Heins, 859 S.W.2d at 690-91. In adopting this doctrine the supreme court held that surface water rights and liabilities were not exclusively property law questions, but were also to be analyzed as a form of nuisance. Id. at 689. The law of nuisance acknowledges and accommodates two conflicting rights: 1) the right of a property owner to control and use land for personal benefit and interest, and 2) the right of the public and adjoining land owners to prevent an unreasonable use which substantially impairs their peaceful enjoyment of land. Farmer's Mut. Fire Ins. Co. v. Farmer, 795 S.W.2d 104, 107 (Mo.App.1990). Nuisance is founded "on an unreasonable, unusual or unnatural land use that substantially impairs the right of the owners of the lower tenement to enjoy their property peacefully." Hansen, 801 S.W.2d at 74.

As analyzed under either property law or the law of nuisance, the elements of the rule of reasonable use are:

each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable. Reasonableness is a question of fact, to be determined in each case by weighing the gravity of the harm to the plaintiff against the utility of the defendant's conduct. Liability arises when the defendant's conduct is either (1) intentional and unreasonable; or (2) negligent, reckless, or in the course of an abnormally dangerous activity. (citations omitted).

Heins, 859 S.W.2d at 689-90. Under Heins upper and lower landowners are to be treated alike and all questions of liability for actions taken with regard to surface water are to be analyzed under a reasonableness standard.

Heins was decided after the judgment was entered in the present case. Although we conclude that the rule announced in Heins applies to the disposition of this appeal, ² we must first examine the trial court's judgment under then-existing law to resolve the issues raised relating to the trial court's inferred findings.

B. Natural Watercourse vs. Surface Water

Both parties agree that this case involves surface water. Plaintiffs argue that the trial court erroneously treated this as a natural watercourse case. Plaintiffs base their argument on the rule of law that a landowner cannot obstruct a natural watercourse without liability to others. See Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698, 700 (Mo.1952); Haith v. Atchison County, 793 S.W.2d 151, 155-56 (Mo.App.1990). Plaintiffs reason that, because the trial court imposed liability, it must have found the water at issue was a natural watercourse and such a finding was not supported by the evidence. We disagree. Liability could also have been imposed under the modified common enemy doctrine if the trial court found that the discharge did not flow into a natural drainway or that the discharge exceeded the natural capacity of the natural drainway. Hansen, 801 S.W.2d at 74. Accordingly, the finding of...