Kuhlman v. Stewart

• Decision Date: 10 April 1920
• Docket Number: No. 20827.,20827.
• Parties: KUHLMAN v. STEWART
• Court: Missouri Supreme Court

221 S.W. 31

282 Mo. 108

KUHLMAN v. STEWART

No. 20827.

Supreme Court of Missouri, Division No. 1.

April 10, 1920.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by William Kuhlman against James L. Stewart. Judgment for plaintiff. From an order granting the motion of defendant for a new trial, plaintiff appeals. Affirmed.

John D. Taylor, of Keytesville, for appellant.

J. A. Collet, of Salisbury, for respondent.

GRAVES, J.

Plaintiff (appellant) and defendant (respondent) are adjoining landowners in Chariton county. Plaintiff had owned his land for many years, whilst defendant had owned his for some year or more. Plaintiff claims (by his petition) that by agreement with defendant's predecessors in title there was constructed by the two owners a joint ditch and waterway, the purpose of which was to carry off the surface water, which, after heavy rains, accumulated upon their lands; that such ditch or waterway was constructed at the joint expense of the two adjoining landowners; that a part of such ditch or waterway ran across the lands of defendant, but carried the surface water from plaintiff's land as well as that of defendant ; that defendant put a dam across said ditch or waterway (upon defendant's land), so that the surface water was left to accumulate and stand upon the lands of the plaintiff; that this ditch or waterway had been continuously so used from 1906 to date of its obstruction by defendant in 1916; that plaintiff owned the west half of the south half of section 14, and the defendant the east half of the same. The prayer of petition thus concludes:

"Wherefore, the premises considered, complainant prays that by order and judgment of this court defendant be directed and required to forthwith remove the dam or levee from the said ditch, and to remove the earth and obstruction thrown into said ditch aforesaid, and restore the same to its former state of usefulness, and that by the order and judgment of this court, he be forever restrained and prohibited from closing, obstructing, and destroying the said ditch, or impairing its utility, and for such other relief in law and equity as may be just and proper."

Upon trial in the circuit court there was a finding and judgment for the plaintiff, by the force of which an easement for the passage of this surface `water over the land of defendant was declared. Later, upon motion of defendant, this judgment was set aside, and a new trial granted. From the order granting a new trial the plaintiff appealed to the Kansas City Court of Appeals, which court has transferred the case here as one involving title to real estate. It should also be added that the judgment granted a mandatory injunction, requiring the defendant to remove his dam across the ditch, and that he was enjoined from further interrupting the flow of the surface water through such ditch. This is not the language, but the substance, of the judgment, which plaintiff seeks by this appeal to have reinstated, without further trial. Pertinent portion of the evidence will be left to the opinion.

I. Going to the evidence in the case, we find reference to several ditches, all of which are shown upon the attached plat, which we have reduced in size, from the one used in evidence:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

To get the pertinent facts plainly in the mind reference to this plat is necessary. The land north of the Wabash Railroad, as shown on the plat, is broken and hilly. The lands of plaintiff and defendants were low and level, and upon them would accumulate the waters coming from the hills to the north. In the southwest corner of Stewart's land was a slight elevation. On Kuhlman's land there was what is called a "swale" or a depression in the land (lower than that upon either side), but with no well-defined banks. This swale extended from Kuhlman's land into Stewart's land, and would be to the north and east of this slight elevation in the southwest corner of Stewart's land. This swale was along what is marked in the plat as the `Kuhlman-Price Ditch." It was not the full length of this marked ditch, but ran up some distance in Kuhlman's land, and into the southwest corner of Stewart's land. In this Swale or depressed land water would accumulate and stand, unless given outlet to or across the public road. So there is testimony bearing upon this particular ditch.

Afterward there was constructed a ditch marked "County Drainage Ditch." Next in order of time came the "Kuhlman-Kayser Ditch," which began a few feet south of the 'County Drainage Ditch," and connected with the old "Kuhlman-Price Ditch." Next in order of time is the "New Stewart Ditch," which defendant constructed upon his own land shortly before this lawsuit began. This ditch runs from the little highland in the southwest corner of Stewart's land to the "County Drainage Ditch" to the north, and at the point where it crosses what is marked as the "Kuhlman-Price Ditch" is where the dam of that ditch occurred of which complaint is made in the petition. From this it will be seen that the dam would cause surface water to remain in this swale upon plaintiff's land, and perhaps to keep it backed up there more than before the construction of the dam. This dam is but a part of the construction of the Stewart ditch, and is upon the Stewart land. With this general outline of the situation, we can more intelligently take up the other facts, and apply the law thereto.

II. The petition charges that more than 20 years prior to the suit the two tracts of land were respectively owned by Caroline Kuhlman and the heirs of J. W. Price. Caroline Kuhlman owned the land now owned by the plaintiff, and the Price heirs the land now owned by defendant. Such petition further charges that there was an agreement between Caroline Kuhlman and the Price heirs to construct, through this swale, as a part of the ditch, what is...