Looney v. Hindman

• Citation: 649 S.W.2d 207
• Decision Date: 29 March 1983
• Docket Number: No. 64078,64078
• Parties: David F. LOONEY and Mildred D. Looney, his wife, Plaintiffs-Appellants, v. James C. HINDMAN and Betty M. Hindman, his wife, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 207

649 S.W.2d 207

David F. LOONEY and Mildred D. Looney, his wife, Plaintiffs-Appellants, v. James C. HINDMAN and Betty M. Hindman, his wife,

Defendants-Respondents.

No. 64078.

Supreme Court of Missouri,

En Banc.

March 29, 1983.

As Modified on Denial of Rehearing

April 26, 1983.

Ernest L. Keathley, Jr., St. Louis, for plaintiffs-appellants.

Stephen M. Glassman, William B. England, St. Louis, for defendants-respondents.

BLACKMAR, Judge.

The plaintiffs own a home in Bridgeton, St. Louis County. The defendants' home adjoins the plaintiffs' on the south. A fence along the south border of the plaintiffs' property separates it from the defendants', and a fence along the west border separates it from that of another neighbor, the Zimmers. The natural drainage in the area is from south to north and from west to east.

When the plaintiffs moved into their house in 1974 they hired a house mover to transport their 20 foot by 40 foot continuous pour steel reinforced concrete swimming pool to their new home, where it was installed in the back yard about three feet from the south fence. The pool rested on a concrete base and a sand and dirt bed and had a three foot walkway, or deck, around the edges.

During March and April of 1975 the defendants dug a 20 foot by 20 foot garden in their back yard, extending to the fence separating their property from the plaintiffs'. About March 14, 1977, defendant James Hindman roto-tilled the garden, and about March 23, manure was mixed into the soil of the garden. The evidence is not wholly in agreement as to just how close to the fence the garden was tilled, but the distance was no more than a few inches.

Some time in March of 1977 the plaintiffs emptied the pool for cleaning and painting, as they had done in past years without incident. Rains to a total of 3.25 inches fell during the night of March 27-28. The following morning the pool was seen to have risen three feet out of the ground, and the concrete deck around its edge was hanging off at a 30? angle. The pool was subsequently restored to approximately its former level, but only with great difficulty and expense. The rise of the pool out of the ground is the basis for the first claim which the plaintiffs submitted to the jury. (Count V of the petition).

Plaintiffs based this claim on the theory that the defendants rendered the garden area substantially more capable of absorbing water, by reason of the cultivation and manuring of the soil, so that it collected surface water, and, after the soil was saturated, discharged the water in increased quantities and with destructive force at a point onto plaintiffs' property underneath the base of the pool, causing the pool to "float." Plaintiff David Looney testified that, in attempting to find the source of the problem, he had observed water standing in the garden and found a hole, or channel, eight inches wide, leading from the defendants' garden to plaintiffs' pool. He also observed water running from the garden through this hole toward his pool. Plaintiffs produced an expert who corroborated these observations, and further postulated that the hole directed water that had collected in the garden toward plaintiffs' pool, with sufficient force to float the pool out of the ground.

Count VI, submitted to the jury, involved the rise of the pool in 1979. In 1977, some time after the pool had first risen, the defendants placed a border of railroad ties around the east, south and west sides of their garden "for decorative purposes." The ties were set in concrete, resting approximately one inch in the ground and two inches in the concrete. They were eight inches in height. Defendant acknowledged that one purpose of the setting in concrete was to divert water away from the garden.

The tie border presented no problem until April of 1979, when the pool was again empty. On April 11, following a heavy rain, the pool once more rose out of the ground. Defendants had not yet roto-tilled their garden for that season. The plaintiffs claim that this 1979 damage resulted when water on the west side of the defendants' garden was dammed by the tie border and forced onto plaintiffs' land. Plaintiffs' expert opined that this installation of ties could have diverted surface water that otherwise would have run off defendants' yard, but which instead would have been redirected toward the back fence and onto plaintiffs' property. The expert also testified The plaintiffs sought to submit their claim for the 1977 damage by a verdict directing instruction reading as follows:

that increased hydrostatic pressure, caused by water running under the pool, forced this 1979 "floating" of the pool.

INSTRUCTION NO. ____

Your verdict must be for Plaintiffs under Count V if you believe:

FIRST: Defendants collected or permitted water to collect on their own premises on or about March 27-28, 1977; and

SECOND: Said collected water was discharged in destructive quantities at one point in a body against Plaintiffs' land; and

THIRD: As a direct result of such collection and discharge of water, Plaintiffs sustained damage.

The court refused this instruction but, on its own initiative, gave an instruction based on MAI 22.06 and reading as follows: (Instruction # 3).

INSTRUCTION NO. 3

Your verdict must be for plaintiffs under Count V if you believe:

FIRST: Plaintiffs owned the property at 11720 Chess Drive, St. Louis County, Missouri, on or about March 27-28, 1977, and

SECOND: The normal flow of surface water was collected and directed or permitted to collect and be directed on defendants' property, by the tilling of their garden in March, 1977, and

THIRD: The defendants permitted the discharge of water onto plaintiffs' property in concentrated and destructive quantities, and

FOURTH: Such use by defendants of their property was unreasonable, and

FIFTH: As a direct result of such conduct of defendants, the plaintiffs sustained damages.

The plaintiffs requested a similar submission for the 1979 damage, which the court also refused, giving again an MAI 22.06 type instruction (Instruction No. 4). The defendants adopted Instructions Nos. 3 and 4 as submitted by the court.

The jury returned a verdict for the defendants on both of the counts submitted. The plaintiffs appealed, claiming, along with other points about instructions and evidence, that Instructions 3 and 4 were prejudicially erroneous in requiring the jury to find as an essential element of the plaintiffs claim that the defendants' use of their property was "unreasonable." They argue that this submission introduces a requirement of negligence which is not necessary in cases involving collection and discharge of surface water.

The Court of Appeals reversed and remanded for a new trial, finding that the verdict directors were prejudicially erroneous in requiring the finding of unreasonable use. The court was of the opinion that a submission of this kind called for a finding of negligence, and therefore imposed on the plaintiffs a burden they did not have to bear under the course of decisions dealing with surface water. The court made it clear that it was not giving its approval to the plaintiffs' requested submission, and did not respond to the other points presented by the appellant, holding that these should await the settlement of instructions on retrial. We transferred the case and consider it as on initial appeal. Having so considered it, we affirm the judgment of the trial court.

Missouri follows the "modified common enemy" concept of surface water. ¹ What is actionable is (1) the collection of surface water into an artificial channel or volume and discharge of it in increased and destructive quantities upon the servient estate to its damage, (2) the draining off of surface waters in such a manner as to exceed the natural capacity of the drainways and (3) the discharging of surface waters onto adjacent lands to which it would not naturally drain.

This doctrine appears to give lower, or servient, owners considerable freedom in blocking the flow of surface water onto their land from upper lands, ² but in certain situations it places substantial restrictions on the rights of the upper owners who seek to cast surface waters onto lower lying properties. Three of the principal situations which might be the occasion for liability are well expressed in Borgmann v. Florissant Development Co., 515 S.W.2d 189, 194-5 (Mo.App.1974), relying on the analysis found in the leading case of Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 624-25 (Mo.1958), in the following language:

The Borgmann court made it clear that it did not purport to catalog all the liabilities of upper owners for discharging surface water onto lower ones, but the plaintiffs assert that their case fits the first category of actionable incidents there described and we analyze it on that basis. The contention is that the defendants collected surface waters, as to the 1977 incident, by cultivating and manuring the garden, and, as to the 1979 one, by laying the tie border so as to cause an accumulation on the west side of the garden. It is then claimed that the waters so collected, in each instance, were discharged in destructive quantities onto the plaintiffs' land.

The defendants at oral argument invited us to hold that the plaintiffs had failed to make a submissible case. They properly moved for a directed verdict at the close of all the evidence, and, in any event, are entitled to advance any argument on appeal which would demonstrate that the judgment in their favor is correct, but they did not favor us with a brief on the issue of submissibility and consequently we will not decide the point. We say frankly, however, that we do not want to be understood as holding that a submissible case was made. The defendants' use of their land for a garden, with the attendant cultivation and fertilization, is a very ordinary kind of use in a suburban area, as is the installation of the tie...