M.H. Siegfried Real Estate v. City of Independence

• Decision Date: 26 April 1983
• Docket Number: No. 64470,64470
• Citation: 649 S.W.2d 893
• Parties: M.H. SIEGFRIED REAL ESTATE, Appellant, v. CITY OF INDEPENDENCE, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 893

649 S.W.2d 893

M.H. SIEGFRIED REAL ESTATE, Appellant, v. CITY OF INDEPENDENCE, Missouri, Respondent.

No. 64470.

Supreme Court of Missouri,

En Banc.

April 26, 1983.

Rehearing Denied May 31, 1983.

Steven M. Gray, Independence, for appellant.

Joe F. Willerth, Asst. City Atty., Independence, for respondent.

BLACKMAR, Judge.

This action involves the accumulation of surface water on land owned by the plaintiff corporation at the northeast corner of Truman Road, running east and west, and Turner Street, running north and south, in the City of Independence. The record contains only the testimony of Cedric Siegfried, a lawyer and president of the plaintiff corporation, and exhibits authenticated by him. Since the trial court sustained the defendant's motion to dismiss at the close of the plaintiff's case, we state the facts on the basis that the plaintiff's evidence is true.

The evidence does not show exactly when the plaintiff acquired the land in question, but the estimate is that it was purchased in parcels between 15 and 25 years ago. The streets were in place when the plaintiff became the owner. The evidence does not show when the streets were built, or whether they were built by the city, the county, the state, or a developer.

Siegfried became the chief executive officer of the plaintiff, a family corporation, about three years prior to the March, 1981 trial. He had not been active in the corporation in an executive capacity before then but had done legal work for it. He remembered that the grade of Truman Road was raised about 2 inches in 1967 or 1968 by blacktopping, and perhaps the grade of Turner Street was raised at the same time, but these operations did not contribute materially to the drainage problem inasmuch as the grade of the streets was already above lot level. The plaintiff's land is at the bottom of a steep slope and receives drainage from other land to the north. Turner Street, to the west, is about 11 to 15 inches above the level of plaintiff's lot and Truman Road, on the south, is 10 to 18 inches above the lot level. On four occasions during the past three years Siegfried saw water standing on the plaintiffs' land after heavy rains, and he entered into correspondence with the defendant city about possibilities for drainage. He was of the opinion that culverts under Turner Street, Truman Road, or Elizabeth Street, which is to the east and about 250 feet from the east boundary of plaintiff's tract, would suffice to carry most of the water off of the tract and into natural drainage channels.

The plaintiff undertook the construction of some houses on the tract in 1980, and claims that these are worth substantially less than they would have been if the drainage had been adequate. There was also expense in hauling in dirt to raise the foundation levels of the houses.

The amended petition complained of the interruption of natural drainage by the "improper and negligent construction and maintenance" of the streets, and sought injunction against continued interruption, a mandatory order for the installation of drainage expedients, and damages. The answer consisted of a general denial together with pleas of the statute of limitations, without specifying any statutory sections, and of laches.

The plaintiff rested its case after Siegfried testified. The trial court sustained the defendant's motion for judgment of dismissal pursuant to Supreme Court Rule 67.02 on the grounds, first, that the statute of limitations had run on a legal claim, thereby imposing the equitable bar of laches, and, second, that the record did not show that the defendant city was the agency responsible for the construction and maintenance of the streets. The plaintiffs appealed, claiming that the land flooded only occasionally, and that the statute of limitations therefore began anew as to each incident of flooding. See Spain v. City of Cape Girardeau, 484 S.W.2d 498, 503 (Mo.App.1972).

The Court of Appeals agreed with the plaintiff. It characterized the claim as one for "temporary nuisance," which could be corrected with reasonable effort, and so held that each new manifestation of damage gave rise to a new claim. The court therefore remanded the case with directions to enter judgment for the plaintiff as to liability and to hear evidence as to damage.

The defendant moved for rehearing, arguing that under Supreme Court Rule 67.02 it did not waive its right to introduce evidence by moving for dismissal at the close of the plaintiff's case. The court overruled the motion, holding that the defendant, by so moving, consented to the submission of the case on the plaintiff's evidence. It cited Shepard v. Shepard, 353 Mo. 1057, 186 S.W.2d 472, 477 (Mo.1945) and Gates Rubber Co. v. Williford, 530 S.W.2d 11, 15 (Mo.App.1975), but then transferred the case to this Court on its own motion because of the importance of the procedural question of the continued authority of the cases cited in view of Rule 67.02.

Most of the argument before us dealt with this procedural question. We nevertheless stand fully possessed of the case as though the original appeal had come here. We conclude, contrary to the Court of Appeals, that the trial court reached the correct result under the pleadings and evidence and therefore affirm the judgment. This makes it unnecessary to rule on the interesting and important procedural issue. Because of the importance of the point and the publicity it has received, ¹ however, we believe that two comments are in order, as follows: (1) Rule 67.02 clearly states that the filing of a motion to dismiss at the close of the plaintiff's case "does not constitute a waiver of the defendant's right to offer evidence," so that any case suggesting the contrary would seem to be ill-considered, and (2) trial judges should be very hesitant in sustaining such motions, and should consider the manifest advantage of hearing all evidence that any party wants to offer, so that a complete record may be assembled and further trial proceedings avoided in the event of reversal.

With these observations we turn to the merits. We conclude that the plaintiff's evidence does not demonstrate any act or omission on the defendant's part such as to give rise to legal liability. We do not need to go into the issues of statute of limitations and ownership of streets, which were the bases for the trial court's decision. We of course will affirm the judgment if we conclude that it is correct, even though our reasons are not the same as those which seemed persuasive to the court below.

The evidence shows, essentially, that someone built streets many years ago, long before the plaintiff corporation acquired its property. Siegfried testified that good engineering practice required that the streets be raised above the level of the adjoining lots; otherwise streets would wash away. The streets have kept surface water from running off of the land, especially when the level of rainfall is high. There is no claim of interruption of a natural watercourse, and so the case of Hewitt v. Chicago, Burlington and Quincy Railroad, 426 S.W.2d 27 (Mo.1968), which is the only case cited by the plaintiff in support of its substantive claim, is not in point. ² We have, indeed, had minimal assistance from counsel in the substantive aspects of the problem before us. There is absolutely no evidence that the city or any other agency caused water other than that which would have flowed naturally from the land above to accumulate on the plaintiff's land. The complaint rather, is that whosoever had control of the lower land built that land up in the construction of streets so as to hold up water which otherwise would have flowed off of the land and that the city, in maintaining the streets, has failed to correct this situation.

The subject of surface water has concerned our Court for decades. In Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983), we related some of the history, which need not be repeated. That case involved the rights of a lower owner with respect to an upper owner. This case involves the other side of the coin. Whoever built the streets was in the position of a lower owner. The sole complaint is that the streets keep water on the plaintiff's land which otherwise would have had an outlet. The plaintiff had the full opportunity to present evidence such as it deemed necessary, and there is no suggestion that it could establish any additional facts which would be helpful.

Our analysis starts with the seminal case of Abbott v. Kansas City, St.J. & C.B. Railroad Company, 83 Mo. 271, 289 (1884), in which the claim in the portion of the case here pertinent was that the plaintiff had had a verdict founded in part on an instruction reading as follows:

That it was the duty of the defendant company to so construct its line of tracks as would permit the usual flow of the water, and that where, owing to embankments being constructed to dam up or stop such flow, and it fails to construct aad [sic] keep in good order the necessary culverts or other waterways as will pass through and carry off such water, it is liable to damages to all parties injured.

The court held that the instruction did not correctly state the law. It was apparently based on the decision in Shane v. Kansas City, St.J. & C.B. Railroad Company, 71 Mo. 237 (1879), a suit against a railroad which had built an embankment which diverted surface water onto the plaintiff's land. The Shane court purported to adopt the "civil law" view of surface water, under which a lower, or servient, owner has a duty to receive the surface water which naturally flows from the land of upper, or dominant, owners. The Abbott opinion completely rejected the civil law position, ³ in favor of what the court deemed to be the "common law" rule, which is often described as the "common enemy" doctrine. The instruction then was held to be erroneous. ⁴

We have been unable to find a case since Abbott which has imposed...