McGhay v. Woolston

• Decision Date: 05 January 1914
• Parties: H. H. McGHAY, Respondent, v. GEORGE A. WOOLSTON et al., Appellants
• Court: Kansas Court of Appeals

162 S.W. 292

175 Mo.App. 327

H. H. McGHAY, Respondent, v. GEORGE A. WOOLSTON et al., Appellants

Court of Appeals of Missouri, Kansas City

January 5, 1914

Appeal from Platte Circuit Court.--Hon. A. D. Burns, Judge.

AFFIRMED.

Judgment affirmed.

Jas. A Hull and Jas. W. Boyd for appellants.

Wilson & Wilson, Guy B. Park and A. D. Gresham for respondent.

OPINION

ELLISON, P. J.

Plaintiff's action was instituted to recover damages for destruction of his matured corn crop in 1911 alleged to have been caused by defendants building a dam across a watercourse known as Sugar Creek and diverting the flow of water onto plaintiff's land situated south of the point of obstruction. The judgment in the trial court was for the plaintiff.

There was evidence to show that plaintiff's land was south of different tracts of land owned by each of the defendants. We will designate these lands as defendants' without distinguishing between them. There was also evidence to show that defendants built a dam across Sugar Creek, a stream running through their lands, but not plaintiff's. In connection with this, defendants extended a levee to protect their lands from the overflow of water and also dug a ditch near and along this levee, the effect of which was to turn the water from its natural southwest course to Little Sugar Lake to plaintiff's land below, and destroy his crop. There was evidence to show (and it was an admitted fact) that plaintiff had built a levee on the north side of his land for the purpose of keeping the water diverted out of Sugar Creek by defendants from running directly upon him, though in this he did not succeed. Plaintiff was induced to build this as a means of protection from natural overflow water which sometimes came upon him in wet seasons, and also from the fact that he had heard of defendants intentions to turn the stream.

There was evidence to show that defendants first built the levee now in question across a portion of their land down to the north side of the creek, and then crossed over and extended it south quite a distance from the south bank, thus leaving the creek open between the two ends of the levee. They then dug a ditch six feet wide and three feet deep a little east of that part of the levee which was south of the creek. Then on the night of November 19, 1910, they constructed a dam across the creek by placing a large log across from bank to bank as a brace to boards, straw and dirt which they put in. At this time the creek was running a stream three feet deep and of varying width which was thus turned into the ditch and started on its course towards and upon plaintiff's land.

It appears that northwesterly of these lands is Big Sugar Lake and southeast of them is Bean Lake and that Sugar Creek flows from a northeasterly course through defendants' lands and thence in a southwesterly course into Little Sugar Lake and that that had been its course for several years prior to the time defendants constructed the dam that we have described. It is contended that formerly Sugar Creek did not empty into Little Sugar Lake, but its course, as offered to be shown by witnesses and its old bed, was from Big Sugar Lake on the northwest to Bean Lake on the southeast. From these and other considerations defendants insist that they did not commit a wrong in obstructing the water at the place and in the manner above shown. They undertook to file an amended answer (to which we shall presently refer) setting up, in detail, this fact and further that in 1907, an extraordinary rainfall had caused the creek to overflow its old channel, break through a levee then maintained and flow through their premises, and finally result in the channel of the creek being changed to a course through their land to Little Sugar Lake, where it seems it continued until they put in the obstruction of which plaintiff complains. That where this overflow occurred they immediately began to reconstruct the levee but were enjoined by a temporary injunction granted by the probate court. That thereafter for their own protection, they constructed the levee, dug the ditch, and dammed the stream which resulted in the injury to plaintiff.

Counsel ask, if a man awakens some morning to find a levee broken which has protected his lands from the overflow of a stream shall he not have a right to set to and restore it? And that if wrongfully...