Mehornay v. Foster

• Decision Date: 25 May 1908
• Citation: 132 Mo. App. 229,111 S.W. 882
• Parties: MEHORNAY v. FOSTER.
• Court: Missouri Court of Appeals

111 S.W. 882

132 Mo. App. 229

MEHORNAY v. FOSTER.

Kansas City Court of Appeals. Missouri.

May 25, 1908.

Rehearing Denied June 29, 1908.

1. WATERS AND WATER COURSES — SURFACE WATERS—DRAINAGE—IMPROVEMENT OF LOT.

The owner of a lot may grade or fill it in as he sees fit, and it is immaterial that the effect of such improvement is to change the flow of the surface water and divert it to an adjoining lot, but he may not allow the water to collect on his own premises, and discharge it at one point in a volume on adjoining land.

2. SAME.

Plaintiff's and defendant's lots adjoined, with a ditch about three feet wide and two feet deep running on the dividing line, through which surface water from other lands flowed. Defendant filled in his own lot, so that the earth extended into the ditch and obstructed it, preventing the surface water from flowing through the ditch, thereby diverting it upon plaintiff's lot, to her damage. Held, that defendant had a right to fill in his own lot, even if it diverted the waters upon plaintiff's lot, and, while he had no right to let the earth escape onto plaintiff's lot, and would be liable for damages sustained thereby, he incurred no liability for diverting the waters to plaintiff's lot.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Mary J. Mehornay against H. C. Foster. From a judgment for plaintiff on a directed verdict, defendant appeals. Reversed.

Marley & Swearingen, for appellant. Lawrence & Lawrence, for appellee.

BROADDUS, P. J.

This is a suit to recover damages for the alleged wrongful act of defendant in causing surface water and débris to overflow plaintiff's property. The plaintiff is the owner of a part of lot 26 in Highbury Park, Kansas City, which fronts east on Myrtle avenue. The defendant is the owner of lot 25, in said block, which fronts west on Mersington avenue. A line running north and south divides the property of the respective parties; there being no alley between them. Prior to the controversy there was a ditch about three feet wide and two feet in depth near the said dividing line leading north from Twenty-Seventh street, which was situated south of the south line of said lots. The natural slope of the ground is to the south and southeast.

In the spring and summer of 1905 the defendant filled in the back of his lot close up to the dividing line with earth, to the depth of several feet. The ditch in question, being on the dividing line between the properties of the respective pa...