Patten v. Thomas
| Decision Date | 04 December 1922 |
| Citation | 246 S.W. 61,212 Mo.App. 367 |
| Parties | K. M. PATTEN, Respondent, v. CHARLES THOMAS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Henry County.--Hon. C. A. Calvird Judge.
AFFIRMED.
Judgment affirmed.
James A. Parks and John A. Gilbreath for respondent.
W. E Owen for appellant.
This is an action to recover damages for the damming of the head of lateral C where it connects with lateral B, resulting in the overflow of plaintiff's land and the loss of twenty-five acres of corn growing thereon. There was a trial before the court resulting in a judgment in favor of plaintiff in the sum of $ 375 and defendant appealed.
Defendant insists that plaintiff is not entitled to recover under the facts and this necessitates the stating of the evidence in the most favorable light to plaintiff.
During the season of 1919 plaintiff was farming, as tenant of defendant, eighty acres of land lying one-half mile east and west and one-fourth of a mile north and south. The northwest portion, twenty-five acres, was on high land and in wheat, the rest, bottom land, was in corn. The bottom land started at the southwest corner of the eighty acres, extended north a short distance and then circled to the northeast around the high land, running almost to the north side of the eighty at a point just west of the middle of the north line. The low land, consisting of fifty-five acres, was planted in corn. The land was located in the Big Creek Drainage District in Henry County, Missouri, and on the west side of Big Creek, whose course was generally from north to south. The main drainage ditch of the district ran a short distance from and along the east end of the eighty acres. Along the south side of the eighty acres was a lateral to the main ditch called lateral B. This lateral extended west from the southeast corner of the eighty acres one hundred rods where it connected with a ditch made prior to the construction of the lateral in 1911 or 1912. However, the whole of the ditch extending the full length of the south side of the eighty acres was referred to in the evidence as lateral B.
In the plan of reclamation lateral C was laid out to connect and start in lateral B about the center of the south line of the eighty acres, and to extend south about three-fourths of a mile into Brushy, a tributary of Big Creek. Lateral C was not completed until the fall of 1917 when it was cut into lateral B. It was not entirely completed at that time but was sufficient with lateral B to carry off the water falling on the water-shed which they drained without overflowing the eighty acres in question. In the spring of 1919 defendant filled in lateral C where is connected with lateral B, preventing water from flowing into the former.
A short distance west of lateral C a private drain was constructed by a former owner of the ground, running some distance north through the bottom land and was made for the purpose of draining surface water falling upon the eighty acres. This private drain had a valve where it flowed into lateral B to prevent the water from escaping from lateral B on to the land. The low land of the eighty acres was well tiled, the work having been done a few years prior to the overflow complained of. In digging lateral B the waste earth was thrown north and was well scattered so as not to make a very high embankment between the low land and lateral B, but leaving somewhat of a bank. Former tenants made small ditches in two or three places in this bank to drain off the water from the low land.
There is some dispute in the evidence as to the rise of the land commencing with lateral B and going back toward the north. The general slope of the low land was toward the southeast corner of the eighty acres, it having a slight rise to the north. However, there is evidence that there was what was called holes in the low land, the bottom of these places were somewhat below the natural surface of the eighty acres along its south side. There was a general fall of one foot from the north side to the south of the eighty acres in the low land. The lowest place was several feet north of lateral C. There is ample evidence from which the court could find that the twenty-five acres that was overflowed was only a few inches above the level of the natural surface of the south side of the eighty acres.
There was a public road along the north side of the eighty; on the east side of the land there was a levee and a short distance west of the levee and near the east line of the eighty was a ditch which carried off the water coming from the water-shed north and west of the eighty. The road had been graded and ditched in such a manner that water could not flow upon the eighty from the north but went to the head of and into the ditch on the east side of the land and thence into lateral B, about the southeast corner of the eighty.
On the south side of the eighty, beginning about 300 feet east of lateral C, was a levee made by defendant who owned the land south of the eighty. This levee extended east on the south side of said lateral to the end of lateral B and thence southeasterly to Big Creek Drainage Ditch and along it for something like a mile or more. The object of this levee was to keep the overflow from the creek off of the defendant's land south of the eighty. At the time this was built defendant did not own the eighty in question and he and the owner had some words concerning the building of the levee because when Big Creek overflowed the levee would cause the water to back up through lateral B and on to the low land of the eighty acres in question. The differences between them was settled by defendant's consenting to have lateral C into lateral B. The object of lateral C was not only to have the water from Big Creek backing into lateral B to flow off through lateral C so that it would not overflow the low land of the eighty acres in question, but to help lateral B take away water from the area which lateral B drained, which was one hundred and ninety-five acres. Mr. Cunningham, the former owner of the eighty acres, testified that on account of the water backing into lateral B from Big Creek a sediment from the west was caused to flow into lateral B and dirt accumulated in the upper end thereof, and lateral B was not taking all the water that it was supposed to drain but some of it was flowing over the eighty acres and for this reason, as well as on account of the Thomas levee, he asked that lateral C be completed by cutting it into lateral B.
On the 18th day of May, 1919, the corn was just high enough (four or five inches) to plow and plaintiff intended to start plowing it the next day but a hard rain came. When the rain was about over plaintiff went to lateral C and found, beginning fifteen or twenty feet east of lateral C, that there was water pouring over the north side of lateral B for a distance of one hundred feet toward the east. The stream flowing over it was six inches deep and at that time the water in lateral B was six inches from the top of the south bank thereof. This flooded most of the corn land to a depth of four or five inches. However, some of the corn was not entirely covered but in some of the higher places one could "see through." The creek was not overflowing at this time. Some of this water remained upon the land for several days but much of it ran off as the water on lateral B ran out. The next day plaintiff and the ditch commissioner spaded ten or twelve ditches through the embankment on the north side of lateral B, allowing some of the water to flow off of the land, but plaintiff testified that much of the water remained on the land for several days. In order to have drained all of the water it would have been necessary to go back north for quite a distance and use a plow in ditching. Plaintiff testified that he was unable to do this because it was too muddy to drive a team on to the land.
On the night of the 19th and morning of the 20th of May, 1919, plaintiff and the ditch commissioner removed the obstruction at the mouth of lateral C. There were a few bright days following the 18th day of May and plaintiff started to plow the ground that had been first drained off and had about completed plowing the corn in this land (fifteen or twenty acres along the east side of the eighty and the remainder on the west side of the low land) when another heavy rain came about May 28th, stopping the plowing for several days. On account of the wet condition of the remaining unplowed land plaintiff was unable to cultivate it, resulting in it growing up in grass and weeds and the corn turning yellow and becoming valueless. He did cultivate the remaining thirty acres and raised a good crop of corn thereon. However, plaintiff stated that the "ground was always wet" when he plowed the part he saved. The evidence shows that there was much wet weather during the plowing season. Although the rain of the 28th was a heavy one it did not overflow the land. The dam in later C had been removed.
The watershed drained by the ditch along the east side of the eighty was one hundred and seventy acres, and, as we have before stated, that drained by lateral B was one hundred and nine-five acres. Defendant's engineer gave the capacity of the two ditches which would indicate, as defendant contends, that lateral B had five to ten times the capacity as the ditch along the east side and, therefore, defendant urges that a great quantity of water must have overflowed this land from the north. We will hereinafter discuss defendant's contention that no water overflowed from lateral B. The petition alleges that the damage was caused by the stopping up of lateral C. However, all of the evidence does not agree...
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