Pechacek v. Hightower, 35548
| Decision Date | 19 January 1954 |
| Docket Number | No. 35548,35548 |
| Parties | PECHACEK v. HIGHTOWER et ux. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where instructions fail to present the theory of a party on which the case was tried and on which evidence was introduced, which theory goes to the right to recover, such failure constitutes fundamental and prejudicial error.
2. A riparian owner upon a stream may construct necessary embankments, dikes, or other structures to maintain his bank of the stream in its original place or condition or to restore it to its natural course when it has encroached upon his land without liability to other riparian owners for any injury caused by such maintenance or restoration.
Goode, Goode & Henson, Shawnee, Bohanon & Adams, Oklahoma City, for plaintiff in error.
F. H. Reily, Joe H. Reily, Shawnee, for defendants in error.
Plaintiff Libbie Pechacek brought this action in the District Court of Pottawatomie County upon two causes of action, the first asking for a mandatory injunction requiring defendants J. H. Hightower and Mrs. J. H. Hightower to remove a levee built by them adjacent to Shan Creek and the second seeking damages caused by the diversion of flood waters by said levee upon the lands of plaintiff. Defendants filed answer and cross petition consisting of a general denial and allegations that any damage sustained by plaintiff was caused by her wrongful and tortious construction of a levee upon her lands which threw flood waters upon defendants' lands, compelling defendants in self-defense to erect the levee upon their lands complained of by plaintiff alleging damages sustained to defendants' land caused by plaintiff's levee, and asking for judgment against plaintiff for such alleged damages and for a mandatory injunction requiring plaintiff to remove her levee.
Plaintiff's evidence reasonably tends to show that plaintiff owned 40 acres in Section 16 north of a section line road running between Sections 16 and 21, Pottawatomie County, and 80 acres in Section 21 south of said road; defendants own 40 acres in Section 21 south of said road and adjoining plaintiff's 80 acres on the east; Shan Creek runs in a generally north-south direction along the eastern boundary of plaintiff's 40 acres in Section 16, thence across said road and between plaintiff's 80 acres and defendants' 40 acres in Section 21; in times of flood Shan Creek overflowed both its east and west banks; the overflow water on the east side ran in a well defined course from plaintiff's land down onto defendant's land, which was lower than plaintiff's land, while the overflow waters on the west side ran across plaintiff's 40 acres to the north of the road, down onto her 80 acres south of the road; prior to 1943 the western bank of the creek on plaintiff's north 40 acres in Section 16 had eroded and the breaches had been filled with brush and posts; early in 1943 plaintiff hired a bulldozer to reconstruct the breaches in the west bank of the creek and it was filled in at approximately the level of the normal creek bank before it eroded; late in 1943 defendants purchased the 40 acres south of plaintiff's 40 acres and just east of her 80 acres; in about March, 1944, defendants constructed a levee about 5 feet high, running east and west, across the entire north boundary of his 40 acres and up to the edge of the creek bank, and sometime later continued the levee to the sough on the eastern bank of the creek so that his 40 acres was enclosed by a continuous levee on two sides; the next day after defendants constructed their east-west levee plaintiff had the fill on her 40 acres in Section 16 north of defendants' land raised about a foot or so and extended to the north to a hill; that in June, 1948, there occurred the first damaging flood since the construction of the levees or fills of plaintiff and defendants; that defendants' levee blocked all the flood waters which normally ran over the eastern bank of the creek and down onto defendants' land, diverting all the flood waters to the west and causing plaintiff's north 40 acres to take a greater volume of the flood waters than it had ever done before and diverting all the flood waters away from defendants' 40 acres and onto plaintiff's 80 acres in Section 21; that these flood waters caused the top soil to wash away, created ditches and washes in the land, and made sand dunes on the land; that prior to the flood damage in 1948 plaintiff's land was worth $26,000 and after the flood damage it was worth $12,000.
Defendants' evidence reasonably tends to show that the normal course of the flood waters of Shan Creek...
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