Place v. Union Tp.

• Decision Date: 18 December 1933
• Docket Number: No. 5000.,5000.
• Citation: 66 S.W.2d 584
• Parties: PLACE et al. v. UNION TP. et al.
• Court: Missouri Court of Appeals

66 S.W.2d 584

PLACE et al. v. UNION TP. et al.

No. 5000.

Springfield Court of Appeals. Missouri.

December 18, 1933.

Rehearing Denied January 10, 1934.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

"Not to be published in State Reports."

Suit by S. D. Place and another against Union Township, Dunklin County, and others. From a decree in favor of the plaintiffs granting an injunction, the defendants appeal.

Affirmed.

Oscar V. Seed, of St. Louis, and John H. Bradley, of Kennett, for appellants.

O. Zimmerman and Hal H. McHaney, both of Kennett, for respondents.

BAILEY, Judge.

Plaintiff landowners of Dunklin county seek to compel defendant road district by mandatory injunction to maintain dams across certain road ditches along the sides of a public road abutting their respective farms. The bill in equity was filed in the circuit court of Dunklin county on the 24th of August, 1929, and has been in court since that time. The trial court rendered its decree granting the injunction, and it is here on appeal by defendants.

The petition alleges that plaintiffs are the owners of certain lands in sections 20 and 21 of township 21 north, range 9 east, in Dunklin county, which said lands abut on a public road in Union township, which said road runs north and south on the section line between said sections 20 and 21, that Union township is a municipality of Dunklin county, and that the other defendants are the officers, agents, and servants of said township. The petition prays, as heretofore indicated, that the defendants be compelled by mandatory injunction to replace and construct certain dams and fills across the road ditches, in the petition described, and that they be perpetually restrained and enjoined from entering upon said highway for the purpose of destroying said dams or fills or from doing any other act which will divert water from natural channels upon the lands owned by plaintiffs.

Defendants filed an answer denying all the allegations of plaintiffs' petition and setting up that the acts complained of were lawful and necessary to protect the township road and make it passable for the citizens of the township, and especially passable for the delivery of mail to plaintiffs and other citizens. Defendants further prayed, by way of cross-bill, that plaintiff be enjoined from keeping or maintaining said dams along and upon said public highway and that the court order plaintiffs to remove the dams placed upon and in said highway by them.

The public road referred to in the pleadings runs north and south on the line between sections 20 and 21 and other sections to the north and south in said township and range. This road was laid out approximately twenty-one years prior to the trial of this case in circuit court, and has been used and maintained as a public road since that date. This road, at the points in controversy here, traverses a flat, low country, the chief problem of which would seem to be to take care of the drainage, not only of the natural streams and sloughs, but the surface waters. Approximately two miles west of the said highway flows the St. Francis river, a large stream and the principal drainage of that particular portion of the country. The St. Francis river is subject to overflow during the rainy seasons, and consequently large dikes or levees have been built to keep that stream within due bounds. To the east of St. Francis river and about a mile and one-half west of the highway in question has been constructed what is called levee No. 7. At a point several miles northwest of plaintiffs' lands this levee crosses what is termed Mills slough, and farther south also crosses Taylor slough, both of which sloughs figure prominently in this controversy. One of the questions in the case is in regard to whether or not these two sloughs originally had their source in St. Francis river, which will be hereinafter considered. The levee now prevents any connection between the river and either of these sloughs, except during extremely high water. Both of these sloughs run east and west and cross the highway in question. Between Mills slough on the north and Taylor slough on the south are two other sloughs, called Groff slough and Place slough, respectively, both of which also cross the highway. All of the sloughs run from the west in a northeasterly direction, and are separated by what is referred to in the record as "sand ridges." These so-called ridges are little more than swells in the ground surface, but sufficient to separate the different sloughs here involved, except in the event of a general flood condition. At the time the highway between sections 20 and 21 was built, the township caused ditches to be plowed or dug on either side of the highway for drainage purposes. When this was done it resulted in making a connection between the various sloughs by taking away the natural barriers between the same. This carried the water from Mills slough and Groff slough south in said road ditches to Place slough, a prong of Taylor slough, and caused a part of plaintiffs' lands to be subject to overflow. Thereafter, in 1919, plaintiffs Place and Garrison went before the township board and got permission to place dams across the ditches in order to protect their lands from overflow. At that time the court made an order as follows:

"Union Township Board met at a Call Meeting October 25, 1919, with D. A. Snider and Robert Stephens present. The Board decided to have a ditch dug beginning at the Northwest Corner of the Bob Garrison land and running due North one-half (1/2) mile on the East side of the public road, emptying into the Lowe ditch leading into No. 10 ditch. After said ditch is completed, then a fill be made on the ridge beginning at the Northwest corner of the Garrison land and running South that connects the two sloughs, the fill to be just level as it was before it was ever ditched, the ditch to be dug by Bob Garrison and Steve Place. The Board also ordered Steve Place to make a fill in Road Ditch just below the slough at a point where the ditch cuts through a sand ridge between the Garrison and Groff land."

After this ditch, stipulated in the order, was built, the dams were put in. Thereupon one Walker, who owned land to the east of the public road and north of plaintiffs' lands, built a levee along his land to protect the same from the diversion of the water by this new ditch. Thus conditions remained until the township board, in 1929, cleaned out the road ditches and tore out the dams placed in said ditches by plaintiffs. The result of this act was to permit the waters from Mills slough, as well as Groff slough, to again pass the natural barriers and flow, by way of said road ditches, into Mills slough, and overflow plaintiffs' lands as before. Thereupon this injunction suit was filed.

The trial court, after finding by its decree that plaintiffs were the owners of the land adjoining the highway in question, further found and decreed as follows:

"That the defendants have unlawfully constructed ditches along the sides of said road and upon the road right of way of same in that said road ditches are constructed so that water on lands to the north of lands owned by plaintiffs is collected into said road ditches and is carried by said ditches down to and upon the lands owned by the plaintiffs; that said water is thereby diverted from its natural drains, draws and outlets confined into said artificial ditches and carried to and upon property of plaintiffs, where said water otherwise would not go; all to the irreparable injury of plaintiffs; that plaintiffs have not been compensated in damages by the defendants for the injuries suffered nor have said damages been ascertained as provided by law.

"The Court doth further find that said water is so diverted out of Mills slough; that Mills slough is a natural water course and is carried by said ditches across natural barriers to Place slough where it is permitted to spread out and upon plaintiffs' land subjecting it to great and irreparable damage; that Place slough is not a sufficient outlet to care for the additional water conveyed to it by reason of said road ditches.

"The court doth further find that on the 25th day of October, 1919, dams were ordered constructed by the Township Board of Union Township across ditches then existing along the above mentioned road at a point approximately 25 feet north of Groff slough, and at a point approximately 25 feet south of Groff slough; that said dams were constructed to the level of the ground surface at said points and were intended to preserve the natural drainage conditions which existed prior to the construction of the ditches; that shortly prior to the institution of this suit the defendants dug out and destroyed said dams and enlarged and recleaned said ditches causing the water to be collected therein and pass from Mills slough to Place slough mentioned above and to plaintiffs' damage mentioned above." (Then follows a decree granting a permanent mandatory injunction against defendants.)

It is first urged that the trial court erred in applying the civil law to the facts in this case, which, as stated by defendants, is to the effect that surface water cannot be interfered with, but must be left to take its natural course, instead of applying the common law adhered to in Missouri, which is that surface water is a common enemy which every landowner may resist, and that an owner is not liable for injury caused by diverting surface water incidental to the improvement of his land, provided he does not proceed negligently. Since the case of Abbott v. Kansas City, St. J. & C. B. R. Co., 83 Mo. 271, 53 Am. Rep. 581, overruling McCormick v. K. C., St. J. & C. B. R. Co., 70 Mo. 359, 35 Am. Rep. 431, and Shane v. Railroad Co., 71 Mo. 237, 36 Am. Rep. 480, which cases, particularly the Abbott Case, applied the rule of the civil law as to surface water, there has never been any doubt that...