Rebel v. Big Tarkio Drainage Dist. of Holt City

Decision Date08 July 1980
Docket NumberNo. WD,WD
PartiesDwayne H. REBEL, Appellant, v. BIG TARKIO DRAINAGE DISTRICT OF HOLT CITY, Missouri, Emit Haer, Ivan Ohlensehlen, Bryan H. Hinkle, R. C. "Dick" Yount and Edwin Wright, Supervisors of Said District, Respondents. 30855.
CourtMissouri Court of Appeals

Ronald M. Sokol, Kranitz & Kranitz, St. Joseph, for appellant.

R. A. Brown, Jr., Larry E. Scott, Brown, Douglas & Brown, St. Joseph, Walter L. Mulvania, Rock Port, for respondents.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

SHANGLER, Presiding Judge.

The plaintiff landowner sued the Big Tarkio Drainage District for money damages and injunctive relief. The count for damages alleged that the negligent failure of the District to maintain the ditch levy caused the canal water to flood and erode the land owned by plaintiff. The count for injunction was to compel the District to return the water to the constructed channel and to restore the land to the condition before encroachment. The defendant asserted the bar of limitations to the petition and moved dismissal of the action. The court sustained the motion, and the plaintiff appeals the judgment.

The memorandum of judgment rested decision on the premise that the petition was for a permanent nuisance with all damage fully accrued and so was precluded by the bar of limitations under §§ 516.100 and 516.120, RSMo 1978. That judgment necessarily rejected the pleading as a cause of action for temporary nuisance, abatable and separately accrued by each new incursion.

A motion to dismiss concedes the truth of all facts well pleaded. Higday v. Nickolaus, 469 S.W.2d 859, 864(10) (Mo.App.1971). Where the allegations, taken at broadest intendment, invoke principles for substantive law which entitle the pleader to relief, the petition stands as a valid statement of claim. Pollard v. Swenson, 411 S.W.2d 837, 840(4) (Mo.App.1967). Where the allegations plead alternative relief, the sufficiency of one statement as a valid claim for relief remains unaffected by the insufficiency of the other. White v. Mulvania, 575 S.W.2d 184, 188(5) (Mo.banc 1979).

The petition of the plaintiff Rebel avers: that the defendant, a Drainage District corporation under Chapter 242, RSMo 1978, constructed a levy in year 1935 upon a right of way acquired by deed across described real property owned by the plaintiff. That since year 1967 the defendant District has neglected to maintain the south side of the levy, and that the neglect continues until the present with the result that the waters, otherwise contained by the levy, invade, flood and erode the land of the plaintiff. That the plaintiff complained repeatedly to the defendant of the acts and omissions, but without heed. The plaintiff pleads damages for the erosion of the topsoil, the loss of use of ten acres of the land and other injury done by the invasion of the water and by the formation of an unnatural channel across the land by the diverted water. That the failure to maintain the levy has been intentional and reckless, as well as negligent, as to entitle the plaintiff to punitive damages.

The separate count for injunction pleads that the failure to maintain the levy has resulted in formation of an unnatural channel across the land of the plaintiff whereby acres of topsoil have been lost and the land made useless for crops. That the defendant District owes duty under Chapter 242 to maintain the levy in sound condition, and that the neglect of duty leaves the plaintiff without adequate remedy at law. That count prays the court for mandatory injunction that the defendant District rebuild and repair the levy embankment to return the water to the dedicated channel and that the District restore the land to the condition before the encroachment by the defendant.

The answer denied the allegations of the petition except to admit that the defendant was a Drainage District corporation under the provisions of Chapter 242, and moved the dismissal on the ground that the "claims and causes of action prayed for in plaintiff's petition are barred by the appropriate statute of limitations." (emphasis added) The order of dismissal found, simply: "the petition is barred by the statute of limitations, §§ 516.100 and 516.120." 1 A plea of limitations, however, is an affirmative defense. Rule 55.08. A party who seeks the effect of the statute of limitations must plead the particular provision invoked for the defense. Modine Manufacturing Company v. Carlock, 510 S.W.2d 462, 466(2, 3) (Mo.1974). The requirement follows from the burden the law assigns to a defendant to prove a special affirmative plea. Crain v. Webster Electric Cooperative, 568 S.W.2d 781, 792(12) (Mo.App.1978). The judgment of dismissal, therefore, was not responsive to an issue of pleading, but only gratuitous. We owe no further response to the judgment. We rule, nevertheless, whether limitations bar the petition because on remand the discretion of the trial court may yet allow the defendant to amend the plea, and because the premise of the judgment that, as a matter of law, the damages count of the petition pleads a permanent nuisance to the exclusion of any other remedy is palpably erroneous. 2

A statement of facts (as pleaded by the plaintiff) of flood damage to land from a levy embankment on the land of another asserts alternative causes of action for negligence, trespass, nuisance and where, as here, the offending owner enjoys the power of eminent domain 3 an informal condemnation. Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593, 599(2) (Mo.banc 1974); Corrington v. Kalicak, 319 S.W.2d 888, 892(4-7) (Mo.App.1959); Lewis v. City of Springfield, 142 Mo.App. 84, 125 S.W. 824, 826 (1910). The period of limitations which bars a personal action depends upon when the cause accrues (§ 516.100) and the nature of the action (§§ 516.120 through 516.370). The litigants agree that the allegations of the petition encompass a private nuisance. The defendant District argues that the cause of action describes a permanent nuisance, a direct injury to the land fully accrued, and since barred by the five-year limitations for an action for trespass on real estate (§ 516.120). The plaintiff Rebel contends that the cause of action rests on negligence and describes a temporary nuisance, so that each recurrent injury creates a successive cause of action recoverable within the period of limitations after each accrual. The litigants do not contend over the statute of limitations for a private nuisance. They accede that § 516.120 for trespass to real estate governs. The distinctive affinity of nuisance with trespass as forms of action and the versatility of nuisance as a cumulative remedy, nevertheless, bear on the accrual of damage from nuisance (and hence the question of limitations) and the sufficiency of the petition as an alternative pleading for trespass and negligence as well as nuisance.

An action for private nuisance rests on tort liability. Merrill v. City of St. Louis, 83 Mo. 244, 255 (1884); Restatement of Torts § 822 (1939). The gist of action is the unreasonable interference with the use and enjoyment of land. Clark v. City of Springfield, 241 S.W.2d 100, 106 (Mo.App.1951). 4 Nuisance (originally an adjunct of the criminal law) derives from the early rule of tort liability, and so described an effect rather than a cause. White v. Smith, 440 S.W.2d 497, 502(6-8) (Mo.App.1969); Joyce, Law of Nuisances § 17 (1906). Thus, the conduct antecedent to the invasion of the use and enjoyment of land whether negligent or intentional was not relevant to remedy. That ancient basis for liability has since given way to interferences as are intentional, negligent, reckless or abnormally dangerous. Prosser, Handbook of the Law of Torts § 87 (4th ed. 1971). The contemporary view of liability is given in MAI 22.06: Verdict Directing Private Nuisance, which adopts the Restatement of Torts § 822 (1939) basis for liability. 5 The petition of the plaintiff alleges both a neglectful and intentional refusal of the District to maintain the south face of the canal to retain the waters from flood and damage to the land, and so states a cause of action for private nuisance under our practice. A plea of nuisance does not preclude other cumulative remedy. The nature of nuisance as an effect of conduct "otherwise actionable" (Restatement of Torts § 822(d) (ii) (1939)) allows the pleader to pursue, and ultimately elect, among alternative remedies. Hawkins v. Burlington Northern, Inc., supra, 599(2); Dobbs, Handbook on the Law of Remedies, p. 334 (1973); Prosser, Handbook of the Law of Torts § 89 (4th ed. 1971). The facts of the petition, taken most favorably to the pleader, state causes of action for trespass, negligence and even for an informal condemnation as well as for a private nuisance. Corrington v. Kalicak, supra, l. c. 892(4-7); Ferguson v. Union Electric Co. of Mo., 282 S.W.2d 505, 511(5, 6) (Mo.1955); Bohannon v. Camden Bend Drainage Dist., 208 S.W.2d 794, 801 (10-13) (Mo.App.1948); Rule 55.10. The judgment of dismissal treats the petition as a claim for private nuisance only, and errs for that reason.

The contentions on appeal focus, rather, on the source of the damage the petition pleads. The plaintiff contends the facts allege a temporary source of damage, subject to abatement, and so actionable for each invasion of interest, injury by injury. The defendant contends that the facts allege a permanent source of damage, an injury in legal contemplation fully accrued for all present and prospective invasion of interest, and so actionable only once when the invasion began or was manifest. Thus, determination of a nuisance as permanent or temporary bears both on the assessment of damages as well as on limitations. The subject of appeal, then, is whether the petition pleads a temporary or a permanent nuisance and the effect of the limitation of action as to each.

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