Reed v. Cullor

• Decision Date: 03 November 1930
• Docket Number: No. 16551.,16551.
• Citation: 32 S.W.2d 296
• Parties: REED v. CULLOR.
• Court: Missouri Court of Appeals

32 S.W.2d 296

REED v. CULLOR.

No. 16551.

Kansas City Court of Appeals. Missouri.

November 3, 1930.

Appeal from Circuit Court, Mercer County; L. B. Woods, Judge.

"Not to be officially reported."

Action by Nancy J. Reed against Richard Cullor. After the trial in the circuit court, plaintiff died, and the cause was revived in name of John W. Reed, as administrator of her estate. From a judgment for plaintiff, defendant appeals.

Affirmed.

Lon R. Owen, of Brookfield, for appellant.

Clare Magee and V. C. Rose, Jr., both of Unionville, for respondent.

ARNOLD, J.

This is an action in damages for loss of crops on the lands of one Nancy J. Reed, caused by alleged wrongful acts of defendant. Since the trial of the cause in the circuit court, Nancy J. Reed has died, and the cause has been revived here in the name of her son, John W. Reed, as administrator of her estate.

The facts of record are that Nancy J. Reed and defendant, for a number of years, lived on adjoining farms in Putnam county, Mo. The Reed farm, consisting of seventy acres, joined defendant's farm of one hundred sixty acres on the west. Mrs. Reed owned a life estate in the said seventy acres, and defendant owned his land in fee. There was a division fence running north and south between the two tracts of land. There was also a public highway, or road, running east and west which bisected both parcels of land.

The petition is in two counts, the first of which alleges that a natural water course coming from the north ran through a part of the Reed land, north of the public road, thence onto defendant's land; that defendant obstructed this water course by building a dam or dike on his land, east of the division fence and adjacent thereto, causing the waters of said stream to back up and overflow the adjacent land of plaintiff, thus destroying a growing corn crop during the years 1924, 1925, and 1926, on two acres of said land to the amount of 240 bushels of corn of the value of 65 cents per bushel. Judgment is asked on the first count in the sum of $156 actual and $100 punitive damages.

The second count realleges all of the matters and things set forth in the first, and states that plaintiff is a life tenant of the lands described in count 1; that plaintiff is entitled to the rents, income, profits, and occupancy thereof, and that defendant owns real estate adjoining said lands; that on a portion of plaintiff's premises, south of a public highway, there are two natural water courses flowing in a general southeastern direction while on plaintiff's land, and then naturally and ordinarily the water therefrom empties on defendant's land, and thence naturally and ordinarily eastward into a large stream or creek; that defendant in the year 19—, erected and constructed earthen dams, or caused the same to be constructed and maintained on defendant's land within a few feet of plaintiff's premises, across both of said streams, causing the water thereof to back up, flood, and accumulate on plaintiff's land to a depth of several inches and cover three acres of plaintiff's land; that the lands so covered are pasture lands, but, as a result of the construction and maintenance of said dams, plaintiff has lost the use, benefit, and products of the said three acres of land during the years 1924, 1925, and 1926; that the reasonable value of said pasture is $3 per acre per year. Judgment is asked on the second count in the sum of $27 actual and $100 punitive damages.

A demurrer was overruled, and defendant filed his motion to make the petition more specific and certain, which motion was sustained, and plaintiff was given permission to amend her petition, as follows:

"1st count: That the water course herein complained of is the only water course flowing from plaintiff's to defendant's land.

"2nd count: That the water courses herein complained of are the only water courses flowing from plaintiff's to defendant's land."

On motion of defendant, plaintiff was required to give bond for costs, which was done. A change of venue was taken from Putnam to Mercer county, Mo., upon motion of defendant, and the cause was tried in said last-named county. In due time defendant filed his amended answer. The answer to the first count denies there is a natural water course running into and through the east part of plaintiff's said premises and thence onto and through defendant's land; denies that defendant at any time erected, constructed, or maintained, or caused to be constructed or maintained an earthen dam across the water course described in the first count of the petition; denies that he has at any time done anything to cause the water to collect and back up in large quantities over the lands of plaintiff, and states that in truth and in fact plaintiff's land is lower than defendant's land and frequently overflows, as the result of large and excessive rainfall. And, for further answer, defendant denies each and every allegation in the first count of the petition. For his answer to the second count, defendant denies there are two natural water courses flowing in a general southeasterly direction while on plaintiff's land, naturally and ordinarily flowing and emptying onto defendant's premises; that in truth and in fact plaintiff's premises, as described in the second count of the petition as adjoining defendant's premises, are lower than the said land of defendant; denies that defendant constructed earthen dams, or caused the same to be erected, constructed, or maintained, which caused water to back up and flood plaintiff's said premises; and denies each and every other allegation contained in the second count of the petition.

Upon the pleadings thus made, the cause was tried to a jury, resulting in a verdict for plaintiff on the first count for $78 actual damages, and, on the second count, actual damages were awarded her in the sum of $13.50. Judgment for plaintiff was entered accordingly in the sum of $91.50. A motion for a new trial was overruled, and defendant appeals.

The first point urged by appellant, under assignments of error, is that the court erred in refusing defendant's instruction in the nature of a demurrer at the close of all the evidence. In support of this charge it is urged plaintiff failed to show she had lost any rents and profits. In this behalf we find the testimony shows plaintiff owned a life estate in the seventy acres of land in question, to her use and benefit; that her son, Ira Reed, lived upon and farmed the land. Plaintiff was an elderly woman, over eighty years of age, and did not testify at the trial. The son, Ira Reed, testified he and his mother lived on the premises and made their home there; that he farmed the land under an agreement with his mother that he was to pay all taxes and overhead expenses and give her one-half the proceeds of the crops. No other testimony was offered on this point.

It is insisted by defendant that Ira Reed testified in a contradictory manner, first saying he had an arrangement to support his mother and farm the land; then, that he leased it for $3 per acre; and, third, that he gave her a part of the crop. It is argued this should have been sufficient grounds for sustaining the demurrer to plaintiff's evidence. And defendant states Ira Reed further testified he had not paid plaintiff any rent, but that he had the land on the shares; and that this testimony would bar plaintiff from recovering the full amount of damage to the crop, if any, caused by the alleged acts of defendant. It is further argued that, if Ira Reed rented the land from his mother at all, whether he paid or did not pay her, plaintiff could not maintain this action for loss of the entire crop, unless she...