Roberts v. Hocker

• Decision Date: 02 December 1980
• Docket Number: No. KCD,KCD
• Citation: Roberts v. Hocker, 610 S.W.2d 321 (Mo. App. 1980)
• Court: Missouri Court of Appeals
• Parties: Wanda L. ROBERTS and Robert Carl Thomas and Viola Thomas, Appellants, v. O. Glen HOCKER and Mary V. Hocker and Tony B. Lumpkin and Elizabeth S. Lumpkin& Pearl Wallace Painter and Apartment Erectors, Inc., and Thomas H. Hocker andElizabeth Hocker and The Commerce Trust Company, Trustee for Wilson D. WoodMortgageCompany and Connecticut Mutual Life Insurance Company of Hartford, Connecticut,Assignee of Wilson D. Wood Mortgage Company and Frank W. Koger, Trustee forJames Talcott, a New York Corporation, Respondents. 30635.

Page 321

610 S.W.2d 321

Wanda L. ROBERTS and Robert Carl Thomas and Viola Thomas, Appellants, v. O. Glen HOCKER and Mary V. Hocker and Tony B. Lumpkin and Elizabeth S. Lumpkin& Pearl Wallace Painter and Apartment Erectors, Inc., and Thomas H. Hocker andElizabeth Hocker and The Commerce Trust Company, Trustee for Wilson D WoodMortgageCompany and Connecticut Mutual Life Insurance Company of Hartford, Connecticut,Assignee of Wilson D. Wood Mortgage Company and Frank W. Koger, Trustee forJames Talcott, a New York Corporation, Respondents.

No. KCD 30635.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

James S. Cottingham, Campbell, Gilmore, Erickson, Cottingham, Morgan & Gibson, Independence, for appellants.

Morris J. Nunn, Mark E. Johnson, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for Hocker, Lumpkin, Painter & Apartment Erectors.

John H. Foard, Sr., Smith, Foard & Perkins, Kansas City, for Hocker, Lumpkin, Painter, Apartment Erectors & Commerce Trust Co.

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

SHANGLER, Judge.

The appeal comes from a judgment adverse to a petition for damages and mandatory injunction on a claim that the defendants unreasonably diverted surface water onto the land of the plaintiffs.

The contentions are as to contiguous tracts on a strip of land situated between Highway 40 to the north and I-70 to the south. The upper one-third of the land lies within the limits of Independence and the remainder two-thirds, within Kansas City. The land sited in Independence fronts on Highway 40 and is used for commercial purposes. The land sited in Kansas City fronts I-70 and is used for dwelling purposes. The plaintiffs Thomas purchased the western tract in 1946 and in 1968 built two residences on the lower area. (The plaintiff Roberts, a Thomas daughter, occupies one of the structures.) A ceramics factory constructed in 1965 occupies the upper area. The HPL Development Company purchased the eastern tract in 1959. HPL was dissolved in 1965 and the shareholders (defendants here) became the fee owners as partners. The fee was thereafter leased to the defendant Apartment Erectors, Inc. with an option to purchase. Apartment Erectors then completed an apartment complex on the lower area of the eastern tract in May of 1967. The upper area of the tract was sold to V's Restaurant in 1971 and a dinner-lounge was installed on the site.

The mass of land was drained by a latticework of streambeds. In the natural state, the flow of the surface water was to the southwest through three tributaries on the land of the defendants (D tract). These outlets and a fourth creek to the west from the land of the plaintiffs (P tract) converged into a single stream which originated on the D tract and moved southwest across the property line onto the lower P tract. The raw D tract was rough and hilly terrain and inclined into a hollow which contained the bed of the main stream. (That is to say, the P tract was lower than the D tract.) To prepare the D tract for apartment construction development, in 1963 HPL reduced a hill and terraced the property. In that course, the three natural drainway tributaries on the D tract were levelled, tubes installed to carry off the water flow, and the area covered over. The tributaries were fed by the natural waterfall from the north side of Highway 40 and from the runoff on the tracts. The two easternmost feeder streams on the D tract were drained and a culvert installed parallel to Highway 40 to capture the natural flow usually fed into those tributaries. The westernmost tributary was made straight and a 72 tube installed along that bed. The water from the diversion of the two other tributaries was fed by the culvert into the 72 tube and carried off by the main stream. HPL laid another (36 ) tube parallel to the property line. The purpose of that improvement was to carry off the surface water from both the P and D tracts and to drain the efflux from a 27 tube the plaintiffs installed earlier (apparently along the bed of the fourth tributary). That water from the P tract was emitted into a hollow on the D tract property line for eventual discharge into the main stream. The upper terminal of the 36 tube was placed near the exit of the 27 tube to receive the effluence from the P tract tube and to facilitate the transport of the water into the main stream. A grate aperture in the 36 tube drained the surface water from both the P and D tracts. The 72 and 36 tubes were so placed that the lower terminals expelled water into the same point of the main stream. The tubes on the D tract (as was the tube earlier on the P tract) were covered and eventually laid over with asphalt. ¹ The work on the D tract was completed in middle 1967 and the apartments opened for occupancy. The surface of the parking area was laid with asphalt. The automobile area for V's Restaurant, then no longer owned by defendants, was later surfaced with asphalt also.

The evidence agrees that the site grades and tube installations did not affect the direction of the flow of drainage. The evidence agrees also that the water flow since the improvements does not exceed the capacity of the natural channel of the stream. There was evidence, however, that the overlay of asphalt upon otherwise porous ground increased the volume of surface water for drainage. There was evidence also that the transport through tubes rather than by open drain increased the velocity of the water. The plaintiffs contend that the tubes are so located ² that they spill with increased velocity against the west bank of the stream so as to accelerate erosion and undermine the land. The plaintiff Thomas testified that at the point of emission, the 72 tube was at a right angle to the channel and only some 20 feet from the Thomas residence. He described a course of erosion which moved relentlessly towards the Thomas' house and which has lowered the stream bed some four feet. The plaintiff engineer expert attributed the bank wash and deepened channel to the placement of the tubes and the turbulence of the discharge caused by the increased water velocity. The defendant engineer expert, on the other hand, detected a stream bed deepened only one or two feet beneath the level of the tube placement after fifteen years of water spill, and a bank erosion of no more than four feet at that site. The attrition of the west bank, he gave as opinion, was largely due to the natural meanders of the open water. The experts agreed, in any event, that the deepened stream bed was at the site of the tubes, and thus was an effect mostly on the D tract. The plaintiff testified also that the exposed roots of trees on the west bank of the stream proved the erosive force of the water emitted from the tubes. The defendant expert, however, gave evidence that the trees were in that state for at least thirteen years before. There was other contested evidence on the issue whether the erosion of the stream bank was a natural or induced effect.

The engineer for the plaintiffs proposed as the solution to abate the erosion process of the stream bed and banks the installation of a concrete construction in the form of a box, 8 inches thick, 25 feet long and 12 feet wide at exit. The purpose of the design was to absorb the turbulence of the emitted water and so reduce the effect of erosion. The cost of correction was estimated at $3300.

The plaintiffs assert damage from another, separate, diversion of the surface water by the defendants. They contend that the apartment complex terrain was so elevated and the appurtenant parking lot so constructed that the surface water concentrated at a low point and then gushed onto the lower P tract to drain into the stream. The result, the plaintiffs contend, is a deep gully worn across the P tract on the way to the stream, and an erosion of the stream where the gully enters. The plaintiff Thomas testified that the site preparation raised the elevation on the land for the apartment complex by six feet, and so affected the natural flow of the surface water into the stream. The defendants gave evidence that the apartment structures and lot conformed to the natural terrain but for slight modification. The parking area was so constructed that the lot pitched to a low point. The lot was rimmed by a curb along the west edge with an aperture at the low place to allow the surface water to flow off and drain into the stream. The plaintiffs contend that the curb construction had the effect of a spigot, so that the water fell in concentrated volume rather than as an even sheet flow over the P tract as when the D tract was in original condition. The result, the plaintiffs contend, is an erosion gully across the P tract to the stream. The evidence of the defendants shows, rather, that the lot followed the natural contour of the land, so that the drainage before construction as afterwards was from the low point and by an even sheet flow. That evidence was that the gully was the result of the natural drainage from the D tract into the creek on the P tract and was formed even before the construction on D tract. The erosion of the gully began to work towards the D tract, so that after installation of the parking lot, the defendants scattered concrete rubble at the edge of the lot (and, apparently, over some of the P tract as well) to protect against that encroachment.

The solution suggested by the engineer witness for the plaintiffs was a catch basin at the low point of the lot connected to the stream by a culvert to capture the efflux of water from the lot by a drop into the tube and discharge into the stream. Thus, the correction involves installation over both the P tract and D tract. The estimated cost was given as $4,000.

There was evidence that the erosion of the stream bed and bank on the P tract from the tubes' emission was evident to the plaintiffs Thomas as early as 1968. There was evidence also that they were aware even then...