Rychlicke v. City of St. Louis

• Decision Date: 28 June 1889
• Citation: 11 S.W. 1001,98 Mo. 497
• Parties: RYCHLICKE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

11 S.W. 1001

98 Mo. 497

RYCHLICKE v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

June 28, 1889.

SURFACE WATER — DRAINAGE.

A municipal corporation cannot collect surface water into drains, and discharge it thence in a body onto the lands of an adjoining proprietor, over which it formerly flowed, any more than a private person. RAY, C. J., dissenting.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Transferred from St. Louis court of appeals. Action by John K. Rychlicke against the city of St. Louis, to recover damages for injury to plaintiff's land, caused by discharging surface water upon it. The circuit court directed a verdict for defendant, and plaintiff appeals.

Alex. J. P. Garesche, for appellant. Leverett Bell, City Counselor, for respondent.

BLACK, J.

When this cause came on for trial in the circuit court, counsel for plaintiff made a statement of the facts which he proposed to prove. The statement was taken as proof of the matters recited, and, thereupon, the court directed a verdict for defendant, and plaintiff took a nonsuit, with leave, etc. This statement, which for the purposes of this appeal must be taken as true, is not as full as might be desired, but it discloses these facts: The plaintiff owns 15 arpens of land in the corporate limits of the city of St. Louis, bounded on the north by Page avenue, and on the east by King's highway. To the north thereof, and separated therefrom by Page avenue, is a block of land; and formerly the surface water on this block, as well as from a large district of country to the north thereof, flowed eastwardly and southwardly, and on and over the plaintiff's land. In opening the streets before named, the defendant diverted the surface water at the north line of the block before mentioned, and caused it to flow east to King's highway, thence south to Page avenue, thence west along the north line of that street for a short distance, and thence by drains and conduits under the road-bed of Page avenue, discharging the same upon plaintiff's property. By reason of the water thus collected and thrown upon plaintiff, six or eight acres of his land were turned into a morass, and ruined for the purpose of cultivation, to which use the land had been before devoted; all to the damage of plaintiff in the sum of $2,000. The work upon the streets was done by virtue of city ordinances duly enacted. The only question is whether these facts constitute a cause of action, and that they do we entertain no doubt. According to the rules of the civil law, as adopted by many if not most of the states of this Union, the owner of the higher adjoining land has a servitude upon the lower land for the discharge of surface water naturally flowing upon the lower land from the dominant estate; but it is well settled by the decisions of the courts, which follow the civil law, that this servitude extends only to surface water arising from natural causes, such as rain and snow, and that the owner of the higher land cannot collect the surface water in drains, trenches, or otherwise, and precipitate it in a body upon the lower land, to the damage of the owner thereof. Crabtree v. Baker, 75 Ala. 92; Ludeling v. Stubbs, 34 La. Ann. 936; Washb. Easm. (3d Ed.) 20, 450. The supreme judicial court of Massachusetts is pronounced in its adherence to the "common-law rule," as it is called on this side of the Atlantic. That court uses this language: "But there is a well-settled distinction that although a man may make any fit use of his own land which he deems best, and will not be responsible for any damages caused by the natural flow of the surface water incident thereto, yet he has not the right to collect the surface water on his own land into a ditch, culvert or other artificial channel, and discharge it upon the lower land to its injury." Rathke v. Gardner, 134 Mass. 14. Other cases in the same court, and in other courts, are to a like effect. White v. Chapin, 12 Allen, 516; Martin v. Simpson, 6 Allen, 103; Pettigrew v. Evansville, 25 Wis. 223; Templeton v. Voshloe, 72 Ind. 134. The question presented by this record is whether the defendant may, in the construction of its streets, collect surface water, and then, by means of drains and conduits, discharge it in volume upon the land of an adjoining proprietor. From the authorities before cited it makes no difference whether this particular question is tried by the rules of the civil law, or by what is called the "common-law rule." The result is the same, for either line of decisions rules this question against the defendant. According to our adjudications at this day, the defendant may grade and improve its streets, and is not liable for injuries arising from the incidental interruption or change in the flow of the surface water, save such injuries as may arise from the negligent doing of the work. Jones v. Railroad Co., 84 Mo. 153; Foster v. City of St. Louis, 71 Mo. 157. So, too, the defendant may protect its streets from water that accumulates thereon, and to that end may construct drains, gutters, culverts, and conduits, and may discharge the water into natural drains; but it has no right to discharge the water, thus accumulated, upon adjacent lands, in a body, as was done in this case. The true rule in cases like this was declared in McCormick v. Railroad Co., 57 Mo. 434, where it is said the owner of land cannot collect all the water falling upon his buildings, and, by means of pipes or gutters, precipitate the water upon the land of an adjoining proprietor; nor can he collect the surface water from the surrounding country into a pond, and then turn it loose in large quantities, so as to injure his neighbor. The owner of higher land has no right, by means of artificial ditches, to conduct surface water to, and discharge it upon, the lower land of his neighbor, in increased volume, thereby subjecting the lower estate to an injury it otherwise would not have suffered. Benson v. Railroad Co., 78 Mo. 512. We deem it unnecessary to pursue this question any further. As we understand the law its judgment is, upon the facts before us, that defendant must respond in damages. The judgment is therefore reversed, and the cause remanded.

SHERWOOD, J., absent; the other judges concur, except RAY, C. J., who dissents.

RAY, C. J., (dissenting.)

Not being able to concur in the opinion of my associates, in this cause, I present the following statement of the case, together with my views of the law, and the reasons for my non-concurrence. The petition in this case, after alleging that plaintiff is the owner, and in possession of a tract or parcel of land situated in the city of St. Louis, containing 15 arpens, more or less, and bounded west by the land of Bernard Pratt, south by land of owners unknown, east by the King's highway, and north by Page avenue, proceeds as follows: "Plaintiff further states that defendant illegally, and without color of title or right, under and across Page avenue, laid conduits or drains; and by which conduits and drains the surface waters falling north of said Page avenue were collected and thrown upon the said land of plaintiff. Plaintiff further states that the tract so owned and possessed by him, plaintiff, was, at the time of laying said conduits and drains, cultivated land; and, by reason of the said surface waters being so thrown upon it, was ruined for the purpose of cultivation, — turned into a morass, — to the great detriment of plaintiff; and by reason of all of which he has sustained damages in the sum of two thousand dollars, and costs, and for which sum he asks judgment." The answer thereto was a general denial. At the trial it was agreed that the following facts should be taken as proved by the plaintiff: "That the plaintiff was at the time of the institution of this suit, and for a long time previous thereto, the owner in fee-simple, and in possession, of the property described in the petition; that the surface water on the land north of the tract, in the petition described, flowed eastwardly and southwardly upon said land of plaintiff; that the defendant, in opening Cook or Page avenue, collected all of the surface waters of a large area north, so that they were diverted along the north edge of the block next north of plaintiff's land, eastwardly to the western line of King's highway, and were then brought southwardly down to the north-west corner of King's highway and Cook or Page avenue, and then turned westward on north line of Cook or Page avenue, and then, by drains or conduits laid by the city under the road-bed of Cook or Page avenue, under authority of ordinances for the establishment of said streets, duly enacted, discharged on the land of plaintiff; that throwing said surface water thus collectively on the land of plaintiff has, to the extent of six or eight acres, turned plaintiff's land, as described in the petition, into a morass, and ruined it for the purposes of cultivation; and that plaintiff, by the diminished rental caused by these surface waters, has been damaged to the extent of $2,000." Upon this agreed state of facts, the court instructed the jury that the plaintiff was not entitled to recover. Plaintiff, thereupon, took a nonsuit, with leave to move to set the same aside, and his motion in that behalf being overruled, appealed the cause to the St. Louis court of appeals, and the same has been duly transferred to this court. From the above statement it appears that plaintiff seeks to recover damages for injuries done to his land by "surface water" collected and thrown upon it by the operations of the city government in opening and constructing Page avenue under authority of ordinances duly enacted for that purpose. It may be well to premise that there seems to be a manifest inconsistency and contradiction in the case made by the pleadings and that presented by the "agreed facts" upon which the case appears to have been submitted at the trial. The first charges that the...