Rychlicki v. City of St. Louis

• Court: Missouri Supreme Court
• Writing for the Court: Black, J.
• Citation: Rychlicki v. City of St. Louis, 98 Mo. 497, 11 S.W. 1001 (Mo. 1889)
• Decision Date: 28 June 1889
• Parties: Rychlicki, Appellant, v. The City of St. Louis

11 S.W. 1001

98 Mo. 497

Rychlicki, Appellant, v. The City of St. Louis

Supreme Court of Missouri

June 28, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Reversed and remanded.

A. J P. Garesche for appellant.

(1) The right of the city to discriminate between two owners, by casting the injury of its embankment from the northwest corner of the land of plaintiff, is denied. Possibly and probably the injury which but for the conduits or drains under Page (or Cook) avenue to the northwestern lot is, in the eye of law, damnum absque injuria. But to cast these waters in a torrent upon plaintiff's land, to convert it into a channel for the drain of an entire district, is a confiscation of plaintiff's property to public uses, a right of eminent domain, to be exercised only upon just compensation. Const. U.S. art. 5; Attorney General v Leeds, 5 L. R. Ch. Ap. 583; Noonan v. Albany, 21 Alb. Law Journal. As to this constitutional restriction -- Schatner v. Kansas City, 53 Mo. 165; Imler v. Springfield, 55 Mo. 126; Wegman v. Jefferson City, 61 Mo. 55. True these cases have been overruled, but only as to their application, never as to the distinction on which plaintiff rests for a recovery. A distinction which cannot be better drawn than by two citations from the same state -- in one of which the rulings of 83 Mo. 271 -- Foster v. City of St. Louis, is maintained -- in the other is upheld as invoked in the present case. With which distinction the two cases are perfectly harmonious and, without it, absolute contradictions. Templeton v. Voshloe, 72 Ind. 135; Railroad v. Stevens, 73 Md. 278. This distinction is also maintained in: Dillon. Mun. Corp. (3 Ed.) p. 1078, sec. 1051; Winn v. Rutland, 52 Vt. 494; Pettigrew v. Evansville, 25 Wis. 230; Kobs v. Minneapolis, 22 Minn. 162; McClure v. Red Wing, 28 Minn. 194; Jacksonville v. Lambert, 62 Ill. 521; Phinizy v. Augusta, 47 Geo. 268; Union Springs v. Jones, 51 Ala. 656; Merrifield v. Worcester, 110 Mass. 217; Ashley v. Port Huron, 35 Mich. 298.

Leverett Bell for respondent.

The plaintiff in this case seeks to recover for injuries done to his land by surface water, precipitated thereon by the operations of the city government in opening Page avenue, under authority of ordinances duly enacted for the purpose. It is not alleged nor claimed that there was any negligence or want of care on the part of the defendant in executing the work. The case stated in the petition, and made by the proof, did not entitle the plaintiff to recover, and the court below properly directed a non-suit. Foster v. St. Louis, 71 Mo. 127. Abbott v. Railroad, 83 Mo. 271, fully sustains the action of the court below, and overrules McCormick v. Railroad, 70 Mo. 359 and Shane v. Railroad, 71 Mo. 237, on authority of which the present case was instituted.

Black, J. Sherwood, J., absent; Ray, C. J., dissents.

OPINION

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 non-suit 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 fifteen arpents 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 two thousand dollars. 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. 91; Ludeling v. Stubbs, 34 La. Ann. 935; Wash. on Eas. (3 Ed.) pp. 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, 84 Mo. 151; 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, 57 Mo. 433, 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, 78 Mo. 504.

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.

DISSENT BY: Ray

DISSENTING OPINION.

Ray, C J. -- 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 fifteen arpents, 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....