Schalk v. Inter-River Drainage Dist.

• Decision Date: 16 December 1920
• Docket Number: No. 2643.,2643.
• Citation: 226 S.W. 277
• Parties: SCHALK v. INTER-RIVER DRAINAGE DIST.
• Court: Missouri Court of Appeals

226 S.W. 277

SCHALK v. INTER-RIVER DRAINAGE DIST.

No. 2643.

Springfield Court of Appeals. Missouri.

December 16, 1920.

Rehearing Denied January 1, 1921.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by C. J. Schalk against the Inter-River Drainage District of Missouri. Judgment for plaintiff, and defendant appeals. Affirmed.

Oliver & Oliver, of Cape Girardeau, for appellant.

Henson & Woody, of Poplar Bluff, for respondent.

FARRINGTON, J.

The defendant, who is appellant here, is a drainage district organized by the circuit court of Butler county under the law regulating the organization of drainage districts by circuit courts found in Session Acts of 1913, beginning at page 233, including an acreage of something like 127,000 acres of land. The district was formed for the purpose of reclaiming a body of land in Butler county, Mo., which lies between the St. Francis river on the east and Black river on the west; the north end of the district being bounded by the Ozark foothills; the average width of the distance between these two rivers being something like 9 miles. The plan adopted was to throw up a levee on the west bank of St. Francis river, which would keep the overflow water from that river off of the land within the district. With that side of the district and the levee we have nothing to do. On the west side of the district, commencing at the north end thereof, along the east bank of Black river a levee was thrown up from a borrow pit, which borrow pit was on the west side of the levee, and between the river and this levee followed the river down its course until it came to a place northeast of Poplar Bluff, where, instead of following the line of the river, it cut across south something like 2 or 3 miles east of the river at Poplar Bluff, where it again struck the Black river banks some distance below Poplar Bluff; Black river running in a southeasterly direction. In other words, there was a pocket of land of several thousand acres which was left outside of the drainage district and between the levee and Black river. The plaintiff's land lies in this pocket or body of land without the district, and his suit is based on an alleged claim that the drainage district in throwing up its levee dammed up and obstructed a natural waterway, and in addition to this that the borrow pit which ran into the Black river lowered the banks of Black river some 3 feet, which permitted the waters of Black river, when they reached a certain stage in flood, to travel back through this borrow pit and spread out over the country in which plaintiff's land was located; it being shown that the banks of Black river are higher and remain higher for 100 yards or so back from the river than is the land back of that point. In other words, the overflow of the river since time immemorial has built the banks higher than the land lying back of it.

There are several questions raised by appellant here and briefed by both sides; but the principal question for this court to decide is whether the levee which was built obstructed a natural waterway, thereby causing the water to be dammed up and back over plaintiff's land. His suit is for damages to growing crops, and he was awarded a verdict of 8300 by the jury.

The law seems to be well settled in Missouri that surface water is a common enemy which every man may ward off his land and thus throw it on an adjacent or lower owner, provided he does not, in warding it off, unnecessarily collect it and discharge it to the damage of his neighbor. The law is also well settled that water merely overflowing the banks of a river during a flood or freshet and spreading out over the bottom lands is surface water and thus falls within the rule regarding same.

It is also settled law in Missouri that a natural stream cannot be dammed up nor the waters from its beaten path or bed diverted to the damage of property without compensation therefor. The law as we have thus declared will be found in Goll v. Railroad, 271 Mo. 655, 197 S. W. 244; Inter-River Drainage Dist. v. Ham, 275 Mo. 384, 204 S. W. 723; Abbott v. Railroad, 83 Mo. 271, 53 Am. Rep. 581; Thompson v. Chicago, M. & St. P. R. Co., 137 Mo. App. 62, 119 S. W. 509; Walther v. City of Cape Girardeau, 166 Mo. App. 467, 149 S. W. 36; Munkres v. Railroad, 72 Mo. 514; Webb v. Carter, 121 Mo. App. 147, 98 S. W. 776; McGhay v. Woolston, 175 Mo. App. 327, 162 S. W. 292; Bruntmeyer v. Squaw Creek Drainage Dist., 196 Mo. App. 360, 194 S. W. 748.

It is claimed by the plaintiff in this case, respondent here, that south of his land is a slough known as Palmer slough, sometimes called Caney slough, beginning at the river bank and flowing in an easterly or southeasterly direction; that the waters from Black river, when it reaches a certain flood stage, pass into this Palmer slough, from that into Caney slough, from that into another slough known as the Big Cypress, and from that into another slough and then into Lake slough, and from that back into Black river. In other words, from what might be termed as the source of Palmer slough down to the mouth of Lake slough, where it empties into Black river, a distance of something like 10 or 12 miles, Black river, after it leaves where Palmer slough intersects its banks, runs in a southeasterly and southerly direction, turning to the east and finally running to where Lake slough enters into its (Black river's) waters.

It is contended by the plaintiff that these connecting sloughs form a natural stream which is one of the channels of Black river, carrying its waters when its waters reach a certain flood stage, and that they are in the main natural banks, and continuously during flood stages a...