Scheurich v. Southwest Missouri Light Co.

Decision Date24 January 1905
PartiesSCHEURICH v. SOUTHWEST MISSOURI LIGHT CO.<SMALL><SUP>*</SUP></SMALL>
CourtMissouri Court of Appeals

Appeal from Circuit Court, Newton County; H. C. Pepper, Judge.

Action by A. J. Scheurich against the Southwest Missouri Light Company. From a judgment denying plaintiff an injunction, plaintiff appeals. Reversed.

See 81 S. W. 1226.

C. H. Montgomery, for appellant. Trimble & Bradley and W. R. Thurmond, for respondent.

Opinion.

GOODE, J.

This is an action for damages for the construction and continuance of a nuisance, accompanied with averments of irreparable injury from its continuance, to prevent which, and a multiplicity of suits, the nuisance should be enjoined; relief of that kind being asked, as well as damages. The case stated is founded on section 8750 of the Revised Statutes of 1899, which provides that a person who builds or heightens a dam or other obstruction across a water course in this state, without proceeding according to the statutes regulating the construction of dams, shall forfeit double damages to any one injured by the obstruction, to be recovered by civil action. The nuisance complained of is a dam across Shoal creek, in Newton county. Scheurich owns a farm containing 200 acres, or more, in the valley of Shoal creek, at Grand Falls—a natural waterfall about 15 or 16 feet high on the west side, and 9 feet high on the east side, of the stream. Scheurich's farm lies on the east bank of the creek, and in a large bend; the creek flowing around the west side of his farm in a horseshoe curve. The difference in the height of the falls on the two sides of the stream is caused by a break in the rocky bed of the stream; the rock being much lower on the west side, and for about 90 feet from the west bank. In 1887 a man named Moffett built a wooden dam just above the falls, and across this 90-foot depression in the bed of the stream, but not extending to the eastern bank. At the east end of the dam he built a wing extending eastward, but not to the bank; thus enabling the water to flow uninterruptedly over the fall on the east side. The statutes of Missouri then, as now, required a person who proposed to erect a dam across a water course, not a navigable stream, to petition the circuit court of the county in which the dam was to be erected for permission to erect it. Upon the filing of the petition, it became the duty of the circuit court to cause a writ ad quod damnum to issue, commanding the sheriff to summon 12 persons to inquire touching the matters, contained in the petition, and, among other things, what damages adjacent proprietors would sustain by reason of the inundation consequent on the erection of the dam; whether the mansion houses of such proprietors, or their outhouses, curtilages, gardens, or orchards, would be overflowed; to what extent the passage of fish would be obstructed; and whether the health of the neighborhood would be affected in consequence of the erection of the dam. It was provided that, on the return of the inquest or writ, anybody aggrieved by the verdict might file objections, whereupon issues could be made up and tried as in other civil cases. But if no objections were filed, and it appeared to the court that the mansion house of any proprietor, or his outhouses, curtilages, gardens, or orchards, would not be overflowed, or the health of the neighborhood materially affected by the stagnation of the water, the court might grant or refuse the permission prayed, according to its judgment of what would be most reasonable and just, under all the circumstances. The statutory provisions bearing on the subject will be found in chapter 131 of the Revised Statutes of 1899, entitled "Mills and Milldams." It should be stated that the height of a dam can only be increased by proceedings similar to those requisite for the lawful erection of a dam in the first place.

Moffett put in his dam without complying with the statutes. In 1890 the Southwest Missouri Electric Light & Water Power Company, an incorporated company, bought the Moffett dam and other property appurtenant thereto. Said company tore out the wooden dam, and erected a concrete dam, with a wooden superstructure, in place of it, extending entirely across the stream; completing the work in 1891. The west end of this dam was about 17 feet above the natural depression of the table rock of the stream on the west side, and at the east end about 9 feet above. Scheurich's home was then where it is now—about 250 yards from the dam, and to the northeast of it. He was road overseer, and, while the work of construction was going on, he protested to the superintendent of the work against the construction of the dam, both as road overseer and personally, as owner of the adjacent farm; contending that it would obstruct the public road which crossed Shoal creek above the dam, and would overflow his land, and be deleterious to the health of his family. His protest went unheeded, and he took no legal step to interfere with the work, which was completed and remained of the dimensions stated until 1896. In the latter year the power company went into the hands of a receiver, and afterwards, by the consolidation of certain companies at Webb City and Joplin, the present defendant, the Southwest Missouri Light Company, was formed, and acquired the property of the defunct Southwest Missouri Electric Light & Water Power Company. The company last named, when it built the concrete and wooden dam in 1891, did not comply with the statutes in regard to petitioning the circuit court for permission to obstruct the creek. The plaintiff contends that in 1896 the dam was raised six inches by the defendant, by increasing the height of the wooden superstructure; the previous superstructure having been washed away in a freshet. The new woodwork was started on Sunday morning, August 9, 1896. Plaintiff saw men at work on the dam as he was on his way to Joplin to attend church, and notified the superintendent, George Myers, who was also superintendent of the construction of the dam in 1891, not to proceed with the work. He was given a sharp answer, and no attention paid to his remonstrance. The defendant contends that the wooden superstructure, at its present altitude, had formed part of the dam ever since the concrete dam was put in, in 1891, and was replaced in 1896, as it was at other times when floods washed it away, whereas the plaintiff's contention is that its height was increased in 1896, thereby increasing the height of the dam that much, and causing more mischief to his farm and the health and comfort of his family. Under the declarations of law given by the court, this question of fact becomes important. The court declared, at the request of the defendant, that if the dam complained of was built to its present dimensions more than five years before the bringing of this suit, and the plank top placed there more than five years before, constituting a part of said dam, and used as a part of it ever since, except when carried away by floods, plaintiff was not entitled to recover any damages. If, as contended by the plaintiff, the dam was raised in 1896 by increasing the height of the wooden superstructure, it was done in disregard of the statutes, for no steps were taken to procure the permission of the circuit court to increase the height of the dam, nor could permission have been procured by the defendant, as will appear. Plaintiff alleges that the dam...

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