Sigler v. Inter-River Drainage Dist.
| Decision Date | 22 December 1925 |
| Docket Number | No. 25582.,25582. |
| Citation | 279 S.W. 50 |
| Parties | SIGLER et al. v. INTER-RIVER DRAINAGE DIST. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Butler County; Almon Ing, Judge.
Action of Noble Sigler and another against the Inter-River Drainage District. Judgment for plaintiffs was affirmed by the Court of Appeals (257 S. W. 487), and certified to the Supreme Court. Reversed.
William N. Barron, of Poplar Bluff, and Oliver & Oliver, of Cape Girardeau, for appellant.
Sheppard & Sheppard, of Poplar Bluff, for respondents.
The judgment obtained by the plaintiffs in this case was affirmed by the Springfield Court of Appeals (257 S. W. 487); but that court, stating there was substantial ground for holding that its decision was in conflict with the decision of the Kansas City Court of Appeals in Arnold v. Worth County Drainage District, 209 Mo. App. 220, 234 S. W. 349, certified the cause to this court.
The case is one originally assigned to Judge WOODSON, and reassigned since his death. The suit of the plaintiffs, the owner of the land, and a crop tenant, is for damage done to their crops in the year 1919, and caused by an overflow of the Black river. The crops were upon lands lying wholly without the bounds of defendant drainage district. The substance of the charge in the petition is that defendant, by its system of levees and drains theretofore made, cut and intersected various sloughs and natural drains and water courses, and obstructed the flow of and tapped Black river, and turned and directed the waters flowing therein from their natural course, and collected them so that said waters were caused to flow and to stand on said land, whereby the crops were destroyed or damaged.
The Inter-River drainage district comprises 127,000 acres of land. It extends from Black river on the west to the St. Francis river on the east, and from where the waters of these two rivers, leaving the foothills of the Ozarks, enter the low and flat country to the south, and thence southward to the Missouri-Arkansas line.
The major elements of defendant's system of improvements consist of a great levee along the west bank of the St. Francis river, and a like levee along the east bank of Black river. Joined with or servient with these are lesser levees and numerous ditches for drainage. The land of plaintiff Sigler lies on the east side of Black river, between the river and the levee, and near to and southeast of the city of Poplar Bluff; but the "main portion of that city is situated on the west bank of that river. Black river flows out of the foothills at a point about 2 miles northeast of Poplar Bluff. Coming out of the hills, it curves southwestward for 3 miles, approximately, and then turning, curves southeastward for about the same distance, the line of its course forming a rough half circle.
Defendant's levee begins at a point about 2 miles northeast of Poplar Bluff and runs due south, upon range line 6 for approximately 4 miles, to a point near what may be described as the foot of the half circle, and near to the east or northeast bank of Black river. There the levee turns to the southeast, and thence follows in a general way the meanderings of the river southeastward. The land in this bend, about 2,000 acres, is all outside of the district, and it is a body in the form of a roughly shaped half moon, having the river for its western or convex and irregular boundary line, and the levee on the east for its straight boundary line. It was spoken of as comparable to the half of a bisected saucer. Along the west or river side of this straight north and south line of levee, the defendant constructed what is designated as a borrow pit ditch. The east bank of the river in this bend, and generally, is about 6 or 7 feet higher than the land to the east and southeast. The bank at first slopes somewhat abruptly; thence gradually eastward and southeastward. The borrow pit ditch, extending due south, cuts through the east bank of the river, and enters the river at a point near, and almost south of, the place where the levee turns from south to southeast. The levee is 12 or 13 feet in height and made of earth. The ditch along the west side of it was made in excavating earth for building the levee. The ditch is from 50 to 60 feet in width and 10 or 12 feet deep. The land of the plaintiff lies a little more than one mile northwest from where this ditch enters the river.
The valley of Black river, through the hill country north of defendant district, is somewhat narrow, the fall considerable, and the flow of the water rapid where it reaches the low and comparatively flat lands forming the district. There are several natural openings in the east bank of the river within the bend that has been described. The water flows through these in times of flood, and in high floods over the bank generally, flowing eastward and southeastward. One of these openings was spoken of as the Ball Park opening, about one mile west of the Sigler land; another as the Bennett opening, about three-fourths of a mile southwest of the Sigler land.
The Sigler land consists of two 40-acre tracts, lying east and west. From east to west it is nearly in the center of the basin that has been described, but from north to south it is somewhat south of the center. The elevation of the north side of the land is three feet higher than that of the south side. The testimony was that the water flowed through the Ball Park and Bennett openings when the river stood at 14.8 feet by the gauge. In the flood of June, 1919, involved here, the gauge was 16.4 feet. In the flood of May, 1915, it reached 18.7 feet. Plaintiff Sigler testified that the flood of 1915 was the highest which he had seen. The water was all over his land, and rose to a height of 3½ feet at the buildings on his land. It was much deeper on the south portion.
By far the most extensive opening in the east bank of this bend in the river is the one called Palmer slough. Palmer slough is an opening in the east bank of the river, at a point east of the northeast part of Poplar Bluff, and a little more than a mile west of defendant's levee. The opening in the bank of the river constituting the head of Palmer slough is described by the witnesses variously as from 200 to 300 feet in width, and near the river it has banks 8 or 10 feet high. The bed of the slough, at the river bank, is described as being 4 or 5 feet higher than the bed of the river. A dam is maintained across the slough near the river bank by a cooperage company, and at a point 600 feet below there is another dam maintained by the same company. The space between the dams is used for a logging pond. The water in the slough overflows the dam when the river reaches 11.6 feet on the gauge. Thus, in the flood in question, when the river reached 16.4 feet on the gauge, there was more than 4 feet of water flowing over the dams. The north line of the Sigler land is about three-fourths of a mile south, and slightly east from the dam at the Palmer slough opening. The topographic map introduced showed the elevation of the top of the dam to be 332 feet, the elevation at the north line of the Sigler tract, 331 feet, and at the south line 328 feet. From the south line of the tract southward toward the northeast bank of the river the land rises. The elevation at the bank of the river south of the Sigler land is 334 feet. Palmer slough as all the witnesses agree, extends Southward for a certain distance, about one-half of a mile, with well-defined banks, and then, as all agree, "fingers out" to the east and southeast, in several branches.
Plaintiffs' contention was and is that Palmer slough connected with the other sloughs and lakes extending east and southeast, and that before the construction of the levee, there was through these lakes and sloughs, and by means of them, a natural water course whereby a part of the water coming by overflow into the land embraced in the bend described, found its way into Black river, 10 or 12 miles below the Palmer slough opening. The contention further is that, by the construction of the levee and the borrow pit ditch, all the water was forced to flow on the west side of the levee, in the ditch and into the river where the ditch enters the river, and that thereby, the water was held up in the mouth of the ditch, and stood to a greater depth on the land above, until the subsidence of the river permitted the water in the ditch to flow out freely and drain the land.
It seems to be conceded that, when the river began to fall, the water drained off rapidly through the ditch. The particular slough which the plaintiffs undertook to show was a natural waterway and a connection, or partial prolongation of Palmer slough, and which was intersected by the levee, was called Caney slough.
Certain roads crossing the body of land between the levee and the river are mentioned by the witnesses. The line of the St. Louis-San Francisco Railroad, coming from northeast to southwest, crosses Palmer slough near where it opens out from the river. From a "Y" west of and near the head of Palmer slough, the Butler County Railroad extends southeastward, and crosses defendant's levee at a point one-half mile north of where the borrow pit ditch enters the river. This road cuts through the northeast corner of the Sigler land. A public road, called the Black road, runs along the north line of the Sigler land. North of and near the Black road, but not quite parallel with it from east to west, runs the Cairo branch of the Missouri Pacific Railroad (spoken of as the "Cat" Railroad) which crosses the Butler County Railroad at a point about one-half mile south of the head of Palmer slough.
The evidence for both plaintiff and defendant shows that Palmer slough, extending southward for about one-half mile, as it nears the line of the Missouri Pacific Railroad turns eastward, splitting into four or five branches, which extend eastward about...
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