Sough v. Steelville Electric Light & Power Co.
| Decision Date | 16 December 1920 |
| Docket Number | No. 1919.,1919. |
| Citation | 206 Mo. App. 85,226 S.W. 295 |
| Parties | STOUGH v. STEEVILLE ELECTRIC LIGHT & POWER CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.
Action by Charles B. Stough against the Steelville Electric Light & Power Company.
Judgment for plaintiff, and defendant appeals. Affirmed.
Frank H. Farris, of Rolla, and A. H. Harrison, of Steelville, for appellant.
Harry Clymer and E. E. Roberts, both of Steelville, for respondent.
This is an appeal brought by defendant from a judgment rendered in the circuit court of Crawford county wherein the plaintiff was awarded $675 for damages occasioned by plaintiff flooding his land with the water from a spring which had been dammed up, the water being brought through a race and through defendant's mill and discharged so that it found its way back to the natural channel of a creek into which the spring water would flow had it not been diverted by the act of the defendant. The cause was originally appealed to this court. We were of the opinion that the right to flow the water over the plaintiff's land by the defendant was that in the nature of an easement, and that the title to real estate was involved in the action. We therefore transferred it to the Supreme Court. That court in an opinion rendered in the cause held that the title to real estate was not involved and transferred the case back to this court. The opinion will be found in 217 S. W. 515, which contains a complete statement of the claims of the two parties together with a copy of the judgment rendered by the circuit court. We therefore refer to the facts which are stated in that opinion for a determination of the question here.
The principal question to be determined on this appeal is whether a defendant who has acquired the right to divert water from a water course on his land, and after using the same returns it to the natural channel of the stream of which it forms a part, can continue to discharge the water at the same place when by so doing he damages the plaintiff, a lower riparian owner, by reason of the fact that in a freshet occurring some 17 years before this suit was brought the natural channel of the creek into which the defendant had formerly discharged such water changed, and by such change the water which was discharged by the defendant found its way back into the natural channel over the plaintiff's land and in a course it had not so run prior to the changing of the natural channel of the creek.
The defendant dammed up a spring to make a reservoir of water to run its power plant. Had it not formed this reservoir, the water would have run down to a creek and followed the natural channel of such creek; but in order to run the power plant a race was built and the water carried quite a distance and then discharged by the plant so that it ran back into the natural channel of the creek. This process had been followed by defendant's predecessors in ownership of the property for a period of over 10, 15, and probably 20 years. Then in 1898 there was a severe rain, which caused the creek to change its course to the cast so that the natural channel of the creek no longer ran by defendant's power plant, where it had been discharging the water on plaintiff's land and returning it into the channel of the creek, but emptying it into what became the old channel of the creek. No operation was carried on continuously, but from time to time and within 10 years work was done in discharging this water so that, if defendant ever had any right by prescription to discharge the water on plaintiff's land so as to go back into the creek as it originally ran, such right was not defeated by the statute of limitations. It is on this ground that defendant claims the right to discharge the water just as it had done when the natural channel of the creek ran as it formerly did. We are of the opinion however, that under the law, regardless of how long or how continuously it had used this water in operating its mill, or its predecessors in operating their plants, when the natural channel of the creek changed by nature and remained by such change to be the natural channel of the creek for 17 years, it lost its right to discharge the water in the place where it had always done so by reason of the fact that in doing so it could not restore the water from the creek to its natural channel as formed by the freshet without running across the plaintiff's land to his damage. The reason for such holding is that a landowner is entitled to change the course of a natural stream within the limits of his own land, where he does not by so doing cast on the land of an adjoining proprietor water which would not naturally flow there, but restores the same to its natural channel before it reaches the land of the adjoining proprietor. See 40 eye. 608.
The rule is stated in the well-considered case of Stein v. Burden, 20 Ala. 127, 134, 65 Am. Dec. 394, loc. cit. 400, where the court used the following language:
To the same effect is the holding in the case of Smith v. Musgrove, 32 Mo. App. 241.
The place where the defendant now seeks to discharge this water is no longer the natural channel of the creek into which the water would flow were it not diverted at its source, the spring, and it has not been the natural channel since 1898. The defendant therefore is not complying with the condition which gives him the right to divert this water; that is, to restore it to its natural channel without damage to plaintiff's land. We therefore hold that the action of the defendant in casting this water on plaintiff's land is wrongful.
There is some complaint made by appellant concerning the action of the trial court in permitting damages to be assessed by a jury trial. The Supreme Court, in its opinion heretofore mentioned, in transferring the case back to our court, calls attention to the fact that the plaintiff is not objecting to the form of the judgment, and is therefore willing to accept a money damage rather than to insist upon the injunctive relief asked for in the bill; and the Supreme Court held that in view of the fact that, where the judgment rendered can be settled by the payment of money, no appeal will lie to that court where the amount involved does not exceed $7,500. On a reading of the record, we find there was evidence taken of the value of the damage to plaintiff's property, and from the record we cannot say that the sum allowed by the jury, and approved by the trial court, is so much in excess of the damages shown that the judgment should be set aside.
There are other questions raised on this appeal which we have considered and hold are not of sufficient weight to set aside the judgment. The principal question to be decided is whether the plaintiff's rights were being invaded by the action of the defendant in discharging the water into the old bed of the creek after a new channel had been cut and had remained the natural and main channel of the creek for 17 years, which change, made by nature, rendered it impossible for the defendant to divert the water without damaging plaintiff's land in restoring it to the new and natural channel. We hold on this point, as before shown, that with the right of diverting water from a stream goes the burden of restoring it to the stream without damage to a lower...
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