St. Louis Trust Co. v. Bambrick

• Decision Date: 23 May 1899
• Citation: 51 S.W. 706,149 Mo. 560
• Parties: ST. LOUIS TRUST CO. v. BAMBRICK.
• Court: Missouri Supreme Court

51 S.W. 706

149 Mo. 560

ST. LOUIS TRUST CO. v. BAMBRICK.

Supreme Court of Missouri, Division No. 2.

May 23, 1899.

OVERFLOWING LAND — PLEADING — MEASURE OF DAMAGES — RENTAL VALUE — INSTRUCTIONS.

1. In an action for overflowing plaintiff's land, a complaint which alleges the ownership and possession of the land at the time of the injury and at the time of the commencement of the suit, and the wrongful acts of defendant, and that plaintiff has been damaged thereby in a specified sum, is sufficient, and need not allege its value before the injury and its value afterwards, or its rental value from the date of the overflow to the time of the commencement of the suit.

2. In an action for overflowing land, an instruction that the jury may take into consideration the rental value of a quarry thereon in determining its value is not erroneous, as that is one of the criterions by which its value may be determined.

3. In an action for overflowing plaintiff's land, and permanently injuring a quarry thereon, it is error to give an instruction that the measure of plaintiff's damages is the difference between the value of the quarry just before the act causing the overflow and afterwards, where there has been no evidence as to its value at such times.

Appeal from St. Louis circuit court; Pembrock R. Flitcraft, Judge.

Action by St. Louis Trust Company, as executor of the estate of Anna F. McDonald, deceased, against John Bambrick. From a judgment in favor of plaintiff, defendant appealed. Reversed.

T. J. Rowe, for appellant. Wm. B. Thompson and Ford W. Thompson, for respondent.

BURGESS, J.

This suit was commenced by Anna F. McDonald for damages to a small tract of land, and a stone quarry thereon, of which she was the owner, by filling up with dirt on his land the channel of a stream of water which flows through her land, and also through defendant's, thereby backing the water up and flooding said quarry and land. The plaintiff recovered a verdict in the sum of $3,000, and, after unsuccessful motion to set the same aside, defendant appeals.

Since the case has been pending in this court, Anna F. McDonald has deceased, and the cause revived in the name of the plaintiff, as her executor. After alleging ownership in plaintiff of the land, the quarry, and the nature and character of the stream of water thereon, its source, channel, and course, the petition proceeds as follows: "Plaintiff further states that the said defendant has excavated the ground above the said channel, at a point upon and where it passes under his said premises, and has, within sixty days last past filled said channel with dirt, and partially obstructed the flow of the said waters through the same, so that the waters from said spring, and other waters running through said channel, have set back and accumulated to such an extent as to overflow the premises of plaintiff herein, and the same have overflowed the premises of plaintiff herein so that, where plaintiff's premises are excavated and used for a quarry, the same are no longer of any use to the plaintiff for quarry purposes, or for any other purposes, and that the premises of plaintiff herein, by the act of said defendant, have been filled with water, so that the same is now some twenty to forty feet deep, and that the water so accumulated by reason of the overflow is stagnant, and the same has injured and destroyed plaintiff's premises. Plaintiff says that said defendant has wholly obstructed and dammed up the said water course and stream, so that the water accumulated on plaintiff's premises cannot flow into the Marie Castor creek from the stream aforesaid, and the said water has become foul, polluted, and poisonous, and has destroyed the use of the said quarry of plaintiff herein, and also the land owned by plaintiff herein." It then concludes with a prayer for judgment for $20,000 damages. The answer is a general denial.

The facts, as disclosed by the record, are about as follow: Mrs. McDonald was, at the time of the grievance complained of and at the commencement of this suit, the owner and in possession of lot 52 of suburb Cote Brillante, in the city of St. Louis, Mo., as described in petition, and defendant was the owner of and in possession of lot 47 and part of lot 48 of suburb Cote Brillante, as described in the petition. At said time Giles F. Filley was the owner of, and in possession of, lots 56, 57, 58, and part of 59, as described in the petition. Prior to 1869, a stone quarry had been opened in the northeastern part of plaintiff's lot, and the same had been worked periodically from that time until about July, 1888, and from July, 1888, up to date of the trial it had never been operated. Plaintiff's lot 52 contained about 5½ acres, and the portion used as a quarry was about one-half of an acre. All the surface water of said lots 52, 56, 57, 58, and 59 and the property of Norwood Park Company drained into the quarry of plaintiff, and prior to 1893 the quarry frequently filled with water after heavy rains. In 1893 the defendant operated a stone quarry in the northern part of said lots 47 and 48, and the Marie Castor creek flowed eastwardly along the northern line of said lots. The water from a spring on the land of Giles F. Filley flowed northwardly in a fixed direction across the land of a corporation known as "Norwood Park," and into and across plaintiff's land, to a place in the stone quarry on plaintiff's land about 700 feet from its source, and there the water became submerged in a crevice in the rock in the bottom of the plaintiff's quarry. There was evidence tending to prove that the water, after it went into the crevice in the rock in plaintiff's quarry, came out again in the quarry of defendant about 1,000 feet from the place where it went underground, and became submerged on defendant's land. The evidence for plaintiff tended to prove that the water from said spring had so flowed from time immemorial, until, about 60 days before June 24, 1893, the defendant excavated the ground on his tract of land, and found the channel through which said water flowed, and partially stopped the flow, so that the abandoned quarry on plaintiff's land filled up with water, and was full of water at the time this suit was commenced. The evidence for defendant tended to prove that the quarry on plaintiff's land had been filled with water from 1889.

At the instance of plaintiff, the court instructed the jury as follows: "(A) If the jury believe from the evidence that from time immemorial a stream or water course known as the `Marie Castor Creek,' having a fixed, worn, and well-defined channel, has run, and still runs, across the property owned by defe...