Stough v. Steelville Electric Light & Power Co.

• Decision Date: 06 January 1920
• Docket Number: No. 20570.,20570.
• Citation: 217 S.W. 515
• Court: Missouri Supreme Court
• Parties: STOUGH v. STEELVILLE ELECTRIC LIGHT & POWER CO.

217 S.W. 515

STOUGH v. STEELVILLE ELECTRIC LIGHT & POWER CO.

No. 20570.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by Charles B. Stough against the Steelville Electric Light & Power Company. From a judgment for plaintiff, defendant appealed to the Springfield Court of Appeals, which certified the cause to the Supreme Court. Cause remanded to the Springfield Court of Appeals because of lack of jurisdiction of the Supreme Court.

See, also, 196 S. W. 37.

This is an injunction proceeding, commenced in the circuit court of Crawford county, Mo., on January 14, 1916, against the defendant, a Missouri corporation, engaged in the operation of a power plant for the manufacture of electricity in said county. The petition alleges, in substance, that plaintiff was, at the commencement of this suit, and had been for the last 20 years, the owner in fee simple, and was in possession, of 120 acres of land, more or less, described in petition, and located in said county. It is described as all of the west half of the southeast quarter and the northeast quarter of the southwest quarter of section 35, in township 38 north of range 4 west, etc.; that defendant is the lessee, and is now in the possession and control of 24 acres and a fraction of land located in section 2, township 37, range 4, and in section 35, township 38, range 4 west of said county, and described in petition, which said land is adjoining and contiguous to the lands of plaintiff aforesaid; that over and through said land of plaintiff there is a well-defined water course, with well-defined banks, bed, and channel, through and along which a permanent stream of water continuously flows; that said water course has been In existence for more than 17 years last past, has its source some distance south of plaintiff's land aforesaid, and drains a large area of rough and broken land, as well as cultivated lands, consisting of thousands of acres lying south, east, and west of plaintiff's premises; that said water course has existed during all of said 17 years and is permanent in character, with well-defined bed, banks, and channel; that situated on said premises held by defendant as lessee is a large spring continuously flowing many thousands of gallons of water per minute; that on the __ day of ____, 1915, and for many years prior thereto, the water from said spring flowed into the water course aforesaid at a point near said spring and south of plaintiff's premises, and thence on through said water course to its natural outlet; that on the __ day of ____, 1915, defendant, through its agents and employés, wrongfully, willfully and unlawfully, without right or authority in law, built, constructed, and is now maintaining a race or canal from said spring over and across the premises of defendant, and terminating at a point within a few feet of the line between plaintiff's premises and those of defendant; that it also built, constructed, and is now maintaining a dam at and near said spring of such character as to divert the water flowing from said spring, and to prevent said water from flowing into said water course at the point which it would naturally enter and at the point where it has been entering said water course for the past 17 years or more, thereby causing the water from said spring to flow into and through said race or canal, and to be carried through the same to the end thereof, and then discharged in such manner that it immediately flows upon and over the lands of the plaintiff.

It is averred in petition that by the wrongful and willful acts of defendant in diverting said water as aforesaid, and discharging the same upon plaintiff's premises as aforesaid, a large number of acres of plaintiff's land is overflowed and rendered worthless; that a large part of the meadows and blue grass pasture on said premises are thereby covered with water and rendered unsuitable for use; that the volume of said water so diverted and discharged onto the premises of plaintiff is liable to, and will, wash said premises and cause the same to be washed, and will cut, and cause to be cut, ditches in and across said land, will deprive plaintiff of the use and benefit of same, and cause the plaintiff irreparable injury; that the injury and damage thus caused by the act of defendant as aforesaid are not susceptible of compensation, in damages; that plaintiff has no full, adequate, and complete remedy at law therefor. Wherefore he prays that defendant, etc., be perpetually restrained from maintaining said dam and race or canal, and from diverting the water from said spring and discharging it onto the land of plaintiff aforesaid, and for such other and further relief as to the court may seem just and proper and for costs of suit.

Defendant's answer admits that it is a corporation duly organized and operating an electric power company, and that it is furnishing power as a commodity for public use. It admits that plaintiff is the owner of the land claimed in his petition, and that defendant is the owner and lessee of the lands claimed to be owned and leased by defendant in plaintiff's petition. It denies specifically, that all the other facts alleged in the petition are sufficient to constitute grounds for an equitable injunction, and avers that the facts as pleaded therein show plaintiff has an adequate remedy at law, and is not entitled to the relief sought. It specifically denies that it or its agents or servants have in any manner or form diverted the course of the waterway upon plaintiff's land, or one that runs through or upon his land, and denies that it or its agents or servants have in any manner or form interfered with it or in any wise altered any water course running upon, through, or adjacent to plaintiff's lands. Defendant further denies each and every allegation of plaintiff's petition not here specifically admitted.

The answer further avers that it is, and at the times mentioned in the petition its lessors and grantors were for a long time prior thereto, the owners of the lands charged in plaintiff's petition in sections 2 and 35, heretofore mentioned, which said lands are the same as those described in the petition; that there has been always on said land, a large natural spring of clear, pure water in sufficient volume to be valuable for commercial purposes in the operation of machinery and manufacturing plants; that the base of said spring, and the level of its water, is far above the level of the water course complained of and described in petition, but that much of the water from said spring ran down the hillside and reached the water course aforesaid; that about 40 years ago, and long prior to plaintiff's ownership of the lands claimed by him to be now damaged, the prior owners and occupiers of said land and spring now owned and controlled by defendant erected upon said land and near said spring a grain mill, and operated the same from the water power of said spring; that to secure the same and conserve the water of said spring they erected and constructed a dam around said spring, causing the water thereof to flow and gather in a body and reservoir, and conveyed said water from said spring and reservoir to said mill by and through a millrace, which was constructed at great expense and trouble, and which was a permanent race leading from said spring to said will; that after the construction of said dam and said race a very small portion of the water from said spring reached the water course aforesaid by running down the hillside to the level, but that practically all the water which flowed reached said water course after passing down said millrace through the mill and then into the water course at said mill, said water course then having its main channel immediately adjacent to said mill; that the mill, race, and dam were maintained and continued for many years, and the water utilized thereby for many years; that said millrace has never from its construction been abandoned, destroyed, nor removed; that in the year 1898 there was an unusual rain and water fall, in fact, a water spout at said spring and the territory adjacent thereto, that caused the dam aforesaid and parts of the race aforesaid to be washed out and destroyed, and permitted the water from said spring to again at times flow down the hill into the water course at the same point as before the construction of said dam and race; that the same flood, by force of the water, washed out and constructed another and further channel for said water course, through which the large volume of water has since been carried; that said channel is further from the mill site and millrace than its original channel and at a different point on plaintiff's land than the original channel; that said new and additional channel for said water course is about 1% feet below the level of the original channel; that said original channel is now, and has been since the year 1898, clearly discernible and easily followed as a channel through which water has continually run, when there was a rise of 1% feet in the water of said water course, as well as all water from certain springs along the course of said old channel; that defendant's grantors shortly after said flood, and at other times, have in a measure rebuilt said dam, repaired said race, and caused the water to run through the same as before; that defendant has completely rebuilt said dam, repaired said millrace, and has caused the water from said spring aforesaid to run through the race to the mill site and to be discharged therefrom as in the first instance, and to reach the original channel of said water course as before.

Said answer further avers that the assignor of the defendant corporation, with the view of utilizing the water and power from said spring, secured from the city of Steelville a franchise in 1915 to furnish to the citizens of said city and the city government...