Tackett v. Linnenbrink

• Decision Date: 10 January 1938
• Docket Number: No. 18811.,18811.
• Citation: 112 S.W.2d 160
• Court: Missouri Court of Appeals
• Parties: TACKETT v. LINNENBRINK.

112 S.W.2d 160

TACKETT v. LINNENBRINK.

No. 18811.

Kansas City Court of Appeals. Missouri.

January 10, 1938.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action by John Tackett against Simon Linnenbrink to recover damages for stretching a wire fence across a stream, causing damage to plaintiff's land. From a judgment for defendant, plaintiff appeals.

Affirmed.

Henry A. BalkenBush and John P. Peters, both of Linn, for appellant.

Leslie B. Hutchison, of Vienna, and Paul B. Dessieux, of Linn, for respondent.

SHAIN, Presiding Judge.

The plaintiff herein filed suit in the circuit court of Osage county, Mo., returnable to the June term, 1936, of said court, seeking to recover damages of defendant upon alleged grounds that the defendant willfully, carelessly, negligently, and maliciously stretched a woven wire fence across a stream, creek, or water course, so as to divert and dam the waters of a water course that traversed the lands belonging to plaintiff and defendant, and as a direct and proximate cause of said act caused the flood waters of said water course to cut a new channel through plaintiff's bottom land of about 50 acres and washed, cut, and carried away the surface soil of plaintiff's field for the distance of one-fifth of a mile in width to about 300 yards at the widest part, causing ponds to form on other parts, rendering same unfit for farming, and washing a hole at a point where plaintiff's only road and outlet was situate, making it necessary for plaintiff to construct a bridge, all to plaintiff's damage in the sum of $1,500, for which amount judgment is asked.

The defendant joins issue by answering and admitting that the lands adjoin and are traversed by the same creek or water course, but denies each and every other allegation of plaintiff's petition.

Defendant further answering states, that in about 1929, and long before plaintiff had acquired title to the adjoining land, he had erected a fence along the east part of his land which served to inclose his land and that the same has been there ever since. Further that the water course had always been in an easterly direction and that, if land had been washed and ponds formed, same were not due to defendant's fence, but to natural causes.

Trial was by jury and verdict was for defendant; judgment was entered in accordance with verdict and plaintiff appeals.

The plaintiff makes assignment of errors as follows:

"1. The trial court committed error prejudicial to the plaintiff in giving to the jury defendant's instruction identified as instruction `F.'

"2. The trial court committed error prejudicial to plaintiff in giving to the jury defendant's instruction identified as instruction `G.'

"3. The trial court committed error prejudicial to the plaintiff in giving to the jury defendant's instruction identified as instruction `H.'

"4. The trial court committed error prejudicial to the plaintiff in giving to the jury defendant's instructions `E,' `F,' `G' and `H' because said instructions are confusing and misleading to the jury and inconsistent with the pleadings in the case and the issues before the court and inconsistent with the evidence and are against the law.

"5. The trial court committed error prejudicial to plaintiff in giving to the jury defendant's instructions `F,' `G' and `H' because they are in conflict with plaintiff's instructions `A,' `B' and `C' and are misleading and confusing to the jury in that they submit the cause to the jury in two entirely different theories and are capable of two constructions.

"6. The trial court committed error prejudicial to plaintiff in giving to the jury defendant's instruction `E' because it assumes facts and ignores the issues made by the pleadings.

"7. The verdict is against the evidence and against the law.

"8. The court committed error prejudicial to the plaintiff in giving to the jury defendant's instructions `E,' `F,' `G' and `H' because said instructions precluded plaintiff from recovering any damages whatsoever and acted in the nature of a demurrer, and are not in conformity with the law."

Opinion.

We will continue to refer to appellant as plaintiff and respondent as defendant.

Plaintiff's assignments all go to questions as to the law as declared in the instructions. As to some instructions, assignment is specific as to the instructions named; other assignments are as to instructions as taken together as being in conflict.

We conclude that our determination of questions involved can better be understood by setting out the instructions referred to in full.

Plaintiff's instructions are shown; instruction A as follows: "The court instructs the jury that if you find and believe from the greater weight of evidence that the creek or stream which traverses the land of Simon Linnenbrink and John Tackett is a water course as defined in another instruction given you by the court, and if you further find from the greater weight of the evidence that the stretching of a woven wire fence across said water course by Simon Linnenbrink was done intentionally, or in a careless negligent manner, without placing in said creek or watercourse a suitable water gate by Simon Linnenbrink was the cause of plaintiff's land to be damaged and washed away by the flood waters of said water course and the channel of said water course was so deepened and otherwise enlarged that the plaintiff will be required to expend money for a bridge or culvert across said water course in order to pass from one field to another, or so that he will be able to use his road which crosses said water course, your verdict must be for the plaintiff in such sum as you will find from the evidence will compensate him for all damages he has sustained to his lands, and repay him for such sums of money he will be obliged to spend for a bridge or culvert across said water course, not to exceed the sum of Fifteen Hundred Dollars."

Instruction B as follows: "The court instructs the jury that a water course is a stream of water usually flowing in a particular direction, though it need not flow continually, it must flow in a definite channel having a bed, sides or bank, and usually discharge itself into some other stream or body of water."

Instruction C as follows: "The court instructs the jury that if you find and believe from the evidence that the stream or creek that traverses the land of Simon Linnenbrink and John Tackett is a water course, then the plaintiff in this case, John Tackett, is entitled to have the stream continue through his lands in its accustomed channel and natural volume without any obstruction of the channel or detention of the water by other owners of lands along said water course injurious to him, and in this connection you are instructed it is no defense that said obstruction of the channel of said water course was placed on the lands and premises of the defendant in this case, if you find from the greater weight of the evidence that an obstruction was placed across the channel of said water course by the defendant in this case, Simon Linnenbrink."

Defendant's instructions are shown; instruction E as follows: "The court instructs the jury that you may believe and find from the evidence that plaintiff's land and top surface thereof has been washed away, and that ponds and ditches have been formed on same, yet before you can find the issues for the plaintiff, you must further believe and find from the evidence that said ponds and ditches and the washing away of the soil on said land was directly caused by defendant's fence, and unless you so find, your verdict should be for the defendant."

Instruction F as follows: "The court instructs the jury that if they find and believe from the evidence that plain...