Tant v. Little River Drainage Dist.

• Decision Date: 11 March 1922
• Docket Number: No. 2846.,2846.
• Parties: TANT v. LITTLE RIVER DRAINAGE DIST. et al.
• Court: Missouri Court of Appeals

238 S.W. 848

210 Mo. App. 420

TANT v. LITTLE RIVER DRAINAGE DIST. et al.

No. 2846.

Springfield Court of Appeals. Missouri.

March 11, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling E. McCarty, Judge.

Action by John H. Tant against the Little River Drainage District and another. Judgment for plaintiff, and defendants appeal. Reversed.

Shepard & Oliver, of Caruthersville, for appellant Otto Kotchtitzky.

Oliver & Oliver, of Cape Girardeau, for appellant Little River Drainage Dist.

Ward & Reeves, of Caruthersville, for respondent.

COX, P. J.

Action for damages alleged tc have resulted from overflow of water on plaintiff's land caused by the negligent maintenance of dams in ditches excavated and being excavated for drainage purposes. Judgment against both defendants for $4,000, and they have appealed.

The Little River drainage district was organized for the purpose of draining certain lands, and plaintiff's land was included in this district. The drainage district let the contract to construct a certain portion of a main ditch described as ditch No. 1 to Otto Kotchtitzky. In prosecuting this work under this contract, Kotchtitzky constructed a dam in said ditch No. 1 and also, as claimed by plaintiff, built a dam across a lateral ditch No. 60, and also a dam across another lateral ditch No. 63, and it was claimed by plaintiff that these two lateral dams held the water in these collateral ditches and caused it to overflow his land and prevented his cultivating the same for the seasons of 1918 and 1919.

The defendant drainage district was sought to be held on the ground that Kotchtitzky was its servant in doing the work and that it was therefore responsible for his negligence. Among the defenses pleaded by the drainage district and insisted upon by it at the trial was the defense that a drainage district is not liable for negligence and cannot be sued.

We have just held at this term, in the case of Greenwell at al. v. Wills & Son and Drainage District No. 6 of Pemiscot County, 239 S. W. 578, in an opinion by Judge Bradley, that a drainage district is not amenable to a landowner whose land is inside the district for damages caused by negligence in the prosecution of the work. The work being done in that case was the enlargement of a ditch previously constructed, while in this case the work being done was the original construction of the ditch; but the rule should be the same in both instances. We refer to that case for a statement of the reasons for holding the district not liable for damages caused by negligence in the prosecution of the work and the authorities sustaining that position. For the reasons there stated, we hold that the defendant district is not liable in this case and the demurrer to the testimony filed by it should have been sustained.

The plaintiff's cause of action against defendant Kotchtitzky rests on two facts: The building of dams in the main ditch No. 1 and the lateral ditches Nos. 60 and 63 which caused his land to overflow, and unreasonable delay in completing the contract so that all dams could be removed and the ditches be permitted to drain his land.

The plaintiff's testimony tends to show that Kotchtitzky built the dams across laterals 60 and 63, and also that he built a dam across the main ditch No. 1 into which these two laterals opened. That these dams were built in the early part of 1918 and were maintained until September, 1919. That before these dams were put in, his land was dry, but on account of these dams the water was held back and made to overflow his land, and he was thereby prevented from cultivating it in either of the years 1918 or 1919. Proof of these facts constitutes the basis of plaintiff's claim and the ground upon which he sought recovery. From plaintiff's witnesses, either in direct or cross examination, the following facts were elicited: Plaintiff's land had never been in cultivation, and prior to beginning the work on this drainage district was so swampy that it could not be cultivated. That it was the digging of these ditches in which the dams complained of were placed, and the drainage obtained by said ditches that had made his land dry enough to be cultivated at all. That the removal of the dams in laterals 60 and 63 would not have prevented the overflow unless the dam in ditch No. 1, into which these laterals opened, was also removed. That in digging the ditches, it was usual for darns to be maintained in order to hold water...