Tucker v. Hagan

• Decision Date: 06 December 1927
• Docket Number: No. 19909.,19909.
• Citation: 300 S.W. 301
• Parties: TUCKER v. HAGAN.
• Court: Missouri Court of Appeals

300 S.W. 301

TUCKER v. HAGAN.

No. 19909.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Appeal from Louisiana Court of Common Pleas; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by William Tucker against Henry M. Hagan. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank J. Duvall, of Clarksville, and Hostetter & Haley, of Bowling Green, for appellant. May & May, of Louisiana, Mo., for respondent.

BENNICK, C.

This action was instituted by plaintiff on July 24, 1925, to recover for damage done to his growing crops of corn in the years 1924 and 1925, by reason of the discharge thereon of water from a ditch, alleged to have been constructed and maintained at the direction of the defendant on land adjacent to that tilled by plaintiff, and over which defendant had the management and control. The verdict of the jury was in favor of plaintiff, in the total sum of $275, and from the judgment rendered in conformity therewith defendant has duly perfected this appeal.

The original petition filed by plaintiff counted only upon damage done to his crops in 1924, and was drawn upon the theory that defendant was the owner of the land upon which the ditch had been constructed. Subsequently an amended petition, in two counts, was filed, the first count covering the loss suffered in 1924, and the second count that in 1925. In the amended petition it was charged that defendant was an officer and agent of the corporation which held the record title to the land, and that, in such capacity, he had charge of the land, and directed its management and the operations of the tenants thereon.

Upon the filing of such amended petition, defendant filed a motion to strike out both counts thereof, alleging, as the basis for his motion, that the amended petition was a departure from the cause of action stated in the original petition. In timely manner, the motion to strike was taken up by the court and overruled, whereupon defendant duly excepted and filed his term bill of exceptions. Subsequently he answered, denying "each and every allegation in the first count of plaintiff's amended petition contained."

Plaintiff was a cropper on a ten-acre tract of land, triangular in shape, owned by one C. E. Edmonds. West of, and adjacent to, the land occupied by plaintiff was a larger tract of 61 acres, the property of the Sterling Portland Cement Company, a corporation, for which defendant served as legal adviser. The two bodies of land were bounded on the north by Salt river, and on the south by the track of the Chicago, Burlington & Quincy Railroad Company, both the river and the track extending generally in an eastwardly and eastwardly direction.

This controversy grows out of the alleged diversion of the waters of Tan Yard branch, a sort of depression or slough, more than two miles in length, through which water ran only during the rainy seasons of the year. It appears that Tan Yard branch flows toward the north, and that originally it had passed under the railroad track through a culvert constructed at the southwest corner of the cement company's land, and had thereafter emptied into Salt river near the northwest corner of the same tract. In the course of time, however, the culvert in question became filled and obstructed, in consequence of which the greater volume of the water from the branch was forced to flow towards the east along the south side of the railroad track, over land which was also owned by the cement company, until it found its way into Salt River across the extreme eastern portion of the Edmonds land.

In the spring of 1924, defendant, who had the management of the cement company's property, and controlled the operations of the tenants, directed that a ditch be dug along the north side of, and parallel and in close proximity to, the railroad track, for the purpose of leading the water of Tan Yard branch into Salt river. In obedience to such order, and in the manner directed, a ditch four to six feet in width, two and one-half to four feet in depth, and more than one-fourth of a mile in length, was constructed in April and May, 1924, extending from the culvert in question to within a few feet of the Edmonds tract, and, at the same time, the culvert was opened to permit an unobstructed flow of water through it. No provision was made, however, for controlling the water after it passed through the ditch, as a result of which it was left free to spread out and inundate the Edmonds land, which was slightly lower than that upon which the ditch was constructed. No point is made as to the extent of the damage done to plaintiff's crops by such overflows in either season.

The first point assigned by defendant for reversal is that the court erred in overruling his motion to strike out both counts of the amended petition, alleged to have been a departure from the cause of action pleaded in the original petition. We observe, however, in the light of the record before us, that defendant is no longer in a position to urge this proposition, no matter how meritorious his motion to strike may have been when brought to the trial court's attention. We say this for the reason that defendant clearly waived his right to have the action of the court reviewed, at least as to the first count of the amended petition, when he answered to the merits of such count, even though he had previously excepted to the adverse ruling of the court, and had filed his term bill of exceptions. Liese v. Meyer, 143 Mo. 547, 45 S. W. 282; State ex rel. v. Landon, 304 Mo. 654, 265 S. W. 529; Crecelius v. Chicago, M. & St. P. Ry. Co., 284 Mo. 26, 223 S. W. 413; Castleman v. Castleman, 184 Mo. 432, 83 S. W. 757; Schroeder v. Edwards, 267 Mo. 459, 184 S. W. 108.

While frankly conceding in oral argument that the above is true, counsel for defendant nevertheless argue that the answer as filed did not extend to the second count of the petition, and that, consequently, the ruling of the court on such part of the motion is still a live question. As we view the situation, however, the waiver of defendant must be held to apply to the ruling of the court upon the motion in its entirety. The waiver we speak of arose by reason of defendant's act in undertaking to contest the case on its merits after his motion had been overruled, whether his intention to do so was manifested by the filing of an answer, or otherwise. If it was defendant's opinion that his motion to strike was clearly proper, it was his duty to stand on his exception, let judgment go against him, and appeal. It would seem, however, that his prudence surpassed his valor, because, instead of resting his entire hope upon such dubious course, he appeared and went to trial upon both counts of the petition, all parties treating the whole case as properly at issue. Accordingly, the trial having been proceeded with upon such theory, it is unquestionably our duty, under the usual rules of appellate practice, to determine the case from whatever angle presented, as though an answer to both counts of the petition had actually been on file. Lopez v. Hines (Mo. Sup.) 254 S. W. 37; Wright v. Cobb (Mo. Sup.) 229 S. W. 171; Roaring Fork Potato Growers v. Clemons Produce Co., 193 Mo. App. 653, 187 S. W. 617; State Bank of Fox Lake v. Citizens' National Bank of King City, 114 Mo. App. 663, 90 S. W. 123; Johnson County Savings Bank v. Mills, 143 Mo. App. 265, 127 S. W. 425; St. Louis "Union Trust Co. v. Merritt, 158 Mo. App. 648, 139 S. W. 824.

It is next argued that the requested peremptory instruction in the nature of a demurrer to all the evidence should have been given, for the reason that the evidence, under the view of it taken by defendant, established conclusively that the water which gathered upon the land west of and adjacent to that farmed by plaintiff was merely surface water, which the proprietor of such land was entitled to dispose of without incurring liability in so doing.

It is quite true, as a general proposition of law, that surface water is regarded as a common enemy which every person may fight, subject to such restraint in so doing as we shall have occasion hereafter to mention. But, as we view the record before us for the purposes of the demurrer to the evidence, we conclude that it is largely immaterial to the result of the case whether the water which caused the damage to plaintiff's crops should be characterized as surface water or not.

Counsel for plaintiff very adroitly pleaded and submitted a case of liability, merely upon the theory that, by reason of the construction and maintenance of the ditch in question, the water from the upper estate was diverted from its natural course, and discharged upon plaintiff's growing crops. Accordingly, if it be said that the evidence was sufficient to indicate that Tan Yard branch was a natural water course (as to which we express no opinion), and that the same was diverted by the construction of the ditch, clearly plaintiff was entitled to recover, because the authorities are all agreed against the right of one proprietor of land to divert a natural water course so as to throw the water upon an adjacent proprietor to his injury. Benson v. Chicago & A. R. Co., 78 Mo. 504; Munkres v. Kansas City, St. J. & C. B. R. Co., 72 Mo. 514; Gottenstroetter v. Kapplemann, 88 Mo. App. 449; Schalk v. Inter-River Drainage District (Mo. App.) 226 S. W. 277.

On the other hand, if we concede for argument's sake that the water was only surface water, there yet remains the undisputed fact that the same was not left to its natural course of drainage, but instead was precipitated through the ditch directly upon plaintiff's crops. Thus, even under defendant's contention, plaintiff...