Webb v. Carter

• Decision Date: 11 December 1906
• Citation: 98 S.W. 776,121 Mo.App. 147
• Parties: WEBB, Respondent, v. CARTER et al., Appellants
• Court: Missouri Court of Appeals

98 S.W. 776

121 Mo.App. 147

WEBB, Respondent, v. CARTER et al., Appellants

Court of Appeals of Missouri, St. Louis

December 11, 1906

Appeal from Wayne Circuit Court.--Hon. E. M. Dearing, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Ernest A. Green and James F. Green for defendants; V. V. Ing of counsel.

(1) All the instructions given on part of plaintiff were erroneous. The water which caused the injury was surface water, and therefore, defendants are not liable. Johnson v Railroad, 111 Mo.App. 378; Abbott v. Railroad, 83 Mo. 280; Jones v. Railroad, 18 Mo.App. 251. (2) Water supplied by rain, although running through a natural depression, is nothing more than surface water. Gray v Schreiber, 58 Mo.App. 177; Schneider v. Railroad, 29 Mo.App. 68. (3) Plaintiff sued on one cause of action, to-wit: the negligent construction of defendant's tram, etc., and was permitted to recover upon a different theory. He must recover upon the theory of his petition, or not at all. Waldheier v. Railroad, 71 Mo. 514; Fuchs v. St. Louis, 167 Mo. 640; Chitty v. Railroad, 148 Mo. 40; Prior v. Railroad, 85 Mo. 367. (4) Plaintiff's second instruction is erroneous, as it leaves to the jury the determination of what is "surface water?" And the third instruction is erroneous in referring the jury to plaintiff's petition to determine the issues, and also in limiting the defenses of defendants. Bowles v. Hunter, 91 Mo.App. 333; Proctor v. Loomis, 35 Mo.App. 486; Omohundro v. Emerson, 80 Mo.App. 313; Hoeppner v. Hotel Co., 142 Mo. 375.

Clark, Sheets & Yount for respondent.

(1) The slough in question is a watercourse and appellants are liable for the result and damages for its obstruction. Jones v. Hammavan, 55 Mo. 462; Kenney v. Railroad, 74 Mo.App. 301. (2) The instructions given on behalf of respondent properly declared the law under the issue presented by appellants. Their only defense under their pleadings, evidence and instructions was that the injury was the result of an unusual rise in Logan's creek. They cannot now interpose a new defense. R. S. 1899, sec. 864; Pattison v. Letton, 56 Mo.App. 325; Bank v. Shackleford, 67 Mo.App. 475; Richardson v. Lee's Administrator, 71 Mo.App. 224; Terti v. Ins. Co., 76 Mo.App. 42; Wilson & McConnell v. Standard Operating Co., 93 Mo.App. 121; Hanford v. Kansas City, 103 Mo. 172; Burdoin v. Trenton, 116 Mo. 358; St. Louis v. Realty Co., 175 Mo. 63. (3) Appellants' criticism of respondent's second instruction is without merit. The definition of a watercourse given therein has been approved in the following cases: Gray v. Shriber, 58 Mo.App. 177; Munkres v. Railroad, 72 Mo. 316.

OPINION

GOODE, J.

--Plaintiff owns the north half of the northeast quarter of section 21, and the northwest quarter of section 22, township 29, range 2, east, in Reynolds county, Missouri, through which Logan's creek runs in a southerly direction. On the east side of the creek, plaintiff had a field of twenty acres in cultivation. In January, 1903, defendants erected a sawmill on the west side of the creek, a short distance above plaintiff's land. The mill stands several rods back from the creek. Some distance above the mill, a swale or slough starts from the west bank of the creek, runs south past the mill and empties into the creek a considerable distance below plaintiff's land. In time of freshets much of the surplus water from the creek passes out through this slough and on south of plaintiff's land.

The evidence shows that where the swale passes by the mill, defendants built a tramway across it, eight or nine feet high, and stacked railroad cross-ties and piles of lumber from eight to ten inches apart and from five to six feet high along on said tramway. In March, 1904, there was an unusual freshet in Logan's creek, causing the creek to overflow and its waters to extend from hill to hill, a distance of fourteen hundred and eighty-five feet at the mill. Plaintiff's evidence tends to show that the cross-ties and lumber stacked across the slough by the defendants caused the water in the creek to form an eddy at that point and to back up and force the current of the creek to the southeast and over and across the plaintiff's field, washing away all the soil and leaving the field worthless. The evidence also shows that the east bank of the creek, on which plaintiff's field abutted, was from three to four feet higher than the opposite bank; it also shows that a four-foot rise in the creek would cause the water to flow through the slough and that previous overflows from the creek had never damaged plaintiff's field. There was some countervailing evidence offered by the defendant. All the witnesses agreed that the slough receives all its water from Logan's creek and that water never flows through it except when there is a four-foot rise or over in the creek; and in dry weather the slough is dry.

"Plaintiff for his cause of action, states that on or about the ___ day of January, 1903, defendants erected a sawmill and lumber yard upon a part of the lands aforesaid, lying west of said Logan's creek and near to the slough above-described; that defendants, at the time of the erection of said sawmill and lumber yard, well knew that said Logan's creek was subject to overflow, and that when the same did overflow, there was a strong flow or current of water through said slough; that, notwithstanding defendants' knowledge of said conditions, on or about the ___ day of ___, 1903, defendants negligently and carelessly stacked a large quantity of heavy square green oak timbers in one continuous stack or pile, of the dimensions of about twelve feet high and twenty feet wide extending from their sawmill and across the said slough and toward and near to the bank of said creek, and extending at a sharp angle with the current of said creek. Plaintiff further states that on or about the ___ day of March, 1904, and while the timbers aforesaid were stacked upon said land, said Logan's creek overflowed its banks; that by reason of the negligence and carelessness of defendants in stacking said timbers across said slough, the flow or current of water that ordinarily passes through said slough was obstructed and deflected toward and across the main body or channel of said creek with such force and velocity as to force the current or flow of water out of the main body or channel of said creek and across and upon the cultivated field of plaintiff, situated upon the land aforesaid, thereby cutting and washing off the soil and otherwise damaging said field, so that the same has become and is wholly worthless to plaintiff. And plaintiff says that the reasonable value of said cultivated field before the said injury was $ 600."

The answer admits that defendants are partners but denies every other allegation in the petition.

A verdict for plaintiff for three hundred and fifty dollars, signed by ten of the jurors, was returned. Motions for new trial and in arrest of judgment were unavailing, and defendant appealed.

The court gave the following instructions for the plaintiff:

"1. The court instructs the jury, that if you shall believe and find from the evidence that the defendants, at the time alleged in plaintiff's petition, stacked a large quantity of large timbers across the slough mentioned in said petition, and that said slough is a water course as hereinafter defined, and that by reason of the stacking of said timbers across said slough by said defendants, their agents, servants or employees, the waters in said slough were diverted out of its usual channel and course of flowage and caused to flow in the direction of and across the main channel of Logan's creek with such force and velocity as to turn the course of said Logan's creek upon and over plaintiff's land, thereby washing off the soil and otherwise injuring said land, you will find for the plaintiff.

"2. You are instructed that a water course is defined to be 'a living stream with well-defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than surface water.' If, therefore, you shall find and believe that the slough in question had a well-defined channel and banks through which, at certain seasons, the water of Logan's creek were carried from a point on said creek above the land occupied by defendants, thence through defendant's land and were again discharged into said creek from said slough, then said slough is a water course within the meaning of the above definition.

"3. One of the defenses interposed by the defendants in this case is that the injury to plaintiff's land was caused by an extraordinary flood in Logan's creek, and was caused by what is known in law as the 'Act of God.'

"You are therefore instructed that although you shall find and believe from the evidence that such extraordinary flood was the cause of plaintiff's injury, you must find for the plaintiffs, if you shall also believe that the negligence of defendants as...