Wells v. State Highway Commission

• Decision Date: 10 December 1973
• Docket Number: No. 57447,No. 2,57447,2
• Citation: 503 S.W.2d 689
• Parties: Craig WELLS et al., Respondents, v. STATE HIGHWAY COMMISSION of Missouri, Appellant
• Court: Missouri Supreme Court

Page 689

503 S.W.2d 689

1974 A.M.C. 2154

Craig WELLS et al., Respondents, v. STATE HIGHWAY COMMISSION of Missouri, Appellant.

No. 57447.

Supreme Court of Missouri, Division No. 2.

Dec. 10, 1973.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 14, 1974.

Leonard R. Yocum, Clayton, for respondents.

Robert L. Hyder, Jefferson City, Paul R. Ferber, Kirkwood, for appellant.

HENRY I. EAGER, Special Commissioner.

In this action the plaintiffs seek damages from the State Highway Commission for the silting and partial filling of a lake on their respective properties. In the first count the Wells are plaintiffs and in the second count the Crowders are the plaintiffs. The contractor on the highway project was originally joined in two additional counts, but a voluntary dismissal as to it was entered as the trial began. The theory of plaintiffs was that their respective properties had been damaged within the meaning of Sec. 26, Art. I of the Missouri Constitution, V.A.M.S., which provides, in part, that 'private property shall not be taken or damaged for public use without just compensation.' The 'or damaged' element was first included in the Constitution of 1875. The provision is said to be self-enforcing, and plaintiffs sue directly thereunder. There is no controversy concerning the pleadings and we need not review them; they are sufficient to raise the issues which we discuss. The Wells had a verdict for $11,000, to which the trial court added interest of $4,235 under § 523.045, RSMo 1969, V.A.M.S., and the Crowders had a verdict for $3,000, to which interest of $1,155 was added. The combined judgments totaled $19,390. An appeal was taken by the defendant prior to September 11, 1970, the effective date of the statute (H.B. 34, Laws 1969, 3rd Extra Session, p. 110), which raised our monetary jurisdiction to $30,000. The appeal was taken, however, to the Missouri Court of Appeals, St. Louis District, which, by its opinion and order of November 3, 1971, transferred the case to this Court for lack of jurisdiction.

After the conclusion of plaintiffs' evidence defendant moved for a directed verdict, specifically raising the issues which it presents here. It filed no motion for a new trial, and no point is made on the amounts of the damages. The sole question here is whether a verdict should have been directed.

The action involves the construction of a portion of Interstate Highway 270 in North St. Louis County in 1961, 1962 and 1963. Plaintiffs Wells had bought a tract of land of about thirteen and one-fourth acres in 1952 and had constructed a lake thereon in 1953 by building a dam in a valley or ravine. This tract lay north of the highway and the natural drainway or ravine, which ran generally northerly, furnished water for the lake. A very attractive lake of approximately two and one-half acres was created. Plaintiff Wells sold a tract on the westerly shore to the Crowders in 1960, and they built a substantial residence thereon. Wells constructed a residence of some sort, apparently a more or less elaborate 'cabin' and installed other improvements. Fish were stocked in the lake and it was used both for fishing and swimming. The lake was approximately 700 feet long. The dam was 300 feet long. The evidence was that the water was clear prior to the road construction, except for a day or two after heavy rains. The depth of the lake varied from about three feet near its 'mouth' or beginning, to 14 or 15 feet at the dam; it was five and one-half feet deep in front of Wells' cabin. A strip of land of approximately 4.84 acres owned by someone else lay between Wells' property and the highway right-of-way. The 'ravine' or drainage channel crossed that tract which was about 200 feet 'deep.' The terrain on which the highway was constructed and the surrounding area was covered with grass, brush, shrubs and trees; it was rather rough and hilly and was not being farmed. The highway ran generally east and west.

The road construction continued for approximately two years, beginning in the spring of 1961. To the east and west of the ravine or valley which ran northerly into the plaintiffs' property were hills, several hundred feet distant. In the grading these hills were cut down for the width of the right-of-way, and the dirt thus derived was moved into a fill of 35 feet across the ravine; in fact, the ground level was graded down and the dirt moved to the ravine beyond the crests of both hills for about 500--600 feet; this grading caused the drainage on the highway from each direction to flow toward the ravine from a distance of several hundred feet beyond the point where the crests of the hills originally were. A three-foot tile was inserted under the fill at the bottom of the old drainage channel. Extensive grading was also done south of the main highway for a 'side road.' The main part of the area remained in a naked condition of dirt and mud for an extended period, apparently for the better part of two years. Photographs show a great amount of erosion. Eventually drainage channels were created (gutters etc.) which took the runoff down to the 'ravine' leading to plaintiffs' lake. The evidence fairly shows that the area from which the runoff came was greater than the original drainage area.

The evidence shows that by 1963 the lake had been so filled in with the mud and silt which came down with the water through the drainage channel, that its depth varied from nothing at the south end to about three and one-half feet at the dam. The upper end was entirely filled in for a distance of about 250 feet, and grass and vegetation grew there, even young trees. Where water remained the bottom was exceedingly muddy. The fish disappeared, the lake became substantially valueless for swimming, and its natural beauty was largely gone. There cane be no doubt that the silt and mud which drained from the road construction was the cause of the damage. The case was submitted on an instruction which predicated liability upon the hypothesis that defendant caused surface waters to carry 'increased amounts of mud and silt' into the lake. There might be some argument concerning the propriety of that instruction, but the question does not arise on this record.

Defendant's theory at trial and here was and is that plaintiffs failed to show: an unreasonable use of defendant's land; that the surface water had been discharged anywhere except in the natural drainway; or that the discharge exceeded the capacity of the drainway. Defendant apparently concedes that it is subject to the usual principles regulating surface waters. In fact, it relies upon the ramifications of that rule for exoneration, saying that in all respects it complied. Plaintiffs say: (1) that they need not prove an unreasonable use of defendant's land, but only a special damage to their property from defendant's construction, and the loss of a valuable property right; but that (2), even so, the increase in the flow of surface waters and leaving the terrain bare for approximately two years 'without adequate safeguards' to control excessive erosion, constituted an unreasonable use. Defendant has made no point of ...