Williams v. Beatty

• Decision Date: 01 November 1909
• Citation: 122 S.W. 323,139 Mo. App. 167
• Parties: WILLIAMS et al. v. BEATTY.
• Court: Missouri Court of Appeals

122 S.W. 323

139 Mo. App. 167

WILLIAMS et al. v. BEATTY.

Kansas City Court of Appeals. Missouri.

November 1, 1909.

Rehearing Denied November 15, 1909.

1. HIGHWAYS (§ 120) — ALTERATION — POWER TO ALTER.

A person whose land abutted on a public road constructed on an embankment through lowlands, on the right of way of which, and on his side of the embankment, was a drainage ditch, had no right, without complying with Rev. St. 1899, § 9414 (Ann. St. 1906, p. 4327), requiring an application for the change of roads to be by petition to the county court, to obstruct the ditch and change the road by moving the embankment to the other side of the ditch and on his own land, and by placing culverts in the embankment so as to collect and throw onto land on the other side of the road surface water which formerly flowed through the ditch.

2. HIGHWAYS (§ 120) — OBSTRUCTION — INJUNCTION BY ABUTTING OWNER — SPECIAL DAMAGES.

It clearly appearing that such a change in the road and ditch would not only be detrimental to the general public, but would inflict special damage to land on the other side of the road, the owner of the other land was entitled to enjoin the change, since an abutting owner has rights in the highway which are special to himself, such as the rights of ingress and egress.

3. EQUITY (§ 65) — MAXIMS — CLEAN HANDS — APPLICATION OF RULE.

The fact that the complaining party had previously raised the grade of the road and removed culverts therein without formal authority would not preclude his injunctive relief under the maxim that he who seeks equity must do so with clean hands, as his prior acts were an entirely separate matter, and the maxim applies only to conditions related to the subject of litigation.

4. HIGHWAYS (§ 120) — OBSTRUCTIONS — RIGHTS OF ABUTTING OWNERS.

The complainant's right to an injunction was not affected by an instrument executed by his grantor to the other party, giving him permission to construct a drainage ditch through the grantor's land; that right not being in controversy.

5. COVENANTS (§ 70) — RUNNING WITH THE LAND — LICENSE — REVOCABILITY — "INCUMBRANCE."

An instrument, giving a person the right to construct a drainage ditch through the land of the person executing the instrument, being without consideration, and not acknowledged and recorded, was a mere license, revocable at the

will of the licensor and his grantee, and not a covenant running with the land, and did not constitute an "incumbrance" thereon which would prevent the conveyance of a fee-simple title by the grantor.

Appeal from Circuit Court, Macon County; Nat M. Sheldon, Judge.

Action by Barnett R. Williams and another against Samuel G. Beatty. Judgment for plaintiffs, and defendant appeals. Affirmed.

I. G. Ringoldsky and Guthrie & Franklin, for appellant. I. W. Barrow and Dysart & Mitchell, for respondents.

JOHNSON, J.

This is an injunction suit, brought by the owners of a farm in Macon county, to restrain defendant, the owner of an adjoining farm, from interfering with the public road and drainage ditch separating the two farms. Both farms are in the valley of the Chariton river on the east side of that water course, and extend eastward to the hills. That of plaintiffs is on the south side of the public road, which runs east and west from the river to the hills, and is in sections 34 and 35, township 59, range 16. The farm of defendant is on the north side of the road, in sections 26 and 27. From the hills westward the roadway, for a distance of about half a mile, is 60 feet wide, thence to the river, a distance of between a quarter and a half of a mile, it is 80 feet wide. At the time this suit was begun the road had been improved by the construction, in 1897, of an embankment over the bottom land, by which the traveled way was elevated to a height sufficient to insure a good road in bad weather. A drainage ditch had been dug on the north side of the embankment and on the right of way from the hills to the river, to carry off the water, flowing in two streams, that come out of the hills and unite at the northeast corner of plaintiffs' land. Before the construction of the ditch the stream formed by this junction flowed in a northwest course onto the land of defendant, where it became diffused into a chain of ponds, swales, and marshy places, that extended first northwesterly, then curved around to a southwest course, until it passed from defendant's land to that of plaintiffs, at a point nearly a half mile west of its place of entry on defendant's land. After the drainage ditch was built, defendant, by running out auxiliary ditches from it, drained these ponds and low places into the drainage ditch, and we think the evidence shows that defendant's farm was greatly benefited by these improvements, and was not subjected to any additional servitude by them, though it appears that the flow of surface water from his land to that of plaintiffs was stopped. The threatened acts of defendant, to prevent which this suit was brought, are these: Professing to have authority from two of the road commissioners so to do, he was about to change the road entirely by moving the embankment north of the drainage ditch and onto his own land, and by putting culverts in the embankment in a way to collect and throw on plaintiffs' land surface water which now flows through the drainage ditch.

What had been done, and is threatened to be done, by defendant appears in the following extract from the judgment entered by the trial court: "And the court finds from the evidence that there is a public road duly established and passing on or near the line between the N. W. ¼ of the N. W. ¼ of section 35, and the N. E. ¼ and the E. ½ of the N. W. ¼ of section 34, township 59, range 16 on the south, and the S. W. ¼ of the S. W. ¼ of section 26, and the S. E. ¼ and the E. ½ of the S. W. ¼ of section 27, township 59, range 16 on the north; that near all of the said distance the said road passes over bottom lands of the Chariton river; that at the time of the institution of this suit the said road was well graded up for nearly all of said...