Woolston v. Blythe

• Decision Date: 06 November 1922
• Docket Number: No. 13002.,13002.
• Parties: WOOLSTON v. BLYTHE et al.
• Court: Missouri Court of Appeals

251 S.W. 145

214 Mo. App. 5

WOOLSTON v. BLYTHE et al.

No. 13002.

Kansas City Court of Appeals. Missouri.

November 6, 1922.

On Rehearing, April 2, 1923.

Rehearing Denied April 30, 1923.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by George A. Woolston, as administrator of the estate of Alfred B. Woolston, deceased, against Samuel I. Blythe and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Culver, Phillip & Voorhees, of St. Joseph, and Waggener, Challiss & Crane, of Atchison, Kan., for appellants.

James H. Hull, of Platte City, and Strop & Mayer and Eugene Silverman, all of. St. Joseph, for respondent.

ARNOLD, J.

This is an action to recover damages alleged to have been sustained by reason of the wrongful diversion of Sugar creek, a water course in Buchanan, and Platte counties, in Missouri.

The petition charges net defendants, acting together in conspiracy, turned the waters of said creek from the channel in which the same had theretofore been running across the lands of plaintiff, resulting in the loss of the use of said lands during the years 1908, 1909, and 1910. The record shows that Sugar creek is a living stream flowing from the hills in Buchanan county upon the bottom lands in Platte county. In dry seasons it runs only a small quantity of water, but in seasons of rainfall a large volume flows, making it difficult to keep the creek within its banks. In former years the creek flowed into a body of water known as Sugar Lake, but in course of time that body became divided into two parts, known as Big Sugar Lake and Little Sugar Lake, and the mouth of the creek prior to 1902 or 1903 was Big Sugar Lake. At that time the general course of the stream, after reaching the flat land, was first in a southwesterly direction, thence westerly, and thence northwesterly into Big Sugar Lake. About 1902 or 1903, at about the point where the creek turned northwesterly, the banks became broken during a freshet, and the creek turned its course southward, and thence flowed almost due south into Little Bean Lake.

Prior to the acquisition by defendants of a tract of land known as "No Man's Land," levees and dikes had been maintained by the landowners for the purpose of confining the waters of the creek within its channel. When these levees became broken by reason of freshets, persons whose lands were affected entered upon the lands and repaired the breaks wherever they occurred. After the break to the south and the change in the course of the creek above referred to, the channel to `the northwest leading to Big Sugar Lake became partially filled with logs and drift, thereby impeding the flow of water in that direction. That is to say, during high waters, part of the body of water flowed out through the old channel and part south into Little Bean Lake, making in a" short time a permanent channel southward of such proportions that the county erected a bridge across it for use in connection with a public road.

The lands of plaintiff's intestate lie west of both the old northwest channel and the channel to the south. Defendants own lands bordering on the creek some of which lie above the lands of plaintiff and some of the defendants' lands adjoin the creek as it flows south to Little Bean Lake.

The land upon which the break of 1952 or 1903 occurred consists of 25 acres, known as above indicated as "No Man's Land." During the year 1901, and just prior thereto, some of the defendants desired to change the course of the creek from its channel into Big Sugar Lake to a westerly direction across the lands now owned by George Woolston and by A. B. Woolston, his father, now deceased, into Little Sugar Lake. Proceedings had been instituted in the circuit court of Platte county with this purpose in view, but nothing was accomplished thereby.

In 1901 defendants and other persona not parties to this suit decided to procure the 25-acre tract known as "No Man's Land" and use it to turn the creek in a westerly direction. As part of the scheme or plan, said tract was purchased by a man named. Page, who in turn conveyed it to one of the defendants herein named games Coleman, as trustee. This deed was never recorded. The testimony on behalf of defendants tends to show that the reason for having the land thus conveyed was that Coleman lived nearest the land and could look after it. All of the 'owners lived within a distance of 3 or 4 miles. The contributions toward the purchase of the land were in proportion to the land holdings of defendants in the locality; the idea being that each should contribute in proportion to the benefits he would receive. No attempt was made to cultivate the land after its acquisition by Coleman and his associates, excepting for a year or two, and it was permitted to grow up in willows. Upon acquiring the land Coleman posted notices at the corners of it declaring, "No trespassing or interfering with the levee, by order of James P. Coleman, trustee." By 1998 the willows, which had been allowed to grow undisturbed, had grown to a considerable size, say 2½ to 3 inches in diameter, and extended from the bank of the creek west to plaintiff's line. Later defendants caused a large tree which was standing on the bank of the old northwest channel to be felled across the channel, and willows to be cut from the other bank across the channel on that side. The record further shows that in 1907 George A. Woolston had built a levee along the east line of his land, and that this levee was broken by a freshet in the fail of that year. The water ran through this break onto the Woolston land only so long as the high water lasted, and then went back into the southward channel; that in the spring of 1908 Woolston commenced to repair this break in his levee, but before he could complete this work he was stopped by a temporary restraining order instituted in the name of B. F. Moore. At the trial this temporary injunction was dissolved. The appellants herein were sureties on Moore's injunction bond.

A week or 10 days before the injunction suit was filed and the injunction served, defendants agreed among themselves to cut the willows from the creek bank to Woolston's land. The time fixed for this work was the day after the service of the order of injunction.

On the day Woolston was notified of the injunction, defendants herein and their employées appeared on "No Man's Land" and began cutting a swath through the willows, beginning at the west bank of Sugar creek at the point where it turned south and westerly to Woolston's east line. This swath was from 30 to 50 feet in width and extended in a straigh'; line from the creek to the east line of Woolston's land. Part of the cut willows were burned in the swath, while others were placed alongside, among the uncut willows, and still others were dragged upon the banks of the creek, south of the land. The logs and other drift in the cut swath were dragged out. All high points in the swath were cut down or graded, and the swath thus completed presented an unobstructed passage its entire length. There was no water running into the swath at that time. A substantial wire fence was upon the east line of Woolston's land. Where the cut swath encountered this fence, the fence posts were cut off even with the ground, the wire cut, and the section thereof so cut was swung backward and the banks of the creek at that point cut down to the height of the levee. All this was accomplished within two or three days after the injunction was served.

The record further discloses that a few days after this there came a freshet, the bank broke at the point where the swath joined the George A. Woolston land, and the water flowed first onto the George A. Woolston Land and then onto the lands of A. B. Woolston, and the creek was turned in that direction. During said freshet, the evidence shows that a number of logs were carried by the stream to the break in the levee, and, lodging there, threatened to block the opening. Defendants and their employées went into the creek and rolled out the logs that were too large to float through the opening and placed them across the south channel to prevent the water going in that direction. It is charged that this conduct of defendants threw the waters of the creek first onto the lands of George A. Woolston, and thence upon those of A. B. Woolston, consisting of approximately 160 acres, thereby destroying the use of said lands for the years 1908, 1909, and 1910.

This suit was instituted by A. B. Woolston on August 17, 1911, to recover damages for said years. The second amended petition, filed February 12, 1918, was in three counts. The first claimed $4,200 actual and $5,000 punitive damages for injury to crops and for rendering the residence, barn, and outbuildings untenantable for the year 1908; the second charged like damages in the sum of $2,900 actual and $3,030 punitive damages for the year 1909; and the third claimed like damages in the sum of $2,900 actual and $3,000 punitive damages for the year 1910. After the institution of this suit A. B. Woolston died, and the suit was revived in the name of George A. Woolston, administrator, the present plaintiff, who on the day the trial began filed an amended petition alleging that he had been appointed and was then the duly qualified and acting administrator of the estate of Alfred B. Woolston. This allegation was denied in the answer filed on the same day.

At the close of plaintiff's case defendant suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A. B. Woolston. Defendants then moved the court to abate the action because George A. Woolston was not then such administrator. The motion to abate was overruled by the court, whereupon defendants asked leave to amend their answer by setting up said facts. The court first ruled that the answer could be so amended, and that the...