Yeoman v. Kansas City

• Decision Date: 20 May 1929
• Docket Number: No. 16619.,16619.
• Citation: 18 S.W.2d 107
• Parties: YEOMAN v. KANSAS CITY.
• Court: Missouri Court of Appeals

18 S.W.2d 107

YEOMAN v. KANSAS CITY.

No. 16619.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Appeal from Circuit Court, Jackson County; Hon. Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by Neva J. Yeoman against Kansas City. After verdict for defendant, plaintiff's motion for new trial was granted, and defendant appeals. Affirmed.

John T. Barker, City Counselor, and Joseph W. McQueen and Arthur R. Wolfe, Asst. City Counselors, all of Kansas City, for appellant.

L. A. Laughlin, of Kansas City, for respondent.

LEE, C.

This is an action for damages claimed on account of the flooding of plaintiff's property, alleged to have been caused by the improper construction by the city of a culvert for carrying the waters of a natural water course, known as Town Fork creek, under Bellefontaine avenue, near Fifty-Sixth street, in Kansas City, Mo. In particular it was claimed that a concrete partition in the center of the culvert would catch driftwood and débris, thus interfering with the free flow of the water.

Town Fork creek is a natural water course, the waters of which normally flow northwardly from somewhere south of Fifty-Seventh street, along the foot of a hill or stretch of high ground, roughly parallel with, and about 100 to 150 feet west, of Bellefontaine avenue, till it reaches a point perhaps 150 to 200 feet south of Fifty-Sixth street. At this point it turns at approximately a right angle to the east, to and across Bellefontaine avenue, and then on to the east. Plaintiff's property, at 5604 Bellefontaine avenue, lies along the north bank of the creek after it turns eastward. Formerly there was a space of several feet between plaintiff's land and the creek, but this has been gradually washed away, and the north bank is now on plaintiff's ground. This north bank is a relatively perpendicular one, and is several feet higher than the south bank of the channel. The ground extending to the south from this south bank is low, and does not reach the level of the north bank for some distance back, estimated by one witness to be as far as 200 to 300 feet. In its natural state, the flood waters after a heavy rain, coming down stream from the south, after rising above the right or south bank of the channel, would spread out over this low ground as far as was necessary to take care of the flood, and flow eastward beyond what is now Bellefontaine avenue, for a considerable distance. An old road formerly came down to the creek from the north, across what is now the rear of plaintiff's ground, for which a cut sufficient for the purpose had been made in the edge of the north bank; and at times of flood the water would sometimes run up this old roadway and onto plaintiff's backyard. Also the surface water from the hill to the east drained thereon to some extent. In late years sewers, street improvements, and drains have been constructed in the neighborhood, and it is claimed by plaintiff that no surface waters now flow over her property; and that, until the culvert was built, the creek never overflowed its banks onto her land.

In the year 1925 the city of Kansas City improved Bellefontaine avenue by grading and paving it for some distance north and south from plaintiff's property. The established grade, to which the improvements conformed, was at approximately the level of the north bank of the creek; but on the south side a fill was required, running southward to where it reached a level. The street was duly paved at this new grade level.

To take care of the waters of Old Town Fork creek, a culvert was constructed in the old channel thereof, under Bellefontaine avenue. This culvert was described by the city's engineer, who made the survey and suggested the plan, as follows:

"This is the box, a double seven foot box, seven by five. There is a brace wall in the middle, an eight inch brace wall. That is all there is to it. Then, of course, we put wing walls at the ends to keep the water from getting behind the culvert. Now, the reason this was designed fourteen feet wide and five feet high, we couldn't get it any higher than that. It is built on solid rock. There is a rock bottom there and the grade wouldn't permit getting it any higher. It is up to within a foot of grade now. * * *

"The grade of the street; the top of the culvert now is within one foot of the top of the paving. We have just got enough space on the top of the culvert to put the paving on. * * *

"Yes, sir, to bring the top of the culvert to one foot below the top of the paving."

He also stated that the culvert was of concrete; that the thickness of the concrete top was 8 inches and that of the paving 12 inches, making 20 inches from the inside roof of the opening to the top of the paving. When asked if it would be entirely practicable to have built the culvert and left out the partition, he answered:

"Not under grading proceedings. The reason that this partition was put in there was to cut down the cost."

He also stated that the main bed of the stream is not as wide as the culvert. The photographs in evidence seem to bear out this statement, or at least that it is no wider, taking the channel at low water; but in the nature of things the width of the channel increases as the water rises on the banks, which slope slightly to the north and very greatly to the south. The height of the opening in the culvert appears to be not far from the same height as the north bank, and several feet higher than the south bank, so that it will take care of a considerable flow that before the improvement would have spread outside of the channel and crossed Bellefontaine avenue on the flat. The evidence seems to indicate, and there was none to the contrary, that the culvert was ample to care for all the water that might have flowed in the creek's previous natural state, if the partition did not, as claimed, lower its capacity by causing an accumulation of driftwood, and if the overflow on the south bank were free, as formerly, to spread out and cross Bellefontaine avenue on the flat. No ordinance or contract was pleaded, but it was orally stipulated at the trial, under defendant's case, that the culvert was built under a contract awarded by Kansas City on January 30, 1925, and the contract confirmed by ordinance No. 49495, approved February 20, 1925.

The petition, after alleging that Town Fork is a natural water course, recites:

"4. That in the year 1925 defendant, Kansas City, made and constructed a culvert in Bellefontaine Avenue, where said watercourse crosses said avenue, and thereafter all the water in said Town Fork was caused to flow through said culvert.

"5. That defendant, Kansas City, not regarding its duty in that behalf, so negligently, insufficiently and improperly made and constructed said culvert, and at the time of committing the grievances hereinafter mentioned, kept and continued the same so negligently, insufficiently and improperly made and constructed, and in such an insufficient and improper state, and did also, at the same time, so negligently and improperly manage said water course and culvert that on...