Young v. Moore

• Decision Date: 21 February 1951
• Docket Number: No. 6935,6935
• Citation: 241 Mo.App. 436,236 S.W.2d 740
• Parties: YOUNG et al. v. MOORE et al.
• Court: Missouri Court of Appeals

Page 740

236 S.W.2d 740

241 Mo.App. 436

YOUNG et al. v. MOORE et al.

No. 6935.

Springfield Court of Appeals, Missouri.

Feb. 21, 1951.

James A. Finch, Jr., Finch & Finch, Cape Girardeau, for appellants.

J. Grant Frye, Gerald B. Rowan, Cape Girardeau, for respondents.

VANDEVENTER, Presiding Judge.

This is an action in equity seeking to enjoin the defendants from permitting water on their farm to flow through a man-made ditch into Cypress Slough and thence onto the lands of the plaintiffs to their damage. From a decree, partially enjoining them, the defendants have appealed.

This being an equity case, it is heard by this court de novo upon the record and it is our duty and responsibility to render such decision as we think the evidence warrants and the court below should have rendered, giving due deference to the decision of the chancellor, who had the advantage of observing and hearing the witnesses as they testified. Rucker v. Fowler, Mo.App., 233 S.W.2d 809; Bowman v. Kansas City, Mo.Sup., 233 S.W.2d 26; Handlan v. Handlan, Mo.Sup., 232 S.W.2d 944.

Plaintiffs' first amended petition, upon which the case was tried, after describing the various real estate holdings of the parties, states that the natural flow and drainage of surface waters, which collect on the land of defendants, was toward the south and east and away from the land of plaintiffs and that the land of plaintiffs was protected from the drainage of surface water from defendants' land by a natural ridge, higher than the surrounding terrain, which ridge ran across defendants' land; that in July, 1948, defendants caused to be constructed certain ditches through the natural ridge that protected their land from surface water, which caused such water to be discharged upon the land of one Nathan Sims in greatly increased volume, and from there to flow in a southwesterly direction onto the land of plaintiffs to their damage, on some by direct flowage, on others indirectly and by backing up from overfilled natural water courses. They asked the court that defendants by permanently enjoined and prohibited from collecting, diverting and discharging said waters onto the lands of others in increased volume in such a manner that it is caused to be discharged upon the lands of plaintiffs at a place where it would not naturally have flowed.

Defendants' answer, among other things, admits that in 1948, they recleaned a ditch on their land which had been there for as long as 40 years but that the water flowing through said ditch flows in its natural course and is by the ditch discharged into a slough which is the natural drain and water course, the ditch and the water course that it empties into, both being upon the lands of defendants, and that the water through the ditch and the slough naturally drains in that direction.

It is then asserted that for more than 40 years, last past, this ditch has been in existence on the land of these defendants substantially similar to its present condition, and the surface water accumulating on defendants' lands had during that time drained through said ditch into the slough; that for all these years, this ditch has been maintained openly and notoriously, in the community where plaintiffs live and its use has been adverse, continuous and uninterrupted, and therefore plaintiffs are barred by the Statute of Limitations from now interfering therewith.

They further assert that the land of defendants is agricultural in nature, without drainage is swampy and wet, and that the ditch was originally constructed and later maintained for the purpose of draining and protecting these lands for agricultural purposes, and that the ditch leads 'to a hollow depression, natural drain, natural water course, or other outlet located upon defendants' lands' and that by the provisions of Sec. 12, 455 Mo.R.S.A., R.S. 1949, Sec. 244.010, these defendants have the absolute right to construct and maintain said ditch.

The transcript is large and the witnesses numerous. Much of the testimony was undisputed. We will state the facts as we find them from the entire record.

Defendants owned a farm in Stoddard County of about 7o acres. There is a difference in the description of this land in the transcript, as agreed to by the parties, and the description as set out in the decree of the court. But as we view it, this irregularity does not affect the determination of this case. The plaintiffs own various farms, west and southwest of defendants' land, in Stoddard and Bollinger Counties. The nearest of plaintiffs' land was three-fourths of a mile from defendants and the most distantly located was approximately three miles. Running from northeast to southwest across the northern part of defendants' land was a public road and also parallel to the road, but north and west of it was a natural water course known as Cypress Slough. On the southwest side of Cypress Slough was what was called a sand ridge, less than three feet in height. Whether the road is located on this ridge does not definitely appear, but the road, the ridge and the slough all ran across the northwestern part of defendants' land, from northeast to southwest. The natural drainage of Cypress Slough was to the southwest and toward plaintiffs' land. Part of it, at least, eventually emptied into drainage ditches 112 and 113. The water from these ditches flowed farther west into Castor River.

On defendants' land southeast of the slough, sand ridge and public road was a low place where surface water would accumulate. Some 40 years ago a V-shaped ditch had been constructed from this low place on defendants' land in a generally northwesterly direction through the sand ridge through a culvert under the road to Cypress Slough and the surface water from the low place on defendants' land followed this ditch and emptied into that natural water course. The water then found its way naturally in a southwesterly direction through drainage ditches etc., into Castor River, as heretofore stated.

This ditch at the time of its construction was about 4 1/2 feet deep where it crossed the sand ridge. Through the years this ditch would occasionally become partially filled with vegetation, sliding sand, etc. At various times prior to 1948, it had been cleaned out sometimes with the use of a horse and scraper, at other times by a tractor and grader, but at practically all times, it had been sufficiently deep to drain the water from defendants' land into Cypress Slough with the exception of from three to five acres. In 1948, defendants employed a man with a tractor and drag line to clean out this ditch again. The old ditch was followed except to partially straighten it at a corner further back on defendants' land, which was immaterial, as we view it, for a decision of this case.

There is a dispute as to the acreage of the watershed drained by this ditch. Some placed it at 500 or 600 acres, and others at 160 to 200. Not all of it was on the lands of defendants and as far as the record shows, there had never been any change in the watershed except the acreage might have been somewhat reduced when Highway 25 was constructed, which ran north and south and some distance east of defendants' land. There is some testimony that there was a natural drainage from defendants' low land toward the south and there was also some testimony that the natural drainage was toward the north and west, but the evidence greatly preponderates against any natural drainage toward the south and if there was any natural drainage to the low land prior to the construction of the ditch referred to, it appears to have been toward the north and west.

A man by the name of Strobbel owned a farm joining the defendants on the south and the evidence shows that between his land and that of defendants, there was another sand ridge which caused most of Strobbel's land to naturally drain toward the south and west but a few acres drained toward the land of defendants, and thence into Cypress Slough. The evidence further showed that in January, 1949, the lands of the plaintiffs were partially inundated by high water coming down the natural water course, which would be from the direction of Cypress Slough, into which the ditch in controversy emptied. The entire ditch, the sand ridge where it crossed and that part of Cypress Slough into which it emptied, were all on the lands of defendants. There was also evidence that water would overflow from another ditch known as No. 17, running in an easterly and westerly direction south of the lands of defendants and plaintiffs, as well as from drainage ditches 112 and 113, which ran through some of the lands of plaintiffs, and also back water from Castor River.

The evidence as to the state of the high water is comparative, that is, part relates to a high water period in June, 1945, before the ditch was opened up with the drag line and the...