Zook v. City of Louisiana

• Decision Date: 09 January 1929
• Docket Number: No. 20556.,20556.
• Citation: 12 S.W.2d 518
• Parties: ZOOK v. CITY OF LOUISIANA.
• Court: Missouri Court of Appeals

12 S.W.2d 518

ZOOK v. CITY OF LOUISIANA.

No. 20556.

St. Louis Court of Appeals. Missouri.

January 9, 1929.

As Modified, on Denial of Rehearing, January 22, 1929.

Appeal from Louisiana Court of Common Pleas; E. B. Woolfolk, Judge.

"Not to be officially published."

Action by Martha Zook against the City of Louisiana, Missouri. Judgment for plaintiff, and defendant appeals. Affirmed.

Davis Benning, A. J. Murphy, Jr., and F. D. Wilkins, all of Louisiana, Mo., for appellant.

May & May, of Louisiana, Mo., for respondent.

BECKER, J.

Plaintiff recovered judgment in the sum of $377 against the defendant in her action for damages alleged to have been sustained by her by reason of defendant collecting large quantities of surface water and negligently diverting same from its natural course and casting same onto the property of plaintiff. The defendant in due course appeals.

Appellant here on appeal urges that plaintiff's petition fails to state a cause of action. This point is without merit.

It is sufficient for the disposal of this assignment of error to note that the petition alleges that the plaintiff is the owner of property located at the southeast corner of Fourteenth street and Georgia street in the city of Louisiana; that Georgia street runs east and west and Fourteenth street runs north and south; that the street immediately north of Georgia street is Tennessee street, and the next beyond is that of Kentucky street; that from Georgia street up to Kentucky street there is a steep incline up Fourteenth street; and that for a number of years prior to the fall of 1925 the defendant had maintained a cobblestone gutter some 10 feet wide in the center of said Fourteenth street, on either side of which a roadway was maintained. These roadways were so graded that the surface water on Fourteenth street within said two blocks, and the higher areas thereabout, was collected into said cobblestone gutter and carried therein to the point where Fourteenth street intersects Georgia street, where it was conveyed beneath Georgia street by a tile some 2 feet in diameter; that said stone gutter was adequate to and did take care of and convey said water and did keep it confined to a definite course as aforesaid, and thereby protected plaintiff's property from any water flow; that in the fall of 1925, by ordinance, the defendant graded Georgia street and paved the center 30 feet thereof; that the grade established was such that at its intersection with said Fourteenth street the grade was lowered about 3 feet, which necessitated the removal of the large tile in the center thereof through which passed the water collected in the cobblestone gutter in the center of Fourteenth street from Kentucky street to Georgia street; that when Georgia street was graded and paved the defendant negligently raised the grade of Fourteenth street along plaintiff's property several feet by filling in the cobblestone gutter in the center of Fourteenth street from Tennessee street to Georgia street, thereby preventing said stone gutter from carrying off the water which was collected in the stone gutter in the center of Fourteenth street extending north of Tennessee street to Kentucky street, without providing any gutter or other adequate means for conveying or disposing of said water when it reached the intersection of Tennessee street with said Fourteenth street, and thereby diverted the water thus collected in the stone gutter in Fourteenth street from Kentucky street to the north line of Tennessee street to the east side of Fourteenth street, and cast it in collected form with great force and volume onto plaintiff's property.

Plaintiff's petition must be viewed as stating a cause of action within that class of cases wherein municipal corporations are held liable where, in the construction of its streets, it collects surface water out of its natural course by means of drains or conduits and causes the water thus accumulated to be discharged in a body upon adjacent property. It is a settled principle that water cannot be collected into artificial channels, the natural flow changed, the volume increased, and no outlet provided. It is one thing to cast off surface water, as a consequence of the grading of a street, and quite another thing to change the natural flow, gather it in artificial channels, increase the volume of water, and cause it to flow upon private property in an increased...