Applegate v. Franklin
84 S.W. 347
Mo. Ct. App.
1904
Check Treatment
REYBURN, J.

(after stating the facts). — Ignoring and passing by, without discussion, various charges of infirmities in the record predicated on minor and subordinate features developéd at the trial, not arising out of the principles controlling the case, nor likely to recur at any future hearing, and confining consideration to the questions peculiar to the case and decisive of it, the first and dominant proposition advanced by appellant is, that the imperative instruction asked on his behalf at close of the plaintiff’s testimony should have been given. The land submerged by the lake water was private proрerty, title to which had been parted with by the State and county to private individuals, including the parties hereto or their predecessors in title and *301had been so transferred in the nsnal subdivisions distinctively as lаnd by townships, sections and subdivided sections as other wet lands, distinguished as swamp lands. The testimony disclosed without contradiction that this volume of water was but a reservoir in the depression formed by the cоnvulsions of nature described, in which water assembled, varying, in magnitude and extent' with the seasons, without possessing any of the attributes characterizing a public or navigable body of water. [Hoyt v. City of Hudson, 27 Wis. 656; Gould, Waters, par. 83, 109; Farnham, ‍​​​‌‌‌​​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​​​​​​‌​‌‍Waters, p. 127; Wagner v. Railroad, 2 Hun 633; Luther v. Winnismmet Co., 9 Cush. 171; Hubbard v. Bell, 54 Ill. 110; Olson v. Merrill, 42 Wis. 203.] In its natural and ordinary condition it was not inherently navigable nor even susceptible of use for commerce, nor suitable or valuable as flotage for rafts, flatboats, lumber or small light-draft vessels, the reduced test adopted by some authorities for the administration of the right of the public to the free and uninterrupted use and enjoyment of inland bodies for transportation, commerce and navigation. [Stuart v. Clark’s Lessee, 2 Swan. 9; s. c., 58 Am. Dec. 49; Morgan v. King, 91 Am. Dec. 58; Brown v. Chadbourne, 50 Am. Dec. 641.] Nor was this lake a great pond or public body of water, to be held for the common and public use of аll, the littoral owners upon which could have no right of property in the submerged soil beneath, below the natural low-water stage, as were the lakes involved in other decisions, in most of which Statеs, however, such lakes had been the subject of legislative protection. [Potter v. Howe, 141 Mass. 357; Ternald v. Knox Woolen Co., 82 Minn. 57; Priewe v. Wisconsin, etc., Co., 33 L. R. A. 645, 93 Wis. 534.]

Plaintiff declared on no rights accruing to or possessed by him as a riparian owner, the trial petition set out for recovery, his ownership, ‍​​​‌‌‌​​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​​​​​​‌​‌‍the ancient existence of the lake, the establishment and maintenance of his valuable fisheries and the construction by defend*302ant for drainage of thе lake for agricultural purposes, of a very large, commodious ditch without legal warrant, maliciously, wantonly and recklessly upon defendant’s portion of the lake, and into the land and water of that portion of the lake owned by plaintiff, whereby plaintiff was deprived of his fisheries and his business ruined. The present contention, therefore, that defendant had no lawful right to impair or destroy the interest or the use of any other riparian owner to the water, ■ might be justly disposed of, as a departure from the . issues joined, and beyond the range of the plaintiff’s declaration of his right of action. But, assuming plaintiff had based his right of recovery upon such littoral rights, the proof failed to sustain them. As stated, this mass of water was exhibited, as its diversified stages, as useless, unfit for commercial flotage and, therefore, not being subject to any servitude of such public use and common right of passage, it can not be perceived why it is not degraded to a condition not distinguishable, in legal contemрlation and effect, from mere surface water and to be dealt with and treated as such. The doctrine of the civil law that the owner of the upper or dominant estate had a natural right оf servitude in the lower or servient estate, to discharge all waters falling or accumulating upon his land as more elevated, upon or over the land of the servient owner, as in a state of nаture, has been repudiated in Missouri, and the common,law doctrine established, that no such natural easement or servitude exists in favor of the owner of the higher ground, and the proprietor of the lower ground may, if he chooses, lawfully obstruct or divert the natural flow of such water and in so doing may turn it back, on, off or over the lands of other proprietors without liability for such obstruction or diversion. [Abbott v. Railroad, 83 Mo. 272; Jones v. Hannoran, 55 Mo. 462; Benson v. Railroad, 78 Mo. 504; Railroad v. Schnider, 30 Mo. App. 620.] By analogy, the foregoing cases and like decisions in this State are author*303ity for and uphold the proposition that defendant was warranted in improving his lands for any desirable purрose, and it was immaterial that the effect of such improvement might change or lessen the volume of water previously discharged, diffused or situated ‍​​​‌‌‌​​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​​​​​​‌​‌‍upon the lands of adjoining proprietors tо their injury by its diminution or modification provided the drainage was performed in reasonable and careful manner, the consequent loss thereby inflicted on plaintiff as depicted in his petition being damnum absque injuria. Defendant was but lawfully using and changing the face and surface of his own property, for which, properly and prudently performed, no action would lie at plaintiff’s instance. The decision invoked frоm another jurisdiction in which plaintiff relied on to maintain a position, as shown outside the fair range of his pleadings and the issues, which defendant was summoned to rebut at the trial, upon an analysis presents but few features portrayed in the case under consideration and is marked by clear distinctions. The conclusions, summarized in the opinion alluded to, were that the body of water there involved, whilе not navigable in the technical legal sense, was navigable in the common acceptance of the term; that while the land underlying the waters of the lake was subject to grant by the State, сomplainants established title by lines terminating at low-water mark, but "as riparian owners they were possessed of all rights incident to such ownership and that the defendant had failed to locate thе lands he claimed under the lake by proof, and the decision arrived at upon such widely divergent state of facts, that complainants, as riparian owners, were entitled to have defendаnt restrained by injunction from any efforts to drain the waters of the lake, affirming the view of the chancellor. [Webster v. Harris, 69 S. W. 782.]

2. The trial court admitted much testimony that should have been excluded, which could nоt have failed *304to operate upon the minds of the jury to the grave prejudice of defendant. The proof respecting the quantity and number of fish, left dead on the former bed ‍​​​‌‌‌​​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​​​​​​‌​‌‍of the lake after reliction, did not tend to establish any of the legal issues involved, and should not have been permitted to go before the jury. As ferae naturae, plaintiff’s property rights in such fish were transitory, and qualified, attaching to such restricted degree, only while they were in the waters above his land. [State v. Blount, 85 Mo. 543.]

The testimony of the value of plaintiff’s fishing equipment and paraphernalia in the absence of employment for thеm ensuing, infused into the inquiry of the estimate of plaintiff’s damages and the range of his recovery, an element without proximate connection with the act of constructing the drainage canal. Thе plaintiff was entitled to recover such damages only as were the proximate and natural consequences of defendant’s act, if unlawful, but not for results collateral and incidental; the fishing tackle of plaintiff was not affected in quality or market value after its use at the lake had been terminated. [Insurance Co. v. Boon, 95 U. S. 130; Fontaine v. Schulenbert, etc., Co., 109 Mo. 55, 18 S. W. 1147.] The proof tendered and received respecting рrospective damages was improper; plaintiff’s recoverable damages, if any, were defined and determined at time he instituted suit, and he was limited in recovery to those then accruеd. Inquiry into the future market price of fish and probable increased demand for such commodity at time of the trial should not have been tolerated, especially as plaintiff ‍​​​‌‌‌​​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌‌​​​​​​‌​‌‍had sold his lands immediately after beginning suit and, therefore, has parted with any interest in the fisheries for more than two years prior to time of trial. [Benson v. Railroad, supra.] There was no evidence introduced tending in the remotest degree to establish any oppressive or malicious conduct or intent on part of defendant, and, as the court properly determined, no punitive *305or exemplary damages were recoverable and, therefore, statements of plaintiff individually and of other witnesses on his behalf, descriptive of his mortification, indignation and his lacerated, feelings, as well as allusions to the wealth, actual or reputed, of defendant should have been rigorously excluded from the jury, as wrongful and very hurtful. [Buckley v. Knapp, 48 Mo. 152.] Defendant should have been permitted to prove that the construction of the drainage ditch was performed after and under an agreement with the county of Pemiscot; he was entitled to justify his conduct and demonstrate his good faith by such contract, the' purpose of which was the reclamation and restoration for agriculture and habitation of the lands beneath the surface of the lake waters. The proof tendered on defendаnt’s behalf of the extent of public benefits conferred on adjacent lands by the work and the probable effect upon'the health and wellbeing of the residents of the county was also properly admissible. Courts take judicial cognizance of the fact that overflows and floods are followed by disease and that swamps are detrimental to public health. [Morrison v. Morey, 146 Mo. 543, 48 S. W. 629.]

It is aрparent that the only lawful right of action disclosed in plaintiff was restricted to recovery for the lawful damages, consequent on the trespass manifested by the testimony in the encroachment of the dredge boat on plaintiff’s land and the excavation of the soil of plaintiff.

The judgment is reversed and cause remanded.

Bland, P. J., concurs; Goode, J., absent.