Bader v. St. Francis Levee District, 110 Mo. App. 599

Bader v. St. Francis Levee District

110 Mo. App. 599 | Mo. Ct. App. | 1905

GOODE, J.

— This- an action for damages for the flooding of plaintiff’s land in the year 1903, the consequent destruction of fifteen acres of meadow and preventing plaintiff from cultivating one hundred and five acres of land which otherwise he would have cultivated. Plaintiff for many years has owned a farm in : Pemiscot county on the shore of Half Moon lake. Prior to 1893, this lake was drained by Taylor bayou, a natural watercourse having well defined blanks and emptying into the Mississippi river. In 1893, the defendant levee district, an incorporated body, constructed a levee to prevent the country from being overflowed by the Mississippi river, and in so doing built a solid earthen embankment across Taylor bayou which prevented the bayou from draining the lake. In 1903, high waters prevailed in that part of the country and Half Moon lake rose above its banks and overflowed the tillable land of the plaintiff’s farm. It is alleged that the overflow was due to the damming up of the waters by the embankment built across Taylor bayou, and there was evidence to prove this was true.

Among other instructions the court told the jury that if they believed plaintiff’s lands were subject to *602overflow from the waters of the Mississippi river unless protected by the levee and there was, during the year 1903, an overflow from the Mississippi sufficient in volume to cover the lands of the plaintiff if they were not protected by the levee, and that said Mississippi overflow came so late in the season that plaintiff could not have cultivated his land in 1903, the verdict should be for the defendant. This instruction was altogether erroneous. It lost sight of the gravamen of the case, which is that the levee should have been so built as not to obstruct the draining of Half Moon lake and still have protected plaintiff’s farm from the overflow of the Mississippi river. Plaintiff was one of the parties who was taxed for the levee and expected to be benefited by it. What benefit would he receive by being protected from the overflow waters of the Mississippi, if the levee was built so as to turn the overflow waters of Half Moon lake on his farm 1 The very gist of the case was that there should have been such a construction that the bayou would have continued to drain the lake. The petition avers the submergence of plaintiff’s farm by the high water in the lake was caused by the negligent and improper construction of the levee. Though the Mississippi river would have overflowed plaintiff’s farm that year had there been no levee, it does not follow that he should be denied a recovery on account of the improper construction of the levee.

The instruction under review is scarcely defended, but it is insisted that the verdict is so obviously for the right party that the judgment ought to be affirmed. The argument in support of this proposition is that the plaintiff, as well as other witnesses, testified that Taylor bayou, between Half Moon lake and the point where the levee crossed it, had become so filled with sand and debris that it would not have drained the lake even if the levee had been open across the bayou. But the plaintiff testified, and he was corroborated, that the *603filling up of the bayou was due to tbe construction of tbe levee across it — that the solid embankment stopped the current of the waters of the bayou so that sand and mud accumulated between the embankment and the lake, choking the channel. If this was true, the failure of the bayou to drain Half Moon lake and the consequent overflow of plaintiff’s land when the lake rose during the flood, were caused by closing the channel of the bayou with the levee. But it is said that this filling of the channel happened years before 1903 and, therefore, plaintiff had no right to recover for damages sustained that year. We would consider this argument if the Statute of Limitations had been interposed in defense of the action, but it was not. In disposing of the case as it is presented to us we must hold that prejudicial error was committed.

The judgment is reversed and the cause remanded.

All concur.