Beauchamp v. Taylor

132 Mo. App. 92 | Mo. Ct. App. | 1908

BLAND, P. J.

(after stating the facts). — 1. It is well-settled law in this State that the owner of lower or servient ground may, if he chooses, lawfully obstruct or divert the natural flow of surface water, may turn it back, or off, or over the lands of other proprietors, without liability for such obstruction. [Applegate v. Franklin, 109 Mo. App. 293, 84 S. W. 347, and cases cited.] On the other hand, it is equally well settled that any obstruction to the flow of water in a natural watercourse, resulting in injury to another person, furnishes a good cause of action for the resulting damages, however carefully the obstruction may have been made. [Webb v. Carter, 121 Mo. App. 1. c. 155, 98 S. W. 776; Edwards v. Railroad, 97 Mo. App. 103, 71 S. W. 366.] Both of these legal propositions were properly defined by instructions given to the jury, and the court also properly defined by instructions what constitutes, a watercourse and what is surface water in legal acceptance of these terms.

Plaintiff offered evidence tending to show that he could not protect himself from the water caused to be backed upon his land by the levee. Defendant offered evidence tending to show that he could, at an expense of from $15 to $30, have drained the back water off his land. On this evidence, the court gave instructions asked by both parties, to the effect that if plaintiff could not have protected himself from damage by draining the water off his land at a reasonable expense, he was entitled to recover; but was not entitled to recover if he could have drained the water off at a reasonable expense. Both parties adopted this theory of law of the case and are concluded thereby.

Instruction number 8 instructed the jury as follows, to which defendant saved an exception:

“The court instructs the jury that even though you find from the evidence in the cause that the waters which collected on plaintiff’s land west of and adjacent to the levee in controversy, if any, were surface waters, and even though you should further find that there was and is no natural watercourse extending through the low lands on plaintiff’s tract across the division line between plaintiff’s said tract and defendants’ lands into defendants’ lands, still if you further find that said levee caused the waters during 1902 and 1903 to accumulate on plaintiff’s land and damage his crops for said years, then your verdict must be for the plaintiff, if you further find that plaintiff could not have, at a reasonable cost, drained said waters off from such overflowed area,”

While the owner of land may improve the same by obstructing or diverting surface water, he may not do so in a reckless manner, resulting in injury to another. [Cox v. Railroad, 174 Mo. 588, 74 S. W. 854; Webb v. Carter, 121 Mr. App. 1. c. 154.] The instruction, however, does not predicate plaintiff’s right to recover on the theory that defendants recklessly obstructed the surface water, resulting in injury to plaintiff, but authorizes a recovery if defendants obstructed it at all, however careful he may have been in doing so. In McCormick v. Railroad, 57 Mo. 1. c. 437, the Supreme Court said: “The general rule, however, is that either municipal corporations or private persons may so occupy and improve their land, and use it for such purposes as they may see fit, either by grading or filling up low»- places, or by erecting buildings thereon, or by making any other improvement thereon, to make it fit for cultivation or other profitable or desirable enjoyment; and it makes no difference that the effect of such improvement is to change the flow of the surface water accumulating or falling on the surrounding country, so as to either increase or diminish the quantity of such water, which had previously flowed upon the land of the adjoining proprietors to their inconvenience or injury.” The instruction as to surface water is diametrically opposed to this rule and is therefore erroneous.

2. Defendants demurred to the evidence and here insist that their demurrer should have been given. Their contention is that plaintiff purchased the land with knowledge that defendants had constructed and were maintaining the levee and therefore purchased it burthened with the levee. If the levee was not a lawful structure, that is, if it obstructed the flow of water in a natural channel, it was a nuisance, and while plaintiff cannot sue and recover for the erection of the nuisance, he is clearly entitled to recover any damage he may have-sustained by reason of its maintenance.

The judgment is reversed and the cause remanded.

All concur.