125 Mo. App. 592 | Mo. Ct. App. | 1907
Plaintiff sought to enjoin defendants from diverting the course of certain watercourses and causing them to flow onto and across his land to his irreparable damage. The trial court found for the defendants and dismissed plaintiff’s bill.
The defendants insist that this court must affirm the judgment on the record as presented by the plaintiff. Defendants’ point is based on the claim that this is an equity case, wherein an appellate court is not bound by the finding of the trial court, and that, necessarily, we must have presented to us the entire evidence that we may make such disposition of the cause as we may deem to be proper. The plaintiff has not brought up the evidence as heard by the trial court. He has merely stated what the evidence tended to prove.
But he claims that it is an action at law and on that ground claims his record to be sufficient. We have no doubt that it is an action in equity. It is true that in an Amended petition he asked for money damages in addition to his prayer for an injunction. But the original petition was one merely for injunction. His amended petition, upon which the case was tried, is not a petition in damages. After having stated at length the acts and doings of defendants which he seeks to restrain, the following is the concluding portion of his complaint:
“That defendants are now engaged in widening and enlarging said ditch so that the waters of the entire stream of Joplin creek will be diverted from its natural .course and run along and over the said real property of this plaintiff. That if said diversion of the water of said Joplin creek is not prevented and said defend
But plaintiff claims that the trial court misconceived, the nature of his action and that it erred in “ignoring” his claim for damages. The court did not overlook the claim for damages more than plaintiff himself did, for we find that he asked no declaration of law from, the court on that subject and that no complaint of that nature is made in the motion for new trial. There is no doubt that there are instances where one may bring an action at law for damages and add
The action being clearly one in” equity and the record presented not containing the evidence as heard by the trial judge, we are not warranted in disturbing his conclusions, and there being no error in the record proper, we affirm the judgment.