16 Mo. App. 485 | Mo. Ct. App. | 1885
delivered the opinion of the court.
It has been for some years past a mooted question in this state, whether the rights of land owners, in regard to the flow of surface water over their land, including the control and diversion of such water to the injury of adjoining owners, should be determined by the rules of the common law or by the rules of the civil law.
This question must be considered to be set at rest by the exhaustive opinion, delivered by the supreme court at its present term in the case of Abbott v. Kansas City, St. Joe and Council Bluff Railroad Co. In that opinion the supreme court reviewing its former ruling unanimously declares that the common law of England, haying been adopted by statute as the rule of action and decision in this state, any law, usage or custom to the contrary notwithstanding, must be the governing rule on this subject as on all others. It overrules the case of McCormick v. Railroad Co. (70 Mo. 359), and Shane v. Railroad Co. (71 Mo. 237), as far as the same are in conflict with that view, and adheres to, and reinstates the common-law doctrine, recognized heretofore as controlling on that subject by a long course of uniform decisions. Clark v. Railroad Co., 36 Mo. 224; Imler v. Springfield, 55 Mo. 119 ; Jones v. Hannovan, 55 Mo. 462; McCormick v. Railroad Co., 57 Mo. 437 ; Hosher v. Rail
The action is one, which in one count seeks to recover •damages at law for the flooding of plaintiff’s land; and in another count seeks equitable relief against defendant, who is charged with having erected a dam and constructed a ditch, diverting the natural flow of water from its course to plaintiff’s injury.
The suit was instituted against two defendant land owners, who answered separately, defendant Hemsath’s answer being the general issue and the statute of limitations. Upon the trial of the legal issue before a jury, and after the close of the testimony plaintiff dismissed as to defendant Linnemann, and the case was submitted to the jury on the legal issue against Hemsath, the respondent, alone. The jury found a verdict for the defendant, and subsequently the equitable cause of action being submitted to the court upon the same testimony, the court found the issues likewise for defendant, and dismissed plaintiff’s bill.
As the right of action in cases of this character is controlled by the particular facts of each case, a detailed review of the testimony is essential to determine whether plaintiff has shown himself entitled to either legal or equitable relief. The testimony, which is almost wholly free from conflict, seems to establish the following facts with reasonable certainty: The Cork Hill or Caulk Hill Branch is a dry ravine, from one-half to three-quarters of a mile in length, and draining in connection with other small ravines, which empty into it, a hilly surface of considerable extent. The water coming down this ravine is the result of rains and melting snows, and has washed out a
It appears from a survey made by order of the trial court, a plat whereof has been offered in evidence and forms part of the record in this cause, that the lands of plaintiff and defendant lie in the bottom, at and near the foot of the hills from which the water comes through this branch or ravine, and that the location of lands of the parties respectively, and of the ditch in controversy is as-shown by the following sketch : —
About fifteen years ago Buse, defendant’s grantor, built a levee or dam at the place where the branch left the bluffs, and also constructed a ditch next to the county road to keep the water from his own lands. This ditch the defendant subsequently continued, and about seven years ago, with the consent of Schneider, he completed it so as to carry the waters directly into the slough or pond. There was testimony tending to show that during the last few years the water in the pond was higher than it had been in former years; that it flooded the plaintiff’s land and caused him serious injury. But whether this rise in the water in the pond was due to its gradual filling up, by brush and logs and the detritus of the neighboring bluffs, or to the fact that the waters reached it by a more direct route than formerly the testimony left in doubt.
The rule of the common law on the subject of surface water was thus stated in McCormick v. Railroad Co. (57 Mo. 483): “ 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
Nor is there anything in the record which would justify us to disturb the deeree of the court in dismissing plaintiff’s bill. That the jury have by their verdict negatived any injury for which defendant was responsible would tend to show that the action of the court was correct, even regardless of the fact that all the parties were not before it to enable it to make a final decree. A full and careful examination and analysis of the testimony has led us to the conclusion that the main cause of the plaintiff’s injuries is a force which is beyond the remedial process of courts of
With the concurrence of all the judges the judgment is affirmed.