132 Mo. App. 229 | Mo. Ct. App. | 1908
This is a suit to recover damages for the alleged wrongful act of defendant in causing surface water and debris to overflow plaintiff’s property. The plaintiff is the owner of a part of lot twenty-six in Highbury Park Kansas City, which fronts east on Myrtle avenue. The defendant is the owner of lot twenty-five in said block which fronts west on Mersington avenue. A line running north and south divides the property of the respective parties, there being no alley between them. Prior to the controversy there was a ditch about three feet wide and two feet in depth near the said dividing line leading north from Twenty-seventh street which was situated south of the south line of said lots. The natural slope of the ground is to the south and southeast.
In the spring and summer of 1905, the defendant filled in the back of his lot close up to the dividing
At the close of plaintiff’s case the defendant asked the court to instruct the jury to return a verdict in his favor, which the court overruled. The cause was submitted to the jury on certain instruction given at the instance of the plaintiff. The verdict and judgment were for the plaintiff and the defendant appealed. The law of the case is well settled in this State that the owner may occupy and improve his land as he may see fit, by grading or filling up low places. “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 waters which had previously flowed upon the land of the adjoining proprietors to their inconvenience or injury.” [McCormick v. Railroad, 57 Mo. 437.] , It is a general rule that the owner may protect his land from the overflow of surface water notwithstanding the effect may be to cast it upon his neighbor’s land. But he has no right to allow water to collect on his own premises and then discharge it at one point in a body onto that of his neighbor’s land. [Ready v. Railroad, 98 Mo. App. 467.]
As we understand the case defendant did not suffer surface water to collect on his land and then discharge it in a body onto that of the plaintiff. What he did
Reversed.