Bungenstock v. Nishnabotna Drainage District

64 S.W. 149, 163 Mo. 198, 1901 Mo. LEXIS 352
CourtSupreme Court of Missouri
DecidedJune 11, 1901
StatusPublished
Cited by16 cases

This text of 64 S.W. 149 (Bungenstock v. Nishnabotna Drainage District) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bungenstock v. Nishnabotna Drainage District, 64 S.W. 149, 163 Mo. 198, 1901 Mo. LEXIS 352 (Mo. 1901).

Opinion

BURGESS, J.

This is an action for damages claimed to have arisen by reason of the improper construction by defendant, a corporation organized under the general laws of this State for drainage purposes, of a drainage ditch through plain[204]*204tiff’s land. The petition, after alleging the incorporation of defendant, and that plaintiff is the owner of the lands through which the ditch runs, proceeds as follows:

“That said ditch or drain enters plaintiff’s land and crosses through and over the same as follows:

“Commencing in said Nishnabotna river at a point one chain east and seven chains south of the northwest corner of the northeast quarter of section 4, township 63 of range 41, in said Atchison county, Missouri, thence running south two degrees west, 21.21 chains to intersect said river on the west line of said quarter section across the lands of this plaintiff.

“That said drain or ditch was dug and constructed during the year A. D. 1897, by defendant. That defendant still owns, maintains and operates said drain or ditch. That said drain or ditch, through and across plaintiff’s land, is about eight feet deep and about twenty feet wide at the top and divides plaintiff’s land into two tracts. That by reason of the improper location and unskillful construction of said ditch, the channel or bed of the Nishnabotna river where it passes through the lands of the plaintiff above described, has been so dammed up as to form a stagnant pool of water, of the full width of said channel and for a distance of two miles in length. That water stands therein during the entire year and having no current becomes and is foul and noisome, and by reason of the accumulation of stagnant water in said river channel, foul and noisome vapors arise therefrom and the atmosphere in and about said channel and about the residence on said premises has become and is poisoned and is thereby rendered unwholesome and unhealthy. That by reason of the improper location and unskillful construction of said ditch foul water is caused to accumulate in the plaintiff’s cellar and to render same unfit for use, and foul water is caused to penetrate into plaintiff’s well and to render the water thereof unwholesome and unfit for use. That by reason [205]*205of the location and construction of said ditch as aforesaid, and the damming up of the channel of said river as aforesaid, water overflows and accumulates upon the pasture lands of the plaintiff, and causes the soil thereof to become and remain wet and injures the grass and timber growing and standing thereon, wherefore by reason of the premises aforesaid the plaintiff says that he is damaged in the sum of five thousand dollars, for which sum, together with the costs of suit, he prays judgment.”

Eor another and second cause of action the petition alleges that defendant during the years A. D. 1896 and 1897, for the pretended purpose of draining its said land and to straighten and widen the Nishnabotna river, did construct and maintain a ditch, or drain, and dyhes, through and across the lands of plaintiff, as well as the lands of other persons. That said ditch or drain enters plaintiffs land and crosses through and over the same as follows:

“Commencing in said Nishnabotna river at a point one chain east and seven chains south of the northwest corner of the southeast quarter of section four, township sixty-three of range forty-one, in said Atchison county, Missouri, thence running south two degrees west, 21.21 chains to intersect said river on the west line of said quarter section across the lands of this plaintiff. That said drain or ditch was dug and constructed during the year A. D. 1897, by defendant. That defendant still owns, maintains and operates said drain or ditch. That said drain or ditch, through and across plaintiff’s land, is about eight feet deep and about twenty feet wide at the top and divides plaintiff’s land into two tracts; that it is impossible for plaintiff to get to his land lying west of said drain or ditch without crossing said drain or ditch, and that defendant has failed, neglected and refused to put in a crossing or bridge across said drain or ditch for the use of plaintiff, and still refuses and neglects to put in said bridge or crossing, and that plaintiff will be [206]*206put to great expense, time and labor, to build and construct said bridge, to plaintiff’s great damage, in the sum of five hundred dollars; that the damages awarded plaintiff by the commissioners appointed to assess damages, were damages for the right of way and included no other damages than the damages arising from the value of the land for said drain or ditch. Wherefore plaintiff asks judgment for the sum of five hundred dollars and for his costs.

“Plaintiff for another cause of action states that defendant, its agents, servants and employees in the construction and making of said ditch or drain during the time aforesaid, wantonly and without cause, did take, destroy and áppropriate to its own use the following property, belonging to plaintiff: two hundred and twenty-five feet of lumber, worth six dollars; four hundred pounds of barbed wire, worth fifteen dollars; one hundred fence pósts worth ten dollars; seventy-two trees, consisting of oak, walnut and ash, worth five dollars per tree, three hundred and sixty dollars. That the only pasture plaintiff had for his stock was on the said quarter section through which said ditch or drain was constructed, and by reason of the carelessness and negligence of defendant, its agents, employees and servants in leaving plaintiff’s fence down so plaintiff’s stock could stray off of plaintiff’s premises, and said plaintiff’s stock did so stray off, and was put up, and plaintiff was compelled to pay out large sums of money to get his stock and had to pay for damages his said stock had done to the amount and to the damage of plaintiff in the sum of sixteen dollars, and all caused through negligence, carelessness and wrong of this defendant, and that by reason of the gross negligence, carelessness and wrong of defendant, its agents, employees and servants in leaving plaintiff’s said fence down as aforesaid, plaintiff was compelled to lose the entire use of thirty acres of good pasture land worth four dollars per acre and to plaintiff’s damage one hundred and twenty [207]*207dollars. That defendant entered said lands of plaintiff with said ditch or drain and where defendant left said plaintiff’s land with said ditch or drain, defendant, is agents, employees and servants, wrongfully, negligently tore down plaintiff’s fencing and left the same down so that stock strayed into plaintiff’s field and destroyed plaintiff’s crops to plaintiff’s damage in the sum of one hundred and fifty dollars. That defendant refuses to pay for the destruction, taking and appropriating to its own use of plaintiff’s property, or for the damages done to plaintiff by reason of the wrongful acts of defendant. Wherefore, plaintiff says he has been damaged in the aggregate in'the sum of six hundred and seventy-seven dollars, for which he asks judgment and for costs.”

The answer of the defendant, caption being omitted, is as follows:

“Now comes the defendant and for answer admits that it is an incorporation organized and incorporated in Atchison county for drainage purposes, and states that it was so incorporated in January, 1892. Denies that the plaintiff is the owner of the southeast quarter of section three in township sixty-three of range forty-one, or that he has any houses, cellars, wells or improvements thereon.

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Cite This Page — Counsel Stack

Bluebook (online)
64 S.W. 149, 163 Mo. 198, 1901 Mo. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bungenstock-v-nishnabotna-drainage-district-mo-1901.