Cook v. Rupp

565 S.W.2d 833, 1978 Mo. App. LEXIS 2095
CourtMissouri Court of Appeals
DecidedMay 1, 1978
DocketNo. KCD 29411
StatusPublished
Cited by5 cases

This text of 565 S.W.2d 833 (Cook v. Rupp) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Rupp, 565 S.W.2d 833, 1978 Mo. App. LEXIS 2095 (Mo. Ct. App. 1978).

Opinion

WASSERSTROM, Judge.

This is an action for mandatory injunction to require defendant Rupp to take certain remedial action to prevent flooding on the land of plaintiff Cook. The trial court granted part of the relief requested. Defendant Rupp appealed with respect to the relief granted, and plaintiffs appealed as to the relief denied. We affirm.

Rupp and Cook own adjoining land within Halls Levee District, just north of Old Mud Lake. Until the latter part of 1975, most of the Rupp tract was marsh land unsuitable for farming. Some of the eastern portion of the Cook land, lying immediately west of the Rupp land, was also marshy and unusable for agricultural, but much of the Cook land was, in fact, farmed. The Cook land drains generally in an easterly direction over the Rupp land. Also draining onto the Rupp property is water from the north through a natural water course known as Contrary Creek Discharge.

[835]*835Water coming south in this manner passes under a road at the north boundary of the Rupp property through a 30" tube. All water draining onto the Rupp property, both from the west and from the north, runs south into Old Mud Lake. The water from Old Mud Lake drains into New Mud Lake, and from the latter body it eventually drains into the Missouri River.

In November of 1975, Rupp hired defendant Fanning to dredge mud out of Old Mud Lake and deposit it as fill onto the surface of the Rupp land so as to make the Rupp land suitable for farming. In order to handle drainage, a plan was adopted after consultation with an engineer, Robert Williamson, by which a ditch was dug starting at the outlet of the tube under the north road. This new ditch made a right angle turn from the tube, ran parallel to the north road until it reached the boundary between the Rupp and Cook properties, then made another 90 degree turn and ran south to Old Mud Lake. This ditch was some 8' wide at the bottom, 20' wide at the top and 4' deep.

In addition, Rupp commissioned Fanning to build a low water crossing at the southwest corner of Old Mud Lake where the water ran from that body into New Mud Lake. The purpose of this crossing was to enable farm equipment to pass from Rupp land on one side to other of the Rupp land on the opposite side. Testimony offered by Rupp indicated that this crossing was built to a level of 790' above sea level, which was the same as the normal level of water in Old Mud Lake.

In the winter of 1975-1976, plaintiff Glenn Noble, who farmed the Cook property, noticed an unusual amount of water accumulating on the Cook property, which was verified by Cook’s son, Tom Graybill, who managed that property. Believing that the rise of said water was due to the work being done by Fanning for Rupp, Cook and Noble joined in filing the present lawsuit in which they sought to restrain and enjoin further work on the Rupp property and in which they further prayed a mandatory injunction requiring that the Rupp property be restored to its former elevation; that the natural flow of Contrary Creek Discharge be restored; that the low water crossing be removed; that trees, stumps and other debris alleged to have been bulldozed into Old Mud Lake be removed; and that the defendants Board of Supervisors of Halls Levee District be ordered to take whatever action was required in connection with the foregoing.

After the filing of this lawsuit, a conference was held by the lawyers with the circuit judge, as a result of which Rupp instructed Fanning to lower the middle portion of the low water crossing. Fanning did so, the amount of the lowering being stated variously in the testimony at from 3" to 9" below the original elevation. With this exception, the reclamation work on the Rupp property continued, and by the time of trial Fanning had virtually completed all of the project at a cost to Rupp of approximately $188,000.

At the trial, plaintiffs estimated that the rise of water on their property had caused them to lose approximately 36 acres of land which had previously been productive farm land. The implication of this testimony was that this change had been due to the reclamation work on the Rupp land which had resulted in the Rupp property being approximately 3' higher in elevation than the Cook property. However, plaintiffs receded from their initial request that Rupp be required to take off all of the fill from her land and restore it to the former low elevation and marsh condition. As their alternative, defendants substituted a request that Rupp build a new ditch on the eastern side of her property which would constitute a continuation directly south from the tube under the north road to Old Mud Lake; that the east-west portion of the existing ditch along the north boundary be blocked off; and that the north-south ditch along the western boundary of the Rupp tract be maintained in place, but that a water gate be installed at the southern end of that ditch so as to prevent backing up of water into that ditch from Old Mud Lake.

After the taking of extensive testimony and submission of many plats and photo[836]*836graphs, the trial court made findings of fact and issued an injunctive order. The court found that “[plaintiffs’ evidence is insufficient to support their claim that defendants deposited trees, stumps and other debris along the banks of Old Mud Lake, and that plaintiffs were damaged by the low water crossing constructed at the southwest end of Old Mud Lake.” Plaintiffs’ prayer for relief with respect to those items was therefore denied. The court further found that defendants had improperly obstructed and diverted the flow of Contrary Creek Discharge, and to correct that the court ordered the construction of a new ditch along the east side of the Rupp property and the construction of a barrier in the east-west ditch sufficient to prevent Contrary Creek Discharge from flowing therein.

In her brief in this court, defendant Rupp has abandoned her appeal, and that separate appeal need not be further noticed. On the part of plaintiffs, their Points on Appeal are: (1) that the court failed to grant them full and adequate relief; and (2) that the trial court erred in failing to find that the Rupp private reclamation project was in violation of and barred by the Halls Levee District plan of reclamation.

I.

Scope of Relief

Plaintiffs’ Point I starts off with a complaint that the court erred in failing to order a complete removal of the entire fill on the Rupp land. However, their own engineering witness Chang testified, “I don’t think it is wise to fill this ditch or to push the dirt from this fill area back to the lake.” Based upon the position that plaintiffs took at trial, the court stated in its findings of fact: “Plaintiffs recognize that it would be neither reasonable nor practical to order restoration of the Rupp land to its original elevation.” That comment is verified by plaintiffs’ statement, in their reply brief that “It was Appellants themselves, in the lower Court that suggested to the Court that it would not be reasonable or practical to require Respondents Rupp and Fanning to remove all of the fill deposited on the Rupp property * * In view of those concessions, plaintiffs should not be heard to argue, and indeed they do not seriously argue, that the trial court should have ordered removal of the fill. Instead, the real argument advanced by plaintiffs is that because the fill was not ordered removed, they should have been accorded all of the alternative elements of relief requested by them.

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Bluebook (online)
565 S.W.2d 833, 1978 Mo. App. LEXIS 2095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-rupp-moctapp-1978.