Gottenstroetter v. Kapplemann

88 Mo. App. 449, 1901 Mo. App. LEXIS 76

• Court: Missouri Court of Appeals
• Decided: April 9, 1901
• Status: Published

Opinion

BLAND, P. J.

There is no evidence, unless it be inferential from a profile of the lay of appellant’s lands and the description thereof given by the witnesses, that the appellant might not, at a reasonable cost, convey the surface water that accumulates in the swale behind the dam on his land, by a ditch from the swale across his lands to the spring branch. If this can be done at a reasonable cost, it is his duty to take care of the water and he can not look to his neighbor for damages that may accrue to him on account of his own negligence to protect his own premises. Gottenstroeter v. Kapplemann, 83 Mo. App. 290, and cases cited. On the other hand, if appellant can not protect himself at a reasonable cost from the destructive influence of the water occasioned by the dam, to the land itself and to the crops thereon, then the dam is an unlawful structure and respondent should be held to respond for the damages occasioned thereby. Gottenstroeter v. Kapplemann, supra.

II. In respect to the short ditch, the evidence is that in times of high water, it conveys water from the spring branch and discharges it on appellant’s lands, and that by reason of such discharge he lost, in 1899 and 1900, one and one-half to two acres of growing wheat; that but for the ditch this water would have been confined to the channel of the branch and done no injury to appellant. Under this evidence the cutting, making and maintaining of the short ditch is a clear invasion of appellant’s property rights and respondent should be held to respond for damages occasioned by the unlawful structure. Paddock v. Somes, 102 Mo. 238; Gray v. Schriber, 58 Mo. App. 178.

The judgment is reversed and the cause remanded.

All concur.