Looney v. Hindman

649 S.W.2d 207
CourtSupreme Court of Missouri
DecidedApril 26, 1983
Docket64078
StatusPublished
Cited by36 cases

This text of 649 S.W.2d 207 (Looney v. Hindman) 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
Looney v. Hindman, 649 S.W.2d 207 (Mo. 1983).

Opinions

BLACKMAR, Judge.

The plaintiffs own a home in Bridgeton, St. Louis County. The defendants’ home adjoins the plaintiffs’ on the south. A fence along the south border of the plaintiffs’ property separates it from the defendants’, and a fence along the west border separates it from that of another neighbor, the Zimmers. The natural drainage in the area is from south to north and from west to east.

When the plaintiffs moved into their house in 1974 they hired a house mover to transport their 20 foot by 40 foot continuous pour steel reinforced concrete swimming pool to their new home, where it was installed in the back yard about three feet from the south fence. The pool rested on a concrete base and a sand and dirt bed and had a three foot walkway, or deck, around the edges.

During March and April of 1975 the defendants dug a 20 foot by 20 foot garden in their back yard, extending to the fence separating their property from the plaintiffs’. About March 14, 1977, defendant James Hindman roto-tilled the garden, and about March 23, manure was mixed into the soil of the garden. The evidence is not wholly in agreement as to just how close to the fence the garden was tilled, but the distance was no more than a few inches.

Some time in March of 1977 the plaintiffs emptied the pool for cleaning and painting, as they had done in past years without incident. Rains to a total of 3.25 inches fell during the night of March 27-28. The following morning the pool was seen to have risen three feet out of the ground, and the concrete deck around its edge was hanging off at a 30° angle. The pool was subsequently restored to approximately its former level, but only with great difficulty and expense. The rise of the pool out of the ground is the basis for the first claim which the plaintiffs submitted to the jury. (Count V of the petition).

Plaintiffs based this claim on the theory that the defendants rendered the garden area substantially more capable of absorbing water, by reason of the cultivation and manuring of the soil, so that it collected surface water, and, after the soil was saturated, discharged the water in increased quantities and with destructive force at a point onto plaintiffs’ property underneath the base of the pool, causing the pool to “float.” Plaintiff David Looney testified that, in attempting to find the source of the problem, he had observed water standing in the garden and found a hole, or channel, eight inches wide, leading from the defendants’ garden to plaintiffs’ pool. He also observed water running from the garden through this hole toward his pool. Plaintiffs produced an expert who corroborated these observations, and further postulated that the hole directed water that had collected in the garden toward plaintiffs’ pool, with sufficient force to float the pool out of the ground.

Count VI, submitted to the jury, involved the rise of the pool in 1979. In 1977, some time after the pool had first risen, the defendants placed a border of railroad ties around the east, south and west sides of their garden “for decorative purposes.” The ties were set in concrete, resting approximately one inch in the ground and two inches in the concrete. They were eight inches in height. Defendant acknowledged that one purpose of the setting in concrete was to divert water away from the garden.

The tie border presented no problem until April of 1979, when the pool was again empty. On April 11, following a heavy rain, the pool once more rose out of the ground. Defendants had not yet roto-tilled their garden for that season. The plaintiffs claim that this 1979 damage resulted when water on the west side of the defendants’ garden was dammed by the tie border and forced onto plaintiffs’ land. Plaintiffs’ expert opined that this installation of ties could have diverted surface water that otherwise would have run off defendants’ yard, but which instead would have been redirected toward the back fence and onto plaintiffs’ property. The expert also testified [210]*210that increased hydrostatic pressure, caused by water running under the pool, forced this 1979 “floating” of the pool.

The plaintiffs sought to submit their claim for the 1977 damage by a verdict directing instruction reading as follows:

INSTRUCTION NO_
Your verdict must be for Plaintiffs under Count V if you believe:
FIRST: Defendants collected or permitted water to collect on their own premises on or about March 27-28, 1977; and
SECOND: Said collected water was discharged in destructive quantities at one point in a body against Plaintiffs’ land; and
THIRD: As a direct result of such collection and discharge of water, Plaintiffs sustained damage.

The court refused this instruction but, on its own initiative, gave an instruction based on MAI 22.06 and reading as follows: (Instruction # 3).

INSTRUCTION NO. 3
Your verdict must be for plaintiffs under Count Y if you believe:
FIRST: Plaintiffs owned the property at 11720 Chess Drive, St. Louis County, Missouri, on or about March 27-28, 1977, and
SECOND: The normal flow of surface water was collected and directed or permitted to collect and be directed on defendants’ property, by the tilling of their garden in March, 1977, and
THIRD: The defendants permitted the discharge of water onto plaintiffs’ property in concentrated and destructive quantities, and
FOURTH: Such use by defendants of their property was unreasonable, and
FIFTH: As a direct result of such conduct of defendants, the plaintiffs sustained damages.

The plaintiffs requested a similar submission for the 1979 damage, which the court also refused, giving again an MAI 22.06 type instruction (Instruction No. 4). The defendants adopted Instructions Nos. 3 and 4 as submitted by the court.

The jury returned a verdict for the defendants on both of the counts submitted. The plaintiffs appealed, claiming, along with other points about instructions and evidence, that Instructions 3 and 4 were prejudicially erroneous in requiring the jury to find as an essential element of the plaintiffs claim that the defendants’ use of their property was “unreasonable.” They argue that this submission introduces , a requirement of negligence which is not necessary in cases involving collection and discharge of surface water.

The Court of Appeals reversed and remanded for a new trial, finding that the verdict directors were prejudicially erroneous in requiring the finding of unreasonable use. The court was of the opinion that a submission of this kind called for a finding of negligence, and therefore imposed on the plaintiffs a burden they did not have to bear under the course of decisions dealing with surface water. The court made it clear that it was not giving its approval to the plaintiffs’ requested submission, and did not respond to the other points presented by the appellant, holding that these should await the settlement of instructions on retrial. We transferred the case and consider it as on initial appeal. Having so considered it, we affirm the judgment of the trial court.

Missouri follows the “modified common enemy” concept of surface water.1 [211]

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Bluebook (online)
649 S.W.2d 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/looney-v-hindman-mo-1983.