Schulze v. Monsanto Co.

782 S.W.2d 419, 1989 Mo. App. LEXIS 1805, 1989 WL 150258
CourtMissouri Court of Appeals
DecidedDecember 12, 1989
DocketNo. 55195
StatusPublished
Cited by1 cases

This text of 782 S.W.2d 419 (Schulze v. Monsanto Co.) 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
Schulze v. Monsanto Co., 782 S.W.2d 419, 1989 Mo. App. LEXIS 1805, 1989 WL 150258 (Mo. Ct. App. 1989).

Opinion

STEPHAN, Judge.

James Louis Schulze and Betty Ann Schulze, husband and wife, appeal from the judgment entered in favor of respondent Monsanto Company after a bench-tried case. Both appellants and Monsanto are riparian landowners of property on opposite sides of the Cuivre River in Lincoln County, Missouri. Appellants sought damages and injunctive relief against Monsanto for its alleged obstruction and diversion of the natural flow of the Cuivre River with increased surface water on their farm resulting in erosion and loss of crops. The trial court determined that Monsanto’s actions were legally protected under Missouri’s modified common enemy doctrine and provided no basis for any liability under any theory submitted by appellants. We affirm the judgment of the trial court.

The central issue raised by appellants for our consideration is whether the evidence presented to the trial court was sufficient to support its findings. For this purpose, all evidence favorable to this result is accepted as true with all reasonable inferences to be drawn from it and all contradictory evidence is disregarded. Thomas v. Estate of Ducat, 769 S.W.2d 819, 821 (Mo.App. 1989).

Appellants own a 396 acre farm in Lincoln County, Missouri, east of Troy, with its western boundary along the eastern bank of the Cuivre River. Monsanto’s 576 acre farm lies directly across the Cuivre River from appellants’ farm. Both farms were originally part of a larger farm owned by James Schulze’s grandfather. Monsanto bought its farm in 1978 from James Schulze’s brothers Raymond and John and a small portion from him.

Prior to 1978, Raymond had constructed berms across his property to alleviate the problems caused by the recurrent flooding of the Cuivre River. Severe floods had occurred in 1941, 1969 and 1974, with smaller floods occurring annually. James Schulze, whose farm’s elevation is, at points, seven to eight feet lower in elevation than Monsanto’s farm, also had built a series of levees to curb the effects of the flooding. Despite these efforts, the annual flooding of the Cuivre River caused property damage, including erosion, scouring, holes, sand deposits, and crop loss to the low-lying bottom lands.

Shortly after Monsanto’s purchase of its farm, another major flood occurred in 1979. In response, Monsanto raised the height of the existing levees about two feet and extended them until the levee system completely enclosed its farm. The effect of the levee caused the water level to rise one-half to two feet, as compared to no levee, and [421]*421increased the water velocity during flooding by one-half foot per second. In addition to the levee improvements, Monsanto installed approximately 900 to 1,000 feet of blanket rock riprap along a portion of its bank in early 1982. This was done to control the erosion along Monsanto’s river bank cut away by the Cuivre River’s meandering within its banks. In 1985, Monsanto installed nine “hard points” along its river bank. The hard points were areas of rock riprap located at measured intervals along the river bank. Like the riprap, the hard points were designed to prevent erosion by the Cuivre River which was undermining the banks supporting Monsanto’s levee system. Monsanto’s plans for the future included twenty-four more hard points. Construction of these additional improvements was not undertaken because appellants initiated this lawsuit against Monsanto claiming that Monsanto’s construction of the enclosed levee and installation of the riprap and hard points along the Cuivre River resulted in the obstruction and diversion of the natural flow of the watercourse, causing it to overflow onto appellants’ property with damage to their soil and crops.

Appellants raise three issues: one, whether Missouri’s common enemy doctrine shielded Monsanto from liability; two, whether the weight of the evidence established a causal relationship between Monsanto’s obstruction and diversion of the watercourse and the property damage appellants sustained; and three, whether Monsanto’s actions were negligent and reckless in planning and constructing the erosion and flood control devices on the Cuivre River precluding its reliance on the modified common enemy doctrine.

In appellants’ first point, they claim the trial court erred in its conclusion of law that the actions taken by Monsanto to prevent the erosion and flooding of its property by river water are legally protected and provide no basis for liability under the common enemy doctrine. As recently recognized by our supreme court in Looney v. Hindman, 649 S.W.2d 207, 210 (Mo. banc 1983), Missouri adheres to the modified common enemy rule. One of the clearest declarations of this rule is found in Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698 (1952). Our supreme court stated:

... Missouri is committed to the doctrine that one may not obstruct a natural watercourse without liability for ensuing damages to others, but that one may otherwise treat surface waters as a common enemy and obstruct their flow without liability for ensuing damages so long as he does so reasonably and not recklessly or negligently.

247 S.W.2d at 700. Our courts have further held that one is entitled to dam against surface water to ward it off one’s own property even if in so doing, one casts the water back upon a neighbor. Thomas v. Estate of Ducat, 769 S.W.2d 819; Kirkham v. Wright, 760 S.W.2d 474, 484 (Mo. App.1988). Appellants have no dispute with these basic tenets but argue that the modified common enemy doctrine applies only to surface waters and not to a natural watercourse. They conclude the actions taken by Monsanto in building its levee and installing riprap and hard points constitute an obstruction and diversion of the natural watercourse of the Cuivre River.

For ease in discussion, we first address whether the levee system obstructed the Cuivre River and then whether the riprap and hard points obstructed or diverted a natural watercourse.

The precise question before us is what liability does a riparian landowner incur for building a levee along a natural watercourse thus confining the flood channel so that during high water the overflow is forced over another’s land. We are guided by the early case, Anderson v. Inter-River Drainage and Levee District, 309 Mo. 189, 274 S.W. 448 (1925). In Anderson plaintiffs owned lands along the east bank of the St. Francis River. As a result of defendant’s levee which extended about twenty-five miles along the west bank of the stream and opposite to plaintiffs’ land, overflow waters during flood stage were cast upon plaintiffs’ lands in unnatural quantities.

In Anderson, plaintiffs’ petition described the St. Francis River as a winding [422]*422stream having banks and flowing “through a low, flat and practically level country.” 274 S.W.2d at 451. Plaintiffs had alleged that defendant’s levee was constructed “along and on the west bank of the St.

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782 S.W.2d 419, 1989 Mo. App. LEXIS 1805, 1989 WL 150258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schulze-v-monsanto-co-moctapp-1989.