Smith v. Musgrove

32 Mo. App. 241

• Court: Missouri Court of Appeals
• Decided: October 15, 1888
• Status: Published

Opinion

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiff, on behalf of himself and other landowners in the valley of Honey creek, filed his petition praying for a mandatory injunction compelling the defendant to remove a dam which the plaintiff avers the defendant had erected across the channel of Honey creek. The petition states that such dam is a nuisance to plaintiff and other land-owners, and unless removed the waters of Honey creek would flood tlfeir lands and render them comparatively worthless.

The defendant, by answer, admitted the erection of the dam, but denied that it was across the channel of Honey creek. The answer states that the channel of Honey creek is as it always was, in a southeasterly direction and across the lands of plaintiff, and that the dam was erected by defendant on his own lands for the purpose of protecting them from overflow. The plaintiff, by reply, denies that the channel of Honey creek runs through his, the plaintiff’s, lands. He admits that prior to 1874, the channel of Honey creek was in a southeasterly direction from defendant’s lands, and did run through the lands of plaintiff, but avers that, in 1874, said channel changed and took a northerly course from the defendant’s lands, and that ever since said date the waters of Honey creek did run in a northerly direction and into Sugar creek, the creek forming a new channel, which it kept for a period of more than ten years, whereby said new channel became an ancient water-course, and that the dam erected by the defendant wholly obstructs this water-course.

Upon a full hearing of the issues thus framed the court granted the mandatory injunction prayed for and the present appeal is prosecuted from this decree.

The evidence offered by both parties is voluminous and conflicting as to some of the data. The change in the channel of Honey creek is conceded by all the witnesses. The defendant, however, contends that the evidence shows that such change did not begin prior to 1876 or 1877, and was very slight until 1880, at which time the new channel was increased by the waters of a freshet, and thereby became the main channel of Honey creek. On the other hand, the plaintiff contends that the change began in 1874, and had assumed such shape in 1876, and in that year and ever thereafter the ordinary flow of the waters of Honey creek passed exclusively .through this new channel.

The decree of the trial court embodies no finding of facts as to the date when this change took place. As the case is in equity and the .finding reviewable upon the evidence on appeal, we have made a finding of fact based upon a careful analysis of the evidence and will proceed to state such finding and then apply the law thereto.

The lands of the plaintiff, as well as of the defendant, affected by the decree, lie in the Mississippi river bottom between the bluffs on its right bank and the river. Both tracts are along the old channel of Honey creek, which is a permanent water-course, having its origin in the hilly country beyond the bluffs and emptying its waters into the Mississippi river, formerly at a distance of about five miles below plaintiff ’ s lands. The defendant’s children are the owners of the dominant estate on the creek, their lands being about two miles above those of the plaintiff, following the meanderings of the stream. While the lands are those of defendant’s children, we will speak of them, for brevity’s sake, as those of defendant, he representing his children in this litigation.

The uniform course of streams coming from the' west and emptying into the Mississippi river in that section of the state is from northwest to southeast, and such was the course of Honey creek prior to 1875. The stream carries considerable water in the wet season of the year, and deposits the brush and driftwood along its course when the waters subside. This process and the alluvial sediment similarly carried and deposited along the channel and on the banks of the creek, have the tendency of scouring the channel in some places, and raising it and the immediate banks in others, so that the channel becomes very irregular as to the general level, and in some places even higher than the adjacent lands beyond its immediate banks.

The next water-course to the north of Honey creek is Sugar creek, the general course of which is through the bottom lands from northwest to southeast, and then from southwest to northeast. This stream empties into the Fox slough of the Mississippi river at a poinf many miles north of the ancient mouth of Honey creek. As the course of the Mississippi river between these two points is from north to south, the elevation of the mouth of Sugar creek is necessarily much higher than that of Honey creek. We state these facts thus fully for the purpose of making it clear that we are impressed with the fact that the natural course of Honey creek, as determined by the surrounding circumstances existing prior to 1875, was to the southeast and along what is admitted to be its ancient channel.

Opposite to a point in defendant’s land, at which, according to plaintiff’s claim, the new channel formed, Sugar creek comes within a mile and a half of Honey creek. Nearly midway between the two creeks one Johnson had constructed a ditch twenty-three feet wide and three and one-half feet deep, presumably for the drainage of his own lands into Sugar creek. The ditch connects with Sugar creek and has a slight fall towards that creek. There is, and was at the times hereinafter stated, a slight depression of the land northwardly from the point where this new channel took off towards Johnson’s ditch, so as to enable the waters of Honey creek, if tapped at the point where the new channel took off, io flow into Johnson’s ditch and thence into Sugar creek.

It is proper to state in this connection that while there is necessarily a depression sontheastwardly likewise from the point where the new channel took off, along the course of the old channel of Honey creek, this depression for the first mile or mile and a half, is very slight, and about the same in extent as the depression of the land towards Sugar creek. The main fall of the land towards the Mississippi river along the ancient channel of Honey creek, began- only after the stream left appoint formerly known as Walnut lake, so that taking the topographical features of the country as they existed, the chances of the creek to flow northwardly, or southeastwardly from the point where the new channel formed, assuming that the stream was left wholly to its own action, were nearly equal.

The map hereto annexed is constructed from the various maps offered in evidence by the parties respectively, and is deemed sufficient to show the geographical features of the country as to water-courses, the location of the plaintiff’s and defendant’s lands on Honey creek, the course of the new channel and the location of the dam erected by the defendant and sought to be removed by the mandatory injunction.

We find that prior to and in the year 1874 cattle going to water had worn a trail or path, cutting the bank of Honey creek at the point designated by the letter A. on the annexed map ; that parts of the water of said creek in said year passed through such cut • northwardly, and began, to cut a defined channel towards Sugar creek. This channel extended in length, depth and width during the next succeeding years to such an extent that before the expiration of 1870, the bulk of the water of Honey creek in ordinary stages of the water ran through this channel northwardly into Johnson’s ditch and thence into Sugar creek ; in fact a

careful analysis of the evidence leaves hardly any doubt on the subject that the waters of Honey creek, ever since the close of 1876, at ordinary stages of water, passed exclusively through this new channel.

We further find that in 1875 Arphaxad Musgrove, the defendant’s grantor, was the owner of the land where the new channel left the creek, and was aware of the fact that the creek was cutting a new channel; that the then road overseer either in that or in the year next succeeding desired to fill this channel by a solid embankment at a point where the road crosses it, being the point where the dam complained of is now erected ; this .point was on Musgrove’s land and the overseer asked his permission to so fill the new channel; that said Musgrove denied such permission in emphatic terms, saying in the presence and heáring of a number of persons of the vicinage, “ Grod Almighty, let it go to the north or anywhere to get shut of it. I would not have you to stop it for five hundred dollars in gold ; ” that said Musgrove, either at that time or about that time, told the road overseer that the ditch was on his land, and that he would prosecute him if he filled it, and that these statements were made publicly, and under circumstances from which we are justified to infer that they came to the knowledge of plaintiff and other landowners along Honey creek below the point where the new channel formed.

We further find that prior to the change there were periodical difficulties in keeping the old channel of Honey creek open, and that Arphaxad Musgrove and his neighbors had spent considerable labor and money in dragging out driftwood which had accumulated in the old channel, and in endeavoring to cut a channel from Walnut lake southeast, and that such work afforded no permanent relief. It is not shown that either Arphaxad Musgrove or any one situated above the point where the new channel cut, had ever since 1874 done any overt act indicating in any manner an intention to keep the old channel open, until August, 1887, when the defendant erected the dam complained of, which closes the new channel entirely, and thus causes the flowing of the water of Honey creek in a southeasterly direction, flooding the lands of plaintiff and other parties on whose behalf this suit is brought.

We also find that in and after the year 1875, several persons bought lands southeastwardly of defendant’s lands on the faith of the supposed change of the channel of Honey creek ; that a bridge more than forty feet long crossing the old channel below the defendant’s lands had been removed and replaced by a culvert of six feet by two, that levees were erected, houses built, fields put in cultivation, openings in a railroad bank closed, and about two thousand acres which were marshy before reclaimed, some expressly and others presumably on the faith of the supposed change in the channel of the creek.

It appears that obstructions were placed in the old channel below the defendant’s land from time to time after 1875. The exact date when these obstructions were thus placed is not fixed by the testimony. Some were erected with a view of protecting the lands from overflow by back-water coming from the Mississippi river, others evidently for the purpose of making temporary passage-ways over the old channel of the creek. It does not appear that any of the obstructions were placed there with a view of arresting the water of Honey creek from flowing southeastwardly, and it is, to say the least, very doubtful under the evidence whether any of them had any material influence in forcing the waters of the ordinary flow of Honey creek into the new channel. That each of them was more or less operative in filling the old channel of Honey creek in times of freshet with sediment, until that channel in some places became almost extinct, necessarily results from what has been stated in preceding parts of this opinion as to the action of the water in these streams.

It appears that when the channel first turned north at the point indicated, friends of Musgrove warned him of the apparent consequences of permitting a flow of the water in that direction, but he rejected their remonstrances. The fall in the new direction being slight as above stated, the same causes which formerly filled the old channel soon became operative in the new direction. Not being kept open by artificial means it gradually filled until it was insufficient to carry off the water of Honey creek which began to flood defendant’s lands at every freshet. It further appears that during the later years of Musgrove’s life he complained of this and sought advice how to remedy the matter by legislative aid, but it does not appear that even at those dates he either distinctively asserted his right to the use of the old channel,or abandoned his intention of using the new one.

These being the facts of the case as we find them, we will proceed to apply to them the law as we conceive it to be. The decree of the court does not purport to rest upon the foundation of estoppel in pais ; if it did, the decree could not be supported. While the case has some elements of an estoppel, one of its main elements, namely, that the acts and declarations were made with a design that they would be relied on by the party claiming the estoppel, is wanting. The road overseer who built a bridge at the point where the dam now. stands, relied upon the statement then made by Arphaxad Musgrove, and such statement was made with a design of influencing his action. As to him and the public he represented there was a complete estoppel, but this did not extend in favor of the plaintiff, not being made in any sense with a view of influencing his action. But while these declarations are not sufficient to work an estoppel, they are very material when taken in connection with the subsequent acts of Arphaxad Musgrove, as bearing on the question of abandonment and acquiescence. On that point the case of Woodbury v. Short, 17 Vt. 388, is directly in point. There the defendant had diverted a stream of water from the course in which it had ■ been running across his land, by reason of which the plaintiff’s land was overflowed and injured. ' The court found that prior to and in 1830 the stream had run in a given •channel, but in that year by a sudden freshet had .changed its course upon the defendant’s land, where it was permitted to run until 1840, when the defendant turned it back into its former channel. The court, in deciding the question in plaintiff’s favor, said: “It is not necessary to decide what would have been the rights of the defendant to have turned back the stream into its former channel immediately upon its having changed its course, in 1830, and upon that question no opinioh is intended to be expressed, but whether the right should exist' after a lapse of ten years, when it piay be supposed that new rights and new interests had been acquired, is the question before us.” The court then concludes: “ The defendant in this case having, as it must be supposed, acquiesced in the running of this stream in its new channel, and the creation of new interests must not be permitted to disturb them.”

In that case as in the present the new channel had formed on the defendant’s land, and the only difference between the two cases is, that while in the Yermontcase the change .was sudden and caused by the action of a freshet without the aid of the defendant, in the present it was gradual and aided by acts done with defendant’s consent; that in the Yermont case the creation of new interests rested on inference and supposition only, while in the present case it is shown by positive proof. The case therefore is a stronger one in favor of plaintiff upon the facts than the case of Woodbury v. Short.

The counsel for the defendant criticise this case as not resting on any sound principle, and contend that it is unsupported by authority. Upon an examination of the digest of overruled cases we find that the authority of the case has never been questioned. It was expressly approved by C. J. Redfield, in the case of Ford v. Whitlock, 27 Vt. 267, while the underlying principle has often been recognized that a person may by acquiescence for a long period, even though it falls short of the period of legal limitation, debar himself of the use of an easement as against other persons who act upon a state of facts which admit of the reasonable inference of an abandonment. Stokoe v. Singers, 8 Ell. & Bl. 31; Taylor v. Hampton, 4 McCord, 96; Dyer v. Sanford, 9 Met. 395.

It is not necessary, however, in order to uphold the decree in this case, to rest it on the aboveprinciple alone, as we must conclude on the facts that the plaintiff’s rights to the flow of water in the new channel can be upheld on the theory of prescription. The evidence leaves no reasonable doubt that the ordinary flow of the waters of Honey creek, for more than ten years prior to the erection of the dam bf defendant, was through the new channel, thus creating a prescriptive right on part of the plaintiff to have them run there. The period of prescription in this state, in analogy to the statute of limitations, is now ten years. House v. Montgomery, 19 Mo. App. 170. The defendant claims that the nonuser of an easement for the statutory period is evidence of an intention to abandon only, and may be controlled by proof that the owner had no such intention while omitting to use it. The rule is not uniform on this subject, but conceding that the law is as claimed by the defendant, and yet the evidence offered by him is not satisfactory that either Arphaxad Musgrove or himself, within the statutory period by any overt act, manifested any intention to resume the flow of the water through the old channel.

It must be borne in mind that the new channel is through the defendant’s lands and that the case has to be viewed in a two-fold aspect. First, whether the nonuser by the defendant of the old channel for the period of ten years worked an extinguishment of that easement, and next whether the user of the new channel by plaintiff for the period of ten years created a right of easement by prescription in plaintiff. The user was certainly continuous and uninterrupted, and with the knowledge of the owner. If it was acquiesced in by him it created the loss of an easement by long acquiescence. If it was contrary to his will it was adverse and created the acquisition of an easement by prescription, since the fact that the plaintiff and other owners on the stream below made extensive improvements on the faith of the new condition of things, is evidence of a claim of right on their part to have the waters flow in the new course.

We are asked by appellant to at least so modify the decree as to compel all parties before the court to remove any and all obstructions from both channels in case that we conclude under the evidence that there are two channels of Honey creek. It will suffice to say that even if that finding could be made under the evidence, neither the state of the pleadings, nor the state of the evidence, nor the parties before the court would enable us to make a proper decree on that basis.

It results from the foregoing that in our opinion there is no error in the record, and that the decree of the trial court should be affirmed. So ordered.

Peers, J., concurs; Thompson, J., absent.