This is an action to recover damages alleged to have been sustained by reason of the wrongful diversion of Sugar Creek, a watercourse in Buchanan and Platte counties, in Missouri.
The petition charges that defendants, acting together in conspiracy, turned the waters of said creek from the channel in which the same had theretofore been running across the lands of plaintiff, resulting in the loss of the use of said lands during the years 1908, 1909 and 1910. The record shows that Sugar Creek is a living stream flowing from the hills in Buchanan county upon the bottom lands in Platte county. In dry seasons it runs only a small quantity of water but in seasons of rainfall a large volume flows, making it difficult to keep the creek within its banks. In former years the creek flowed into a body of water known as Sugar Lake, but in course of time that body became divided into two parts, known as Big Sugar Lake and Little Sugar Lake, and the mouth of the creek prior to 1902, or 1903, was Big Sugar Lake. At that time the general course of the stream, after reaching the flat land, was first in a southwesterly direction, thence westerly, and thence northwesterly into Big Sugar Lake. About 1902, or 1903, at about the point where the creek turned northwesterly, the banks became broken during a freshet and the creek turned its course southward and thence flowed almost due south into Little Bean Lake.
Prior to the acquisition by defendants of a tract of land known as "No Man's Land," levees and dikes had been maintained by the landowners for the purpose of confining the waters of the creek within its channel. *Page 11 When these levees became broken by reason of freshets, persons whose lands were affected entered upon the lands and repaired the breaks wherever they occurred. After the break to the south and the change in the course of the creek above referred to, the channel to the northwest leading to Big Sugar Lake became partially filled with logs and drift, thereby impeding the flow of water in that direction. That is to say, during high waters, part of the body of water flowed out through the old channel and part south into Little Bean Lake, making in a short time a permanent channel southward of such proportions that the county erected a bridge across it for use in connection with a public road.
The lands of plaintiff's intestate lie west of both the old northwest channel and the channel to the south. Defendants own lands bordering on the creek some of which lie above the lands of plaintiff and some of the defendants' lands adjoin the creek as it flows south to Little Bean Lake.
The land upon which the break of 1902, or 1903, occurred consists of twenty-five acres, known as above indicated as "No Man's Land." During the year 1901, and just prior thereto, some of the defendants desired to change the course of the creek from its channel into Big Sugar Lake to a westerly direction across the lands now owned by George Woolston and by A.B. Woolston his father, now deceased, into Little Sugar Lake. Proceedings had been instituted in the circuit court of Platte county with this purpose in view but nothing was accomplished thereby.
In 1901 defendants and other persons not parties to this suit decided to procure the twenty-five acre tract known as "No Man's Land" and use it to turn the creek in a westerly direction. As part of the scheme, or plan, said tract was purchased by a man named Page, who in turn conveyed it to one of the defendants herein named James P. Coleman, as trustee. This deed was never recorded. The testimony on behalf of defendants *Page 12 tends to show that the reason for having the land thus conveyed was that Coleman lived nearest the land and could look after it. All of the owners lived within a distance of three or four miles. The contributions toward the purchase of the land were in proportion to the land holdings of defendants in the locality, the idea being that each should contribute in proportion to the benefits he would receive. No attempt was made to cultivate the land after its acquisition by Coleman and his associates, excepting for a year or two, and it was permitted to grow up in willows. Upon acquiring the land Coleman posted notices at the corners of it declaring, "No trespassing or interfering with the levee, by order of James P. Coleman, Trustee." By 1908 the willows, which had been allowed to grow undisturbed, had grown to a considerable size, say two and one-half to three inches in diameter, and extended from the bank of the creek west to plaintiff's line. Later, defendants caused a large tree which was standing on the bank of the old northwest channel to be felled across the channel, and willows to be cut from the other banks across the channel on that side. The record further shows that in 1907 George A. Woolston had built a levee along the east line of his land and that this levee was broken by a freshet in the fall of that year. The water ran through this break on to the Woolston land only so long as the high water lasted and then went back into the southward channel; that in the spring of 1908 Woolston commenced to repair this break in his levee but before he could complete this work he was stopped by a temporary restraining order instituted in the name of B.F. Moore. At the trial this temporary injunction was dissolved. The appellants herein were sureties on Moore's injunction bond.
A week or ten days before the injunction suit was filed and the injunction served, defendants agreed among themselves to cut the willows from the creek bank to Woolston's land. The time fixed for this work was the day after the service of the order of injunction. *Page 13
On the day Woolston was notified of the injunction, defendants herein and their employees appeared on "No Man's Land" and began cutting a swath through the willows, beginning at the west bank of Sugar Creek at the point where it turned south and westerly to Woolston's east line. This swath was from thirty to fifty feet in width and extended in a straight line from the creek to the east line of Woolston's land. Part of the cut willows were burned in the swath, while others were placed alongside, among the uncut willows, and still others were dragged upon the banks of the creek, south of the land. The logs and other drift in the cut swath were dragged out. All high points in the swath were cut down, or graded, and the swath thus completed presented an unobstructed passage its entire length. There was no water running into the swath at that time. A substantial wire fence was upon the east line of Woolston's land. Where the cut swath encountered this fence, the fence posts were cut off even with the ground, the wire cut, and the section thereof so cut was swung backward and the banks of the creek at that point cut down to the height of the levee. All this was accomplished within two or three days after the injunction was served.
The record further discloses that a few days after this there came a freshet, the bank broke at the point where the swath joined the George A. Woolston land and the water flowed first onto the George A. Woolston land and then onto the lands of A.B. Woolston, and the creek was turned in that direction. During said freshet, the evidence shows that a number of logs were carried by the stream to the break in the levee, and lodging there, threatened to block the opening. Defendants and their employees went into the creek and rolled out the logs that were too large to float through the opening and placed them across the south channel to prevent the water going in that direction. It is charged that this conduct of defendants threw the waters of the creek first onto the lands of George A. Woolston and thence upon *Page 14 those of A.B. Woolston, consisting of approximately 160 acres, thereby destroying the use of said lands for the years 1908, 1909 and 1910.
This suit was instituted by A.B. Woolston on August 17, 1911, to recover damages for said years. The second amended petition, filed February 12, 1918, was in three counts; the first claimed $4200 actual and $5,000 punitive damages for injury to crops and for rendering the residence, barn and outbuildings untenable for the year 1908; the second charged like damages in the sum of $2900 actual and $3,000 punitive damages for the year 1909, and the third claiming like damages in the sum of $2900 actual and $3000 punitive damages for the year 1910. After the institution of this suit A.B. Woolston died and the suit was revived in the name of George A. Woolston, administrator, the present plaintiff, who on the day the trial began filed an amended petition alleging that he had been appointed and was then the duly qualified and acting administrator of the estate of Alfred B. Woolston. This allegation was denied in the answer filed on the same day.
At the close of plaintiff's case defendants suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A.B. Woolston. Defendants then moved the court to abate the action because George A. Woolston was not then such administrator. The motion to abate was overruled by the court, whereupon defendants asked leave to amend their answer by setting up said facts. The court first ruled that the answer could be so amended and that the plaintiff might move to strike out the amendment, and this was done. After arguments by counsel, the court ruled as follows:
"Gentlemen, the defendants ask leave to file an amended answer in the case, setting up the incompetency of plaintiff. I don't agree with Judge Strop on the principle that they have waived by having answered already. My notion is that at any time that they legally have the *Page 15 answer and set it up that that has the effect — upon the proof sustaining that answer — of abating the suit. Therefore, the court is in the position here, if I permit this answer to be filed under my notion of the case, I will have to and I will be compelled to abate the suit; that would follow. Therefore, it comes down to a matter of pure and simple discretion. This amendment is not an amendment that goes to the merits of the case; has nothing to do with the justice between these parties or adjudicating their rights. It is only a matter which says in effect, shall the case go on or not, and the discretion of the court must determine whether this case should go on or not. In view of the fact that if I refuse this answer to be filed the case automatically goes on and the case will be tried and tried out in the issues, and decided upon its merits. On the other hand, as I said, if I permit it to be filed, then it follows inevitably that the case must abate, I think it is the sound discretion of the court to leave this case where the parties have already placed themselves. I don't think that it is the province of the court to come in and offer any assistance to either party where the parties themselves have taken the position they have. Therefore, the court will not grant leave to file the amended answer. You may make any record you wish."
The court returned a verdict upon the first count for $400 actual and $1,000 punitive damages, and on the second and third counts each $400 actual damages. Judgment therefor was accordingly entered of record. Defendants appeal.
Separate briefs have been filed in the case by each of the two firms of attorneys engaged in the defense, each dealing with some particular phase of the case, and at the same time duplicating many points. We shall endeavor to treat them as one brief.
The first point upon which the appeal is based is that the court erred in refusing to abate the suit upon the suggestion and proof that plaintiff had ceased to *Page 16 be administrator of the estate of Alfred B. Woolston, deceased, and in ruling that it was within the discretion of the court to permit the trial to proceed to verdict and judgment. This contention is based chiefly upon the provisions of sections 1346, 1347 and 1351, Revised Statutes 1919, relative to abatement and revival of actions.
Section 1346 provides: "No action shall abate by the death, marriage or other disability of a party, if the cause of action survive or continue. In case of the death, marriage or other disability of a party, the court, on or before the third term after the suggestion of such death, marriage or disability, may, on motion, order the action to be continued by or against the representative or successor of such party in interest. When the cause of action does not survive, the action shall abate only as to the deceased parties, and shall continue as to the survivors, if any, without a revival thereof."
Section 1347 provides: "After the suggestion of the death, marriage or disability, the order may be made on the motion of the adverse party, or of the representatives or successor of the party who died or whose power ceased, and the names and capacities of the representatives or successor shall be stated in the order."
Section 1351 provides: "In all cases where the representatives of a deceased or disabled party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to such party and the interest of his representatives or successor therein; and the cause shall proceed in favor of or against the survivors. In case there be no surviving plaintiff or defendant, the suit shall be dismissed."
These sections presuppose, of course, that the suggestion of death or disability has been timely made. The record shows, as above indicated, that the suggestion of the discharge of the administrator of the estate of Alfred B. Woolston, deceased, was made by counsel for defendants after the issues had been made by the *Page 17 pleadings of both plaintiff and defendants, and not until after plaintiff had presented the testimony in support of his case. The law seems to be well settled as to the construction to be given these statutes, and the citations of defendant are found not to be in conflict therewith. In Beattie Mfg. Co. v. Gerardi, 214 S.W. 189, 192, it is said:
"Lastly, the appellant urges that the trial court abused its discretion in refusing her request to file an amended answer at the close of the case especially denying the representative character of the plaintiff, that she should have been permitted to amend her pleadings to conform to the proof. The only basis for this contention is the alleged admission, and for the reasons stated such admission is wholly without influence in the case.
"If the defendant intended to deny the capacity in which plaintiffs sued, she should have made a specific denial of the allegations of the petition in the nature of a plea in abatement. As the pleadings stood when the trial began, the plaintiffs were not put to the proof of those facts to maintain their case. Certainly after they had closed their case it cannot be said that the trial court failed to exercise a sound discretion in then refusing to permit an answer to be filed putting in issue for the first time plaintiffs' capacity to sue. [Levels v. Railroad, 196 Mo. loc. cit. 614, 94 S.W. 275.]"
In the Levels Case the court said, at p. 614:
"If the defendant intended to deny the capacity in which the plaintiff sued, it should have made a specific denial of the allegations of the petition in that respect in the nature of a plea in abatement. The general denial is addressed to the merits of the case and does not put in issue those facts which are raised only by a plea in abatement. Plaintiffs were not put to the proof of those facts to maintain their case as the pleadings stood when the trial began and the trial court wisely ruled that it would not further the ends of justice under *Page 18 the circumstances of the case to allow the issue to be raised after the trial had progressed."
Of like tenor is the opinion of the Supreme Court in Dudley v. Railroad, 238 Mo. 184. Under these authorities it is clear the court committed no error in its rulings on this point.
Complaint is also lodged against plaintiff's instructions numbered 7 and 9 which relate to the measure of damages upon counts 2 and 3 of the petition. This objection is directed to the question of the basis for damages, involving several questions. First, whether the injury was permanent or subject to abatement; second, what damages could be recovered if the injury was temporary and subject to abatement; third, if permanent, is the measure of damages the injury to the land, or, may it also include its use and occupation and actual loss of rents; fourth, if it may include these three elements, may plaintiff sue for less than all of his damages.
As to the first point, we hold the injury was not what is known in law as of permanent character. It could have been abated at any time; therefore, a suit for permanent injury to the land could not have been maintained. The damage was recurrent as the water overflowed the creek, and was to the use of the land. It would seem, therefore, that a claim for damage for the loss of crops was not tenable; nor is the claim of defendants that all damage should have been sought in one cause of action, one that can be sustained.
Defendants' theory is that the diversion of the creek was a permanent injury to the lands, accruing once for all to the lands and the cropowner at that time. This was an abatable injury and the damage for the use of the land from year to year may be sued for separately. [Wilkerson v. Railway, 224 S.W. 72; Scheurich v. Electric Co., 188 S.W. 114; Hayes v. Railroad, 177 Mo. App. 201, 162 S.W. 266; Frederick v. City, 201 S.W. 1147.] In the Frederick case, p. 1149, the court said:
"When the source of the injury may be removed at any time, the measure of damages is the actual damage sustained up to the bringing of the suit." *Page 19
In Dickson v. Railroad, 71 Mo. 575, the Supreme Court quoted with approval from Van Hoozier v. Railroad, 70 Mo. 145, where it was held:
"In cases of nuisance the rule is well settled that the plaintiff cannot recover for injuries not sustained when his action is commenced. It is equally well settled that when the injury inflicted is of a permanent character and goes to the entire value of the estate, the whole injury is suffered at once, and a recovery should be had, therefore, in a single suit, and no subsequent action can be maintained for the continuance of such injury. But when the wrong done does not involve the entire destruction of the estate, or its beneficial use, but may be apportioned from time to time, separate actions must be brought to recover the damages so sustained."
See also Hayes v. Railroad, supra, and Pinney v. Berry,61 Mo. 359. In the light of these authorities it is clear the trial court properly held that the nuisance charged was an abatable one. And there can be no valid objection to the instructions authorizing recovery for loss of the rental value of the land, charged in separate counts, for the years involved in this suit. We find no reversible error in this respect.
During the trial, on motion of defendants, evidence as to damage from the crops was properly stricken out. There was nothing remaining in the record upon which to base a recovery except the loss of the use of the land, or the rental value thereof, and the question remains as to whether the petition is broad enough to cover that point. The first count charges "plaintiff's intestate was thereby deprived of the use of said premises for said year," etc. We hold the petition sufficient in this respect.
Defendants also direct a charge of error against instruction No. 12, the point being that said instruction should have stated that a preponderance of evidence does not necessarily mean the greater number of witnesses. The instruction reads: *Page 20
"The court instructs the jury that by the terms preponderance of evidence, or greater weight of evidence, as used in the instructions given you by the court, is not meant the greater number of witnesses, but said terms do mean the evidence which is more satisfying and convincing to the minds of the jury."
In support of the instruction as given, plaintiff cites Hite v. Railroad, 225 S.W. 916, wherein objection was made to an instruction given in language identical with the one under consideration. The court held the instruction good, citing Hulse v. Railway Co., 214 S.W. 150, 155.
Again, it is urged that the court should have discharged the jury after sustaining defendants' motion to strike out all of the evidence as to the amount of damage done to the growing crops. To this we answer that upon the theory upon which the case was tried, to-wit, that there was no claim for damages to the crops, it does not appear that defendants' cause was in any way prejudiced by this ruling. The action of the court was proper.
As to defendants' charge that the court should have sustained their motion to strike out all the testimony with reference to logs, brush and debris thrown upon the lands during the years in question, we say this evidence was competent as going to the question of whether or not plaintiff was deprived of the use of his land, the very theory upon which the case was tried below.
Defendants charge error in the refusal of the court to give instruction "E" for defendants to the effect that if the jury found from the evidence that on April 14, 1908, there was a gap in the George A. Woolston levee, and that on that date the water or overflow of Sugar Creek, or a substantial part thereof, was running in a channel or channels through said gap and over the lands of George A. Woolston and onto the lands of plaintiff, then their verdict should be for defendants.
We think the instruction was properly refused because it left out any act of defendants in diverting that part of the stream which was at that time flowing into Little Bean Lake, and for the further reason that defendants' *Page 21 given instruction No. 2 covered the question of defendants' rights insofar as they existed, or were entitled to be submitted under the law and the facts in evidence.
Defendants also complain of the action of the court in refusing to give their instruction "F." This instruction covers and includes defendants' contention with reference to the measure of damages; and under another assignment of error, it is charged that the court erred in refusing to instruct the jury that all of the evidence as to the value of the crops injured or destroyed was withdrawn from their consideration. These objections are untenable, in view of that clause in defendants' instruction No. 10 which reads —
"The jury are instructed that the plaintiff is not entitled to recover any damages for injury to his land or premises; nor is he entitled to recover the value of any crops destroyed, and you must not include any such damages in your verdict, even if you find for the plaintiff."
Defendants' refused instruction "H" is based upon the theory that it was the duty of plaintiff to make the damage resulting from the wrongful acts of defendants as light as possible, and if the damage could have been averted, except for the injunction, plaintiff could not recover from defendants. The refusal of this instruction was not error for the reasons above stated relative to the recovery from sureties on the bond in the injunction suit.