Opinion
Opinion delivered June 13, 1949.
1. — Appeal and Error. Where plaintiff did not attack in trial court insufficiency of plea of statute of limitations in defendant's answer and made no objections at trial to questions and answers pertaining to that defense, and in fact plaintiff resumed witness stand to testify further regarding his damages to meet the defense of statute of limitations, defense of limitations was sufficiently pleaded in answer. Civil Code Sections 847.35 and 847.82 R.S. Mo. 1939.
2. — Limitation of Actions — Nuisance — Action. Where nuisance consists of a work or erection of a structure permanent in its nature, which is necessarily injurious, the whole injury arises generally upon the completion of the work, the entire damage, present and prospective, accrues at once, and is the subject of a single action which must be brought within the period of limitation from the erection of the nuisance.
3. — Limitation of Actions — Nuisance. If the nuisance is on one's land and does not of itself work the injury when erected, then the limitation will not begin to run until the first injury happens and he who owns or maintains it at that time will be liable.
4. — Limitation of Actions. Action by farm owner against electric power company to recover damages for permanent injuries claimed sustained by erosion, and other injuries, to soil of his farm caused by overflow of flood water because of operation and maintenance of electric company's dam, arose in May 1935, when he had full notice by injuries to land that year, that land was subject to flooding, was barred by five year period of statute pleaded, since action was not instituted within that period.
Appeal from Circuit Court of Pettis County. — Hon. Dimmitt Hoffman, Judge.
JUDGMENT REVERSED.
Richmond C. Coburn, Harry H. Kay and John A. Woodbridge for (defendant) appellant.
The defendant is not precluded from maintaining its defense of the statute of limitations. The defendant's answer pleaded the statute of limitations adequately. Bahn v. Fritz's Estate, 92 Mont. 84, 10 P.2d 1061 (1932); Clarke v. Lincoln County, 54 Wis. 580, 12 N.W. 20 (1882): 37 C.J., pp. 1221-1222; Houts on Missouri Pleading Practice, Sec. 2573; Official Form 20 of the New Federal Rules, 28 U.S.C.A., Sec. 723c, p. 797. Where an answer is attacked for the first time on appeal it should be liberally construed and should receive every intendment in its favor. Saxbury v. Coons, 98 S.W.2d 662 (Mo. Sup., 1936); Jones v. F.W. Woolworth Co., 234 Mo. App. 1189, 122 S.W.2d 41 (St. L.C.A., 1938). Under the liberalized influence of the New Civil Code, on appeal a pleading must be construed with liberality and upheld unless it wholly fails to state a cause of action or defense. Rogers v. Poteet, 355 Mo. 986, 199 S.W.2d 378 (en banc, 1947). Where a cause is tried in the trial court as if an issue had been pleaded, on appeal the pleadings will be considered as amended to include that issue. Civil Code of Missouri, Sec. 847.82, Mo. R.S.A., 1939; Jankowski v. Delfert. 201 S.W.2d 331 (Mo. Sup., 1947); Hallauer v. Lackey, 353 Mo. 1244, 188 1103 S.W.2d 30 (1945); Copeland v. Term. R. Assn. of St. Louis, 353 Mo. 433, 182 S.W.2d 600 (Mo. Sup., 1944), cert. den. 323 U.S. 799. 65 S.Ct. 554; Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835 (1943); Jenkins v. Kurn, 348 Mo. 942, 156 S.W.2d 668 (1941): Fuhler v. Gohman Levine Const. Co., 346 Mo. 588. 142 S.W.2d 482 (1940); Ilgenfritz v. Missouri Power Light Co., 340 Mo. 648, 101 S.W.2d 723 (1937); Ford v. Wabash Ry. Co., 318 Mo. 723, 300 S.W. 769 (1927). Section 847.82 of the Civil Code of Missouri has been construed as liberalizing the principle that where a party fails to contend in the trial court that a pleading is defective, he is in no position to do so for the first time on appeal. Ford v. L. N.R. Co., 355 Mo. 362, 196 S.W.2d 163 (1946); Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1 (1946); Gerber v. Schuette Inv. Co., 354 Mo. 1246, 194 S.W.2d 25 (1946); Brackmann v. Brackmann, 202 S.W.2d 561 (St. L.C.A., 1947); Duffy v. Barnhart Store Co., 202 S.W. 520 (St. L.C.A., 1947). This rule is applied to upset a judgment of the trial court as well as to affirm it. Missouri Civil Code, Sec. 847.82, Mo. R.S.A., 1939; Hartford Fire Ins. Co. v. Bleedorn, 235 Mo. App. 286, 132 S.W.2d 1066 (St. L.C.A., 1939); Savage v. Union Electric Light Power Co., 86 S.W.2d 97 (St. L.C.A., 1935); William E. Peck Co. v. Kansas City Metal Roofing Corrugating Co., 96 Mo. App. 212, 70 S.W. 169 (K.C.C.A., 1902). The concurrent negligence rule is not applied to water damage cases. Where several wrongdoers, not acting in concert, obstruct a stream and their wrongful acts concur in causing the plaintiff's damage, each defendant is not liable for all of the plaintiff's damage but only for that part of the damage which is attributable to his wrongful act, Benson v. City of St. Louis, 219 S.W. 575 (Mo. Sup., 1920); State ex rel. Federal Lead Co. v. Dearing, 244 Mo. 25, 148 S.W. 618 (1912); Martinowsky v. Hannibal, 35 Mo. App. 70 (St. L.C.A., 1889); Mosby v. Manhattan Oil Co., 52 F.2d 364 (C.C.A. 8, 1931), cert. den. 284 U.S. 677, 52 S.Ct. 131; Montgomery Light Water Power Co. v. Charles, 258 F. 723 (D.C. Ala., 1919); Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550 (1891); Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059 (1925); Georgia Ry. Power Co. v. Jones, 20 Ga. App. 780, 93 S.E. 521 (1917); Chicago Alton R. Co. v. Glinney, 118 Ill. 487, 9 N.E. 203 (1886); Wm. Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 132 N.W. 945 (1911), petition for rehearing overruled, 134 N.W. 1064 (1912); Polk v. Illinois Central R. Co., 175 Ky. 762, 195 S.W. 129 (1917); Davis v. Hambrick, 125 Miss. 859, 88 So. 511 (1921); Boulger v. Northern Pac. Ry. Co., 41 N.D. 316, 171 N.W. 632 (1918); Panhandle S.F. Ry. Co. v. Wiggins, 161 S.W.2d 501 (Tex. Civ. App. 1942); Fort Worth D.C. Ry. Co. v. Speer, 212 S.W. 762 (Tex. Civ. App. 1919); Texas P. Ry. Co. v. Cochrane, 69 S.W. 984 (Tex. Civ. App. 1902); 56 Am. Jur., p. 522. Where the plaintiff's property would have been overflowed to some extent by natural causes (whether an act of God or not), the defendant who obstructs the stream is not liable for all of the plaintiff's damages but only for the additional damage caused by his obstruction of the stream. Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924 (1938); Sherwood v. St. Louis, S.W. Ry. Co., 187 S.W. 260 (Spfld. C.A., 1916); Standley v. Atchison, Topeka Santa Fe Ry. Co., 121 Mo. App. 537, 97 S.W. 244 (K.C.C.A., 1906); Brown v. C.B. Q.R. Co., 195 F. 1007 (D.C. Neb., 1912); McAdams v. Davis, 200 Iowa 204, 202 N.W. 515 (1925); McAdams v. Chicago, R.I. P.R. Co., 200 Iowa 732, 205 N.W. 310 (1925); Pfannebecker v. Chicago, R.I. P.R. Co., 208 Iowa 752, 226 N.W. 161 (1929); Republican Valley R. Co. v. Fink, 18 Neb. 89, 24 N.W. 691 (1885); Chicago, R.I. G.R. Co. v. Martin, 37 S.W.2d 207 (Tex. Civ. App. 1931); Taylor v. San Antonio A.P.R. Co., 36 Tex. Civ. App. 658, 83 S.W. 738 (1904); Radburn v. Fir Tree Lumber Co., 83 Wn. 643, 145 P. 632 (1915); 112 A.L.R. 1084. The opinion of the witness Benberg having been improperly admitted in evidence by the trial court, it should not be considered in ruling on the defendant's motion for a directed verdict. Burge v. Wabash R. Co., 244 Mo. 76, 149 S.W. 925 (1912). The trial court should not permit an expert witness to answer a hypothetical question which is so long, rambling, disjointed and diverse as to be unintelligible to the witness or the jury. Henkel v. Varner, 138 F.2d 934 (C. of A., D. of C., 1943); Thompson v. Standard Wholesale etc. Works, 178 Md. 305, 13 A.2d 328 (1940). This rule has been applied in Missouri to the giving of a long, complicated and confusing instruction. Prince v. Kansas City Southern Ry. Co., 214 S.W.2d 707 (Mo. Sup., 1948). A hypothetical question should not be permitted which omits material facts which are necessary for a fair presentation of the issue and which are required to form a basis of facts upon which an intelligent opinion may be formed. DeDonato v. Wells, 328 Mo. 448, 41 S.W.2d 184 (1931); Powell v. Union Pacific R. Co., 255 Mo. 420, 164 S.W. 628 (1914); Seelig v. Missouri K. T. Ry. Co., 287 Mo. 343, 230 S.W. 94 (1921); Burge v. Wabash Ry. Co., 244 Mo. 76, 148 S.W. 925 (1912); Bennett v. Punton Sanitarium Assn., 213 Mo. App. 363, 249 S.W. 666 (K.C.C.A., 1923); Quinley v. Springfield Traction Co., 180 Mo. App. 287, 165 S.W. 346 (Spfld. App., 1914). All material, undisputed facts in the case must be included in a hypothetical question. DeDonato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 82 A.L.R. 1331 (1931); Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833 (1917). The plaintiff's alleged action is barred by the statute of limitations. Since the defendant's dam was erected pursuant to legislative authority, the maintenance of the same cannot constitute a nuisance. 8 Am. Eng. Encyc. of Law, 2nd Ed. 704; Smith v. City of Sedalia, 244 Mo. 107, 149 S.W. 597, l.c. 600 (en banc 1912); Payne v. Kansas City, St. J. C.B.R. Co., 112 Mo. 6, 20 S.W. 322 (1892); Casey v. Hoover, 114 Mo. App. 47, 89 S.W. 330 (K.C. App., 1905). Where a public authority with the power of eminent domain appropriates property without bringing condemnation proceedings, the property owner has an action at law for damages against the condemnor for the taking of his property. Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 122 A.L.R. 1496 (en banc, 1939); Smith v. City of Sedalia, 244 Mo. 107, 149 S.W. 597 (en banc, 1912); U.S. v. Cress, 243 U.S. 316, 37 S.Ct. 380 (1916); Jacobs v. U.S., 45 F.2d 34 (5 C.C.A. 1930). Where a landowner brings an action against a public authority for appropriating his land without condemning it, the landowner has but one cause of action therefor and must recover all his damages, both past and prospective, in the single action. Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626 (en banc, 1942); Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 122 A.L.R. 1496 (en banc, 1939); Smith v. City of Sedalia, 244 Mo. 107, 149 S.W. 597 (en banc, 1912); Middlekamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 103 P. 280 (1909); Smith v. Dallas Utility Co., 27 Ga. App. 22, 107 S.E. 381 (1921); City of Centralia v. Wright, 156 Ill. 561, 41 N.E. 217 (1895); Suehr v. Sanitary District of Chicago, 242 Ill. 496, 90 N.E. 197 (1909); Irvine v. City of Oelwein, 170 Iowa 653, 150 N.W. 674 (1915); King v. Board of Council of City of Danville, 128 Ky. 321, 107 S.W. 1189 (1908); Louisville Hydro-Electric Co. v. Coburn, 270 Ky. 624, 110 S.W.2d 445 (1937); Norfolk W. Ry. Co. v. Little, 274 Ky. 681, 120 S.W.2d 150 (1938); Kentucky W. Virginia Power Co., Inc., v. McIntosh, 278 Ky. 797, 129 S.W.2d 522 (1939); Bruton v. Carolina Power Light Co., 217 N.C. 1, 6 S.E.2d 822 (1940). Since the plaintiff did not begin his action within five years after the construction of the dam or the time when he first claimed that the dam was causing him injury, his cause of action is barred by the statute of limitations. Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 122 A.L.R. 1496 (en banc, 1939); Middlekamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 103 P. 280 (1909); Irvine v. City of Oelwein, 170 Iowa 653, 150 N.W. 674 (1915); Smith v. Dallas Utility Co., 27 Ga. App. 22, 107 S.E. 381 (1921); Louisville Hydro-Electric Co. v. Coburn, 270 Ky. 624, 110 S.W.2d 445 (1937); Norfolk W Ry. Co. v. Little, 274 Ky. 681, 120 S.W.2d 150 (1938); Kentucky W. Virginia Power Co., Inc., v. McIntosh, 278 Ky. 797, 129 S.W.2d 522 (1939). Where the wrongful act charged is a very remote cause of the injury, it is the duty of the plaintiff to produce substantial evidence to the jury connecting the wrongful act with the injury. Evans v. Massman Const. Co., 343 Mo. 632, 122 1106 S.W.2d 924 (Div. No. 1, 1938). The opinions of the plaintiff's experts that the defendant's dam did cause the plaintiff's damage were contrary to the physical facts of the case and are of no evidentiary value. 32 C.J.S., p. 428; Turner v. M.K. T. Ry. Co., 346 Mo. 28, 142 S.W.2d 455, 129 A.L.R. 829 (Div. No. 2, 1940); Underwood v. West, 187 S.W. 84, l.c. 86 (Sp. App., 1916). In an action for damages for obstructing a stream it is not sufficient to prove the obstruction and that such obstruction contributed to cause the overflow and injury, but the amount of overflow and damage which is caused by such obstruction must be traced. Brown et al. v. C.B. Q.R. Co., 195 F. 1007 (D.C. Neb., 1912). The plaintiff failed to establish that the silting was the proximate cause of his damage. Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924 (Div. No. 1, 1938); Arnold v. Hoffman Son Milling Co., 93 Kan. 54, 143 P. 413. Where it is charged that a wrongful act of the defendant has concurred with an act of God, such as an excessive rainfall, in causing the plaintiff's property to be flooded, the defendant is not liable unless his wrongful act was an efficient cause or an active agent in bringing about the loss. James v. Kansas City, Pittsburgh Gulf R.R. Co., 69 Mo. App. 431 (St. L. App., 1897); Coleman v. Kansas City, St. Joseph Council Bluffs R. Co., 36 Mo. App. 476 (K.C. App., 1889). The 1943 flood in the valley of the Osage was so much larger than any previously recorded flood that it was an act of God as a matter of law. Harris v. St. Louis-San Francisco R.R., 224 Mo. App. 455, 27 S.W.2d 1072 (Sp. App., 1930); Sherwood v. St. Louis-Southwestern R.R., 187 S.W. 260 (Sp. App., 1916). An opinion of a lay witness as to climatic conditions is inadmissible when United States Weather Bureau records of such conditions are available. Carter v. Zollinger, 231 Mo. App. 1153, 85 S.W.2d 189 (St. L. App., 1935); Peterson v. Chicago, M. St. P. Ry. Co., 19 S.D. 122, 102 N.W. 595; see also Shamrock Towing Co., Inc., v. Cornell Steamboat Co., 49 F.2d 785 (D.C.S.D.N.Y. 1930). Such testimony, when opposed to Weather Bureau reports, will be disregarded for the purpose of ruling on a motion for a directed verdict. Armstrong v. City of Monett, 228 S.W. 771 (Mo. Sup., 1921). A witness will not be permitted to state an opinion when he is not familiar with the determinative facts upon which the opinion is based. Burge v. Wabash R.R. Co., 244 Mo. 76, 148 S.W. 925 (1912); Brands v. St. Louis Car Co., 213 Mo. 698, 112 S.W. 511 (1908); Rothwell v. Dean, 60 Mo. App. 428 (St. L. App., 1895); Farmers' Cooperative Ditch Co. v. Riverside Irrigation District, 16 Idaho 523, 102 P. 481 (1909); Thomas v. Kenyon, 1 Daly (N.Y.) 132 (1861). Lay witnesses will not be permitted to give their opinion as to an ultimate issue in the trial of a cause for the reason that it invades the province of the jury. Landau v. Travelers Ins. Co., 315 Mo. 760, 287 S.W. 346 (En banc, 1926); Hanke v. City of St. Louis, 272 S.W. 933 (Mo. Sup., 1925); Grace v. Union Electric Company of Missouri, 200 S.W.2d 364; Hughes v. Prudential Ins. Co., 179 S.W.2d 630 (K.C. App., 1944); Schaeffer v. Northern Assurance Co., Ltd., 177 S.W.2d 688 (St. L. App., 1944); Butner v. Union Pacific R.R. Co., 236 Mo. App. 1134, 163 S.W.2d 100 (K.C. App., 1942); Martin v. Connor, 233 Mo. App. 1024, 128 S.W.2d 309 (K.C. App., 1939). Where the plaintiff brought an action in trespass against a defendant having the power of eminent domain, but which appropriated the plaintiff's property without bringing eminent domain proceedings, the cause is tried as though the defendant had proceeded in condemnation. Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621 (1946); Tooker v. Missouri Power Light Co., 336 Mo. 592, 80 S.W.2d 691 (1935). The general rule with reference to damages to real property is that where the damage is caused by a permanent, unabatable agency the owner has but one cause of action and must recover all of his damages in that suit. Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621 (1946); Tooker v. Missouri Power Light Co., 336 Mo. 592, 80 S.W.2d 691 (1935); Blankenship v. Kansas Explorations, 325 Mo. 998, 30 S.W.2d 471; Kent v. City of Trenton, 48 S.W.2d 571 (K.C.C.A., 1932). The rule that a landowner whose property has been damaged by a permanent, unabatable agency has but a single cause of action has been applied in actions of trespass as well as in other actions. Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621 (1946); Tooker v. Missouri Power Light Co., 336 Mo. 592, 80 S.W.2d 691 (1935). An agency causing damage to real estate is considered to be permanent and unabatable when it is a structure of a permanent character, lawfully constructed, and the removal or abatement of which by legal process cannot be compelled by the person injured. Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621 (1946); Tooker v. Missouri Power Light Co., 336 Mo. 592, 80 S.W.2d 691 (1935); Blankenship v. Kansas Explorations, 325 Mo. 998, 30 S.W.2d 471; Kent v. City of Trenton, 48 S.W.2d 571 (K.C.C.A., 1932). The ten-year statute of limitations is not applicable, but if it were, the plaintiff did not bring his action within ten years after the cause of action arose. The plaintiff's action, if any, is covered by the five-year statute of limitations. Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 122 A.L.R. 1496 (en banc, 1939); Kent v. City of Trenton, 48 S.W.2d 571 (K.C.C.A., 1932). This cause was not tried and decided upon the theory that the plaintiff's damage was caused entirely by the obstruction of the stream by the defendant or entirely by the excessive rainfall. Kennedy v. Union Electric Co. of Missouri, 216 S.W.2d 756. The burden was on the plaintiff to prove what part of his damage was due to the obstruction of the stream by the defendant. Brown v. C.B. Q.R. Co., 15 F. 1007 (D.C. Neb., 1912), approved by Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924 (1938). The defense of the statute of limitations was adequately pleaded because the defendant's amended answer expressly designated the applicable statute. 37 C.J., pp. 1221-1222; Bahn v. Fritz's Estate, 92 Mont. 84, 10 P.2d 1061 (1932); Clarke v. Lincoln County, 54 Wis. 580, 12 N.W. 20 (1882). This defense was also pleaded in much the same form as is recommended in Houts on Missouri Pleading and Practice, Section 2573. The Constitution of the United States protects a landowner against his property being "taken" only (Amendment 5 to the Constitution of the United States), whereas the Missouri Constitution and most of the state constitutions protect a landowner against his property being "taken or damaged." Actions brought against the government for damages under the Tucker Act, as it has been construed by the Federal cases, cannot be brought for damages which are consequential only. This rule has tended to limit substantially the Federal Courts' interpretation of what constitutes an appropriation of a person's property. Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608 (1924); Christman et al. v. United States, 74 F.2d 112 (CCA 7, 1934). Where a riparian owner becomes aware of the fact that his property is being damaged by interference with the flow of the stream, a cause of action arises in his behalf in which all of his damages must be assessed even though it is impossible to ascertain at that time the extent of future interference with the flow of the water, so that his damages are necessarily to some extent conjectural. Smith v. City of Sedalia, 244 Mo. 107, 149 S.W. 597.
Walter A. Raymond and Lamm Barnett for (plaintiff) respondent.
Limitations is an affirmative defense which must be specifically pleaded. Defendant here failed to plead facts which, if true, would make applicable the five year statute of limitations and such defense is not now available to appellant. Johnson v. Antry, (Mo. Sup.) 5 S.W.2d 405, 409 (8); Johnston v. Ragan, 265 Mo. 420, 447, 178 S.W. 159, 166-167 (14, 15); Kopp v. Moffett, 237 Mo. App. 375, 167 S.W.2d 87, 91 (5, 6); Person v. City of Independence, (Mo. App.) 114 S.W.2d 175; Excelsior Steel Furnace Co. v. Smith, (Mo. App.) 17 S.W.2d 378; Lorberg v. Jaynes, (Mo. App.) 298 S.W. 1059, 1061 (5). Appellant is not entitled to be heard on any issue of limitations as that is contrary to its trial theory that this action is premature and it is estopped to make such defense in this court. Linn County Bank v. Clifton, 263 Mo. 200, 172 S.W. 388; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600. Even had the defense of limitations been properly pleaded so as to be a legitimate issue in the case the issue was, at most, a jury issue which was abandoned by the defendant when it failed to ask an instruction on that issue. Studt v. Leiweke, (Mo. App.) 100 S.W.2d 30, 36 (13); Hill v. Landau, (Mo. App.) 125 S.W.2d 516, 519 (2); Person v. City of Independence, 114 S.W.2d 175; Riggs v. City of Springfield, 126 S.W.2d 1144, 1152; Loveland v. Collins, (Mo. Sup.) 254 S.W. 22, 25 (1); Clohesy v. Century Electric Co., (Mo. App.) 142 S.W.2d 780; United States v. Dickinson, 67 S.Ct. 1382; Gresham v. Talbott, 326 Mo. 517, 31 S.W.2d 766; Rivard v. Missouri Pac. R. Co., 257 Mo. 135, 165 S.W. 763; Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626; Smith v. City of Sedalia, 152 Mo. 283, 53 S.W. 907; Jones v. Chicago, B. Q.R. Co., 343 Mo. 1104, 125 S.W.2d 5. The evidence taken in its most favorable light to plaintiff, who obtained the verdict and judgment below, clearly made a submissible issue for the jury as to defendant's dam being the proximate cause of the plaintiff's damage. Cento v. Security Bldg. Co., 99 S.W.2d 1; Fitzgerald v. Thompson, 238 Mo. App. 546, 184 S.W.2d 198; Grace v. Union Electric Co., 200 S.W.2d 304; Jones v. Chicago, B. Q.R. Co., 343 Mo. 1104, 125 S.W.2d 5; United States v. Chicago, B. Q.R. Co., 8 Cir., 82 F.2d 131, 106 A.L.R. 942; United States v. Chicago, B. Q.R. Co., 90 F.2d 161. Defendant failed to establish its affirmative defense of unprecedented rainfall constituting an Act of God. Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Jones v. Chicago, B. Q.R. Co., 343 Mo. 1104, 125 S.W.2d 5; Jones v. Chicago, B. Q.R. Co., 100 S.W.2d 617; Allen v. American Life Accident Ins. Co., (Mo. App.) 119 S.W.2d 449; Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W.2d 924; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125, 130. The court properly permitted lay witnesses to testify that it was their recollection that more rain fell in 1895, 1927 and 1935 than in 1943. Snowden v. City of St. Joseph, 163 Mo. App. 492, 147 S.W. 492; Jackson v. Kansas City, 181 Mo. App. 178, 167 S.W. 1150, 1151 (3); Evans v. Sears Roebuck Co., (Mo. App.) 104 S.W.2d 1035; Ribello v. Chicago, B. Q.R. Co., 237 Mo. App. 587, 176 S.W.2d 670; Evans v. Wabash R. Co., 222 Mo. 435, 121 S.W. 36, 40; Jones v. Chicago, B. Q.R. Co., 343 Mo. 1104, 125 S.W.2d 5, 14 (11); Boehm v. Western Leather Clothing Co., (Mo. App.) 161 S.W.2d 710; Duffy v. Barnhart Store Co., (Mo. App.) 202 S.W.2d 520, 527 (9); Carter v. Zollinger, 231 Mo. App. 1153, 85 S.W.2d 189. Plaintiff's action is not barred by the statute of limitations. Kennedy v. Union Electric Company, 216 S.W.2d 756; Mawson v. Vess Beverage Company, 173 S.W.2d 606, 612 (5); Kelly v. City of Cape Girardeau, 60 S.W.2d 84; Van Hoozier v. Hannibal St. J.R. Co., 70 Mo. 145; Blankenship v. Kansas Explorations, 325 Mo. 998, 30 S.W.2d 471, 474-478 (2); Scheurich v. Empire Dist. Electric Co., (Mo. Sup.) 188 1110 S.W. 114, 117 (6); Kelly v. City of Cape Girardeau, (Mo. Sup.) 89 S.W.2d 41, 42-44. Under appellant's theory that here there has been an appropriation of respondent's land without condemnation the ten year statute would be applicable and the action would not be barred. Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371. The instructions confined the jury to the allowance of damages caused by the obstruction of the stream by silt only. It was the trial theory of both plaintiff and defendant that all the damage was caused by silt or all was caused by an unprecedented rainfall, not that part was caused by one and part by the other. Stoll v. First Nat. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881, 887 (18, 19, 20); Kamer v. Missouri-Kansas-Texas R. Co., 326 Mo. 792, 32 S.W.2d 1075, 1083 (13); Johnson v. Chicago R.I. Ry. Co., 334 Mo. 22, 64 S.W.2d 674, 680 (15); Cooper v. Atchison, T. S.F.R. Co., 347 Mo. 555, 148 S.W.2d 773, 780 (14). The testimony of plaintiff's expert Benberg was properly admitted. Scheipers v. Missouri Pac. R. Co., (Mo. Sup.) 298 S.W. 51, 54; Ridenour v. Wilcox Mines Co., 164 Mo. App. 516, 147 S.W. 852, 857 (5); McGrath v. Heman Const. Co., 165 Mo. App. 184, 145 S.W. 875, 878 (3); Crockett v. Kansas City Rys. Co., (Mo. Sup.) 243 S.W. 902, 907 (10); Riley v. City of Independence, 258 Mo. 671, 167 S.W. 1022, 1025 (5); Colburn v. Krenning, (Mo. Sup.) 220 S.W. 934, 941 (9); Gorman v. A.R. Jackson Kansas City Show Case Works Co., (Mo. App.) 19 S.W.2d 559, 564 (14). Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035; Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292; Kennedy v. Union Electric Company, (Mo. Sup.) 216 S.W.2d 756. There was no error in the admission of the testimony of lay witnesses as to rainfall. Kennedy v. Union Electric Company, (Mo. Sup.) 216 S.W.2d 756.
Respondent (as plaintiff below) brought this suit November 3, 1945, to recover damages claimed to have been sustained by him in the erosion and other injuries to the soil of his farm by the overflow of flood water from the Osage River, which overflow and injuries the plaintiff claimed were caused by the effect of the maintenance and operation of the defendant's dam across the Osage River known as "Bagnell Dam". The verdict and judgment were in plaintiff's favor in the sum of $1500. Defendant appealed.
The substance of the amended petition is that the maintenance and operation of defendant's dam "held back, impounded, retarded and slowed down" the natural flow and current of the Osage River, and caused the water in said river and its tributaries to back up, overflow and to fill up the natural channels thereof, and to overflow the adjacent premises, thereby creating the large body of water known as "The Lake of the Ozarks"; that such slowing down of the current of said river has decreased the carrying capacity of its water, causing the water to deposit large quantities of silt, clay and other materials along the banks of its channel, thus narrowing and shallowing the channel so that the water is caused to spread out and over the lands and to damage the same; that in May, 1943, the water of the Osage River and of the lake aforesaid were thus caused to back up and overflow the plaintiff's lands, and to stand thereon; that the channel of the river along the boundary of said farm was bank full of silt, debris and water with little or no current; that the water from the natural water channel drained by the Osage and its tributaries, including plaintiff's farm, were by reason of such narrowed and shallowed beds and channels caused to back up and to overflow the plaintiff's farm; that water from increasing rainfalls there, by reason of the conditions aforesaid, caused the river to divert from its natural channel and to flow over and across the plaintiff's land and to wash away the top soil, cut ditches thereon, and to deposit large quantities of silt, sand, clay and other materials thereon, and to stop the drains on such land, causing it to become wet and swampy; that by reason of the aforesaid conditions plaintiff's farm was damaged and the reasonable market value thereof depreciated in the amount of $13,000. It is alleged that the overflow and damages described were proximately caused by the operation and maintenance of said dam and obstruction by the defendant. It is further alleged that the defendant has an easement on the plaintiff's said farm to the height of 673 feet above sea level, but that the damages complained of were on land above said elevation.
The answer pleaded the easement mentioned in plaintiff's petition and claimed that no damage was done to plaintiff's land above that elevation, and further averred that the damage, if any, was due to an unprecedented rainfall, and was an act of God. It alleged further that since 1931, defendant has owned and operated the dam at Bagnell, which was a permanent dam over the Osage River, and constructed under Federal authority; that any cause of action plaintiff may have had by reason of such dam is barred by the Statute of Limitations (Sec. 1014, R.S. Mo. 1939). Defendant also pleaded that full compensation had been paid to plaintiff for any damages sustained in May, 1943, by and through a condemnation suit awarding the said easement to the defendant on plaintiff's land up to 673 feet.
The reply, in effect, was a specific denial of the special defenses pleaded in the answer.
The Osage River rises in east central Kansas, crossing into Missouri on the west boundary of Bates County, whereupon it follows a meandering course southeasterly to Osceola in St. Clair County, where it turns northeasterly and in a very circuitous course flows to Warsaw. From that point prior to 1931, it pursued its very irregular but generally eastward course through parts of Henry, Morgan, Camden and Miller counties to a point near Bagnell, from whence it continued its present northeastern course to a point a short distance east of Jefferson City, where it emptied into the Missouri River.
In 1931, under federal authority and license, there was constructed and assigned over to the defendant a huge concrete dam across the Osage River near Bagnell to be used to generate electrical energy. The dam is 2560 feet long, extends from bluff to bluff across the valley and is 148 feet in height. It is 150 feet wide at its base and 25 feet wide at the highway level on top. It has 12 steel gates to pass the excess water, and contains a power plant. The effect of the construction and maintenance of the Bagnell Dam was to create a reservoir or lake of 60,000 acres at a level of 660 feet above sea level. Water above the dam was thus checked, caused to spread out over the bed of the valley and a myriad of multiform projections of the lake were forced into the draws and around the hills of the vicinity of the Osage valley. The normal pool thus created extends as far as the County Line Bridge, 12 miles above the plaintiff's farm. The tributaries of the Osage River above the dam were also likewise affected. The original channel of the Osage thus practically lost its apparent identity as far up the river as Warsaw and some miles beyond.
Through a condemnation proceeding the defendant had acquired an easement permitting it to flood the lands to be inundated by the lake project to certain determined levels, and at the plaintiff's farm this easement extended to 673 feet above sea level.
Plaintiff's farm is located 20 miles up the Osage River from Warsaw, and 114 miles above the defendant's dam at Bagnall. The river approaches the plaintiff's farm from the southwest and makes a sharp "horseshoe" turn around the north and east sides of the tract, whence it proceeds on its crooked course down toward Warsaw. The farm consists of 251 acres, of which 75 acres are first and second bottom land, and the rest is upland on which the improvements are located. Of the 75 acres in bottom land, all but two acres lie above the 673 foot elevation to which the defendant holds its easement. The fall of the Osage River at plaintiff's farm averages .8 of a foot per mile.
Evidence produced by the plaintiff tended to prove further facts as follows: The plaintiff's bottom land lies on the northwest corner of his farm. Along most of the west line of the farm there is a high bluff which is the east bank of the Osage River. The farm at that point slopes to the east. Before the dam was constructed, the Osage River was clear and passed the farm with a strong current. After the dam was constructed, the river at the farm became muddy and there was little or no current there. Silt began to appear along the borders of the river and in mouths of the sloughs which drained into the river between the farm and Warsaw. These silt deposits increased each year from the time the lake was filled and became more apparent in 1934 and 1935. In March or May, 1935, plaintiff first noticed that his farm was being flooded above the 673 foot elevation because of the existence of the dam. In that connection the plaintiff was asked:
"Q. Now when was it that you first noticed, after this lake was formed there, that you were getting floods above the elevation of 673 feet because of the existence of this dam? A. Above the 673 feet? The first time was in 1935.
"Q. In 1935? A. Yes; the high day was the 30th of May, that year.
"Q. In 1935? A. 1935, yes.
"Q. And you attributed that overflow, did you, to the presence of the dam. You said that was caused by the dam? A. Yes, sir. I say that".
Plaintiff came to Kansas City in July, 1935, and complained of the flood condition to an attorney for the defendant. Plaintiff testified:
"Q. And at the time you went up there to see him, did you complain then that the dam was causing the overflow of your property above 673 feet? A. Sure. And he promised he would write to the company and see if he could get an adjustment for me of any kind".
Being later recalled to the stand plaintiff, was asked by his counsel whether he had complained in 1935 to the attorney for the defendant regarding any loss to the soil, and the plaintiff testified that he complained only at that time of loss of crops. It does not appear that plaintiff pursued his claim further at that time.
Plaintiff's further evidence was to the effect that on no occurrence of flood on his land prior to 1943 had the river broken over the west part of his farm or washed away the soil or deposited sand thereon. The previous floods were caused by the backing up of the water from the lower end of the farm. Beginning in the latter part of April, 1943, it rained steadily for eight or nine days. Then ensued an interim of several days without rain. During that lull in the rainfall, the river at plaintiff's farm was bank full with practically no current, the water being muddy and overflowing into the plaintiff's farm. Following that interim the rains resumed and continued four or five days. On or about May 15, the river broke over its east bank on the west part of the northern portion of the plaintiff's farm and ran through and across his field into the channel at the lower end thereof, with such force that it could be heard by witnesses. This condition continued for about ten days. The flood level reached 19 feet above the 673 foot elevation on the plaintiff's field. With the exception of three or four acres of the bottom land on plaintiff's farm, the top soil was thus washed off and the drain at the lower end of his field was filled up with sand and debris.
The plaintiff produced evidence that at some places above the dam there were deposits of silt 20 feet deep in the river channel. At Warsaw there was little or no current at the time in question and silt was seen near the bridge there 15 to 20 feet in depth. The mouths of the sloughs and tributaries emptying into the river between plaintiff's farm and Warsaw were clogged with silt, in some places 20 feet in depth. In the channel between plaintiff's land and Dean Island there were silt deposits as deep as 12 feet in places and extending above the water in strips 40 or 50 feet wide, and 600 feet long near the plaintiff's farm. Experts gave it as their opinions that by reason of the dam, heavy silt deposits had been caused to lodge and accumulate in the river channel and on the banks of the lake between Warsaw and plaintiff's farm, thus raising the flow of the channel and backing the water to and along plaintiff's farm so that, in such condition, when the rainfall resumed, the river was caused to leave the channel and force its way over the west bank on the farm and to run over and across it, as described. Because of the silting the water rose ten or fifteen feet higher on plaintiff's farm than it otherwise would have risen. The experts testified that the factor of the runoff facilities was more important than the amount of rainfall.
There was further evidence from lay witnesses that rains in 1895, 1927, and 1935, were heavier than the rainfall in April and May of 1943. Their evidence was further that the river rose to a higher level in 1943 than at any previous date. Shrubbery, which had been removed for the purposes of the lake, had in many places grown up thicker than before, and in places was 20 feet high. The flood of 1943 washed a strip on the plaintiff's farm 50 feet wide, 600 feet long and about 3½ feet deep between the first and second bottom lands, and sand was scattered over the rest of that portion of the farm except 3, 4, or 5 acres. The drain is left wet and soggy.
Missouri Highway 35 and Highway 65 cross the Osage bottom at Warsaw below the plaintiff's farm and in flood times have some effect in slowing down the flow of water.
Before the 1943 flood plaintiff raised corn on his bottom land and at times produced 40 or 50 bushels to the acre. In 1946, it produced 10 to 20 bushels to the acre. There was evidence that the value of the farm prior to the 1943 flood was from $18,000 to $19,000, and thereafter its value was from $6000 to $9000.
In substance the defendant's evidence was that the rainfall in the valley of the Osage above the plaintiff's farm in April and May, 1943, was the heaviest on record. From Government weather reports and other sources the proof tended to show that the rainfall in that period in that vicinity was 11.47 inches as compared to 8.60 inches in May and June of 1935; 5.86 inches in April, 1927, and 5.28 inches in December, 1895. Prior to the construction of defendant's dam the plaintiff's property had been flooded from natural causes 14 times in the 15 years next preceding 1931. In 1943 the crest of the flood on the Webb farm reached 692 feet as against 678.8 in 1935, 682.1 in 1929, and 684.7 in 1895. The area claimed by the plaintiff to have been eroded in the 1943 flood was 683 feet above sea level. Other records tended to show that flood waters of 1943, as well as those of previous floods, flowed without obstruction between Brown's Ford, above the influence of the dam, and Warsaw. Witnesses said the silting at Warsaw was not sufficient to restrict the flow of the Osage so as to affect the plaintiff's farm 20 miles upstream, although it is the tendency for dams to cause silting and in the course of time will interfere with the natural flow of the Osage River, but there has not yet been sufficient accumulation to have that effect. Highway 65 and Highway 35 and the bridges at Warsaw and Heath Bridge, together with the fills thereat tend to slow down the stream and in flood time to raise the elevation of the water. An engineer testified that the crest of the flood of 1943 at plaintiff's farm would have been as high there if the dam had not been built. The effect of any silting in the channel between the banks of the river which may have tended to raise the level of the water would have been offset by the spread of the flood plain of the river. Defendant's witnesses testified that from two to four acres of plaintiff's land had been eroded, and about one-half to one acre had been covered by sand. In their opinion the property damage to the plaintiff's farm had been from $200 to $1000 by the 1943 flood.
At the close of all the evidence, the defendant moved for a directed verdict, which was overruled.
Appellant's first point of error is that the respondent's cause of action is barred by the Statute of Limitations.
Defendant pleaded that it had operated and maintained the permanent structure and equipment constituting the Bagnell Dam since October 16, 1931 "and that any cause of action plaintiff claims to have against the defendant by reason of such construction, maintenance and operation of said dam is barred by the provisions of Section 1014, R.S. Mo., 1939". Respondent contends here for the first time that the defense of limitations was insufficiently pleaded; that "obviously" the theory of the defendant's answer is that the cause of action, if any, arose at the time the lake was filled and not when the plaintiff first sustained damages therefrom; that the answer fails to allege the date when substantial damage occurred from which the injuries could be ascertained. Section 1014 bars actions of the kind described in the petition if not brought within five years after accrual. Section 1012 provides that, for the purpose of the limitation statute in question, the action shall not be deemed to have accrued until the damage is sustained and capable of ascertainment. The answer was not attacked below for insufficiency in respect to the plea of limitations. No objection was made at trial to questions and answers pertaining to that defense, and, in fact, the plaintiff resumed the stand to testify further regarding his damages in 1935, evidently to meet the defense of the five year statute. Under the circumstances and under the present code of procedure we rule that the defense of limitations was sufficiently pleaded in the answer. Civil Code Sections 847.35 and 847.82, R.S. Mo., 1939.
Was this action barred by the Statute of Limitations as pleaded? It cannot be disputed that the huge concrete Bagnell Dam when constructed, operated and maintained, became a permanent obstruction in the Osage River. It was and is as permanent as the ingenuity of man can make it. Nor can it be disputed that it was placed, constructed, maintained and operated under the right of eminent domain and under legal authority and license. It is admitted that by condemnation the defendant acquired an easement over plaintiff's land for purposes of the effects of the dam, to the extent of 673 feet above sea level. It did not, of course, acquire thereby any such rights above that elevation, nor has plaintiff been compensated for any damages sustained by him and claimed to have been caused by the dam above that elevation. The plaintiff claims that he has since sustained permanent damage to and depreciation of the market value of his entire farm by the overflow of the river above the 673 foot elevation caused by an accumulation of silt deposits which, in turn, were caused to accumulate by the existence and operation of the defendant's dam. When did his cause of action therefor arise? He testified that there were no silt deposits before the dam was built, but in March, 1935, he noticed silt in a ford a mile from his farm; that between that time and 1943, he noticed silt deposits around his farm "all down past the lower part of the farm plenty piled at Dean Chute up there — that is the first water we had after they built the lake". His son, who had been farming the place for him since 1930, testified for the plaintiff and said that after the lake was filled, he noticed silt along his father's farm; that it had gradually filled in; that he first noticed the silt there in 1933 and 1934, but it was heavier in 1934, although he had noticed some "settlings" from the time the lake was filled. The plaintiff, again taking the stand, testified that he first noticed that he was getting flood above the 673 foot flood elevation "because of this dam" in 1935. "The high day was the 30th of May, that year"
"Q. And you attributed that overflow, did you, to the presence of the dam. You said that was caused by the dam? A. Yes, sir. I say that".
In July of that year the plaintiff made claim of the defendant's attorney for loss to his crops that year. That claim, as far as the record shows, was not pursued.
It appears, then, that in March or at least in May, 1935, plaintiff had notice that his farm, above the 673 foot elevation, was subject, vulnerable and liable to permanent injuries from overflow and flooding by reason of the defendant's dam, a permanent, unabatable obstruction owned, operated and maintained under right of eminent domain, and by July of that year had suffered the loss of that year's crop because of the dam. The damage that year was attributed to the same cause as that to which the plaintiff attributes the damages he seeks herein. The fact that in 1943, the conditions had gradually grown worse since 1935, or the area overflowed was greater, or the damage more extensive, or injured the soil and not merely the current crop, did not change the identity nor the permanency of the cause of the damage.
In Smith v. Sedalia, 244 Mo. 107, 149 S.W. 597, the city had brought a sewer to within 200 yards of the plaintiff's farm and the sewage emptied into and polluted a stream which traversed the farm. Plaintiff brought suit for the rental value of the farm and for depreciation of the value of the farm. This suit, after several retrials, was allowed to lie dormant. Some years later the plaintiff brought another suit, alleging substantially the same injuries. As to whether the latter suit was barred by the pending prior suit depended, the courts said, "on whether or not the first injuries were permanent in character". The incidental increase in the use of the sewer by the increase in population did not affect the character of the injury, the court said. The court held, at page 119:
"If condemnation proceedings had been instituted in 1895 to acquire the use of this stream, the damages would have been fixed for all time, notwithstanding the impossibility of ascertaining at that time the extent of future use that might be made of the sewer. For this reason the damages would necessarily be to some extent conjectural; but that fact would not deprive the city of the right to condemn, nor prevent the ascertainment of final damages".
And on page 122:
"This suit is not grounded upon trespass merely, nor upon nuisance, although the injury takes the form of a nuisance, but upon the constitutional right to compensation for property damaged for public use (citations); and it is so argued in plaintiff's brief. The city, by proper proceedings to that end, had the right by statute to secure the use of this stream for sewer purposes. The city did not condemn, but appropriated the use. Such action, however, does not deprive the plaintiff of his right to compensation, nor does it affect the measure of damages, which, for such use by the city, whether by condemnation or appropriation, is the diminution in market value of the land damaged".
The court held the case was barred by the pending suit because the injuries claimed in both cases were permanent in nature.
Riggs v. Springfield, 344 Mo. 420, 126 S.W.2d 1144, was another suit for damages caused by sewage from the municipal sewer system emptying into and polluting a creek which ran across plaintiff's farm. The city had not condemned any property right of the plaintiff. The court said that had the city condemned, "the damages would have been fixed then, as best could be done, for all time". In a suit by a landowner upon the appropriation of his land, the court said, the cause arose at the time the land was subjected to the said permanent and wrongful appropriation. "A similar rule", the opinion states, "is applicable to permanent nuisances. `The cause of action accrues in such cases against the party erecting the permanent nuisance, and in favor of the owner of the land at the time of such erection or the first resulting injury'. (citing cases)".
In Stewart v. Springfield, 350 Mo. 234, 165 S.W.2d 626, the plaintiffs there also sued for damages to their lands because of pollution of a creek by a discharge of the effluent from the municipal sewer of defendant. The court held that the law of eminent domain applied; that the city had a right to appropriate an easement for the discharge of its sewage, and where it had been done so without condemnation, the landowner claiming damages thereby must recover therefrom in one action when the injury became apparent, citing the rule in permanent nuisance cases. The court further said (p. 249) that while it is true a nuisance is deemed temporary if it can be abated, yet, by a consistent line of decisions in this state this rule has been held inapplicable to municipal sewer systems, which have consistently been found to constitute permanent nuisances; that — "Therefore, full damages for the permanent injury must be assessed in one action". The court held the suit barred by the statute of limitations because the alleged cause of the damages was a permanent one and had existed for a time in excess of the limitation period.
The law on this question is exhaustively reviewed by the Springfield Court of Appeals in Hayes v. Railroad, 177 Mo. App. 201, 162 S.W. 266. There the plaintiff sued defendant railroad for damages to his farm and crop alleged to have been caused by the railroad embankment causing the water to back up and overflow the land. He recovered only on his third count, which was for damages to the crop for the year 1910, due to an overflow from the same cause. The five and ten year statutes of limitations were pleaded in the answer The first and second counts of the petition on which he did not recover, were based on loss of crop for 1905, and loss of use and enjoyment of the property for the preceding six years, respectively, all attributed to the same cause. The sole question was the determination of whether or not the cause of action stated in the petition was barred by limitation. The court said that the determination of that question depended upon the further question whether the injuries complained of in the third count belonged to the class of permanent injuries to the land —
"* * * which accrue once for all to the then landowner as a single cause of action by the erection of a structure permanent in its nature and which must be redressed, if at all, by a single action brought within the limitation period; or to that class of injuries temporary and continuing in their nature, where each successive injury is severable and constitutes a distinct cause of action accruing at the time of the particular injury and which may be sued for within the statutory period after such accrual" (p. 208).
The court cited authorities to the effect that if the cause of the damage is of a continuing or abatable nature, each injury gives rise to a new cause of action and successive actions may be maintained for damages accruing from time to time, but that —
"Statutes limiting the time within which actions may be brought apply to actions for damages for nuisances, and where the nuisance is of a permanent character the period runs from the time when the injury was done or the structure complained of erected; but where the nuisance is a continuing one an action for injuries from the continuance may be brought after the lapse of more than the statutory period since the creation of the nuisance, although in such case the recovery is limited to damages for the statutory period preceding the commencement of the action".
The court pointed out that "continuing" injuries in the sense there used meant temporary or abatable injuries. The court further said:
" Then it should be borne in mind that it is the character of the source or cause of the injury as to being permanent or temporary rather than the character of the injury itself that determines to which class it belongs" (Italics ours).
And at page 209 the court said:
"The permanent injury, a cause of action for which is single and accrues once for all, may be permanent either from the inherent nature of the injury itself, as going to the destruction of the estate or its beneficial use, or from the nuisance or cause of the injury being permanent. The effect is permanent whether arising from a single act or from a constantly recurring series of acts from the same permanent cause".
As to whether the first injury did not go to the destruction of the estate, but to a lesser damage, in order to give rise to a suit for permanent damages, the court pointed out (p. 209) as follows:
"By this, however, it is not meant that the land itself must be destroyed in whole or in part as by washing away the soil or covering it with gravel or rock. The beneficial use is destroyed by flooding it with water or turning loose noxious gases thereon just as effectually as by either of the other methods just suggested. Moreover, the result is the same whether the water stands on the land all the time, recurs at frequent intervals or only at such intervals as renders the growing of crops thereon impossible or precarious. The difference is in degree only. If the cause of the flooding be permanent, this of itself renders the result permanent though arising at more or less rare and irregular but surely recurring intervals".
For authority the court here cited and quoted from Powers v. Railroad, 71 Mo. App. 540, and Powers v. Railroad, 158 Mo. 87, 97, 57 S.W. 1090. In discussing those authorities, the court in the Hayes case said (p. 211):
"It is readily seen that a permanent injury may be caused by a purely temporary or abatable nuisance, as the washing away of soil, etc. On the other hand the injuries in themselves may be purely temporary, as drowning out or washing away of crops, discharge of sewage or noxious gases, etc., and are permanent only because the nuisance causing same is permanent. The injuries themselves would terminate with the cause but the cause being permanent the injury is permanent".
The court further quoted with approval from Bunton v. Railroad, 50 Mo. App. 414, (p. 212), as follows:
"`It seems definitely settled, upon authority, that where the nuisance consists of a work or erection, which is permanent in its character, and which is necessarily injurious, the whole injury arises generally upon the completion of the work, the entire damage, present and prospective, accrues at once, and is the subject of a single action which must be brought within the period of limitation from the erection of the nuisance'".
The court, however, points out that if the nuisance is on one's own land and does not of itself work the injury when erected, "then the limitation will not begin to run until the first injury happens and he who owns or maintains it at that time will be liable". Citing further from the Bunton case, the court in the Hayes case quoted (p. 213):
"`The wrong was upon defendant's own land and originally consisted in allowing the bridge to become choked; and continuous actions might have been brought (on damage happening) for the continuous wrong, for it was yet a wrong which defendant might be expected to cease doing. But when it became fixed and permanent as a railroad embankment, it became necessarily injurious * * * At that time it could as well be seen that future damages would follow from the flowing of high waters as that rain would fall. Defendant was then at that time liable for the present and prospective damage, and such could have been recovered by plaintiff in one action. The Statute of Limitations, therefore, began to run at that time on plaintiff's whole damage, present and prospective'".
In the Bunton case, so said the court in the Hayes case, (p. 214): "* * * the court held that the damages resulting from flooding land, whether as permanent injury to the land or as destroying crops from year to year, could not be recovered in an action brought more than five years after the railroad embankment causing the same became a completed structure". The court cites and quotes at length from other cases in this and other states, among them Ridley v. Railroad, 24 S.E. (N.C.) 730, (p. 216), where that court said that in such cases where the cause is a permanent one "The Statute of Limitations begins to run in such cases, not necessarily from the construction of the road, but from the time when the first injury was sustained". "In fact", said the court, "all the cases cited and approved by the Supreme Court as the basis of its decision in Powers v. Railroad, supra, announce this doctrine".
In conclusion on that point the court in the Hayes case, supra, (p. 219) said:
"There can be no doubt that where the cause or source of the injury is permanent and nonabatable and the resulting damages go to the total or partial destruction of the land or continuously prevent its beneficial use in whole or in part, as by washing away the soil, covering the same with rock, constant flooding of land or mines, continuous discharge of sewage, noxious gases, etc., then the cause of action accrues once for all and must be sued for in one action within the statutory period of limitation. The authorities are practically unanimous to this extent. And it follows as a corollary to this that the cause of action accrues in such cases against the party erecting the permanent nuisance and in favor of the owner of the land at the time of such erection or the first resulting injury".
As final authority the court cites 2 Farnham on Waters p. 860 as follows:
"If a permanent obstruction is erected, so that it casts water across the boundary line onto the land of the upper owner, the injury is complete at the time the obstruction is erected and the injury done; and there is no ground for holding that a right of action for damages may be carried along for a period of twenty years when the Statute of Limitations says that it shall be barred in six years. The only logical rule is that, if the upper owner wishes to recover damages for his injury, he must bring this action within the time named by the Statute of Limitations".
Respondent in the case at bar further contends that his cause of action here is for tort in the nature of trespass. (Kennedy v. Union Electric Co. of Mo., 216 S.W.2d 756). Granting that the instant case partakes of the nature of trespass, we cannot see why the rule, nevertheless, should not apply where a single action is required for permanent damages arising from the same permanent cause as here.
Applying the law to the circumstances and facts at hand, we are forced to the conclusion that plaintiff's cause of action for permanent injuries to his farm because of the defendant's dam, and conditions resulting therefrom, arose not later than in May, 1935, when he had full notice, by his injuries that year that his land was subject, vulnerable and liable to present and future floods and damages by reason of the permanent cause thereof, to wit, the existence, construction, operation and maintenance of the defendant's Bagnell Dam. Since this suit was not instituted until November 3, 1945, it is evident that it was not instituted within the five year period of the statute pleaded, and is therefore barred thereby.
Appellant presents other points for our review but which, in view of the foregoing disposition of the entire case as barred by limitation, we deem it unnecessary to consider.
The judgment of the trial court is reversed. It is so ordered. Cave, J., concurs in separate opinion. Vandeventer, J., (sitting by order of Supreme Court) concurs.
I concur in the majority opinion because of the theory upon which the case was brought, tried and submitted. I am of the opinion that plaintiff's suit is grounded upon his constitutional right to compensation for property taken or damaged for public use. His petition prayed for damages to his entire tract of land, and his evidence on that point was directed to the difference in the market value of the entire tract before the flooding and immediately thereafter; his principal instruction submitted that issue as his element of damages. The theory of this case is entirely different from that advanced in Grace v. Union Electric Company, 200 S.W.2d 364; Kennedy v. Union Electric Company, 216 S.W.2d 756; and in Cunningham et al. v. Union Electric Company, decided concurrently herewith.