Applegate v. Franklin
Missouri Court of Appeals
Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge. (1) The court erred in overruling the demurrer to the evidence, offered by defendant, at the close of plaintiff’s testimony. It was incumbent on plaintiff to show that the body of water drained was a natural stream, or natural body of water as distinguished from surface water. For if it were surface water, defendant had the right to drain it, even though in so doing the plaintiff should suffer injury.
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Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge. (1) The court erred in overruling the demurrer to the evidence, offered by defendant, at the close of plaintiff’s testimony. It was incumbent on plaintiff to show that the body of water drained was a natural stream, or natural body of water as distinguished from surface water. For if it were surface water, defendant had the right to drain it, even though in so doing the plaintiff should suffer injury. It was not only surface water by all of the definitions, 'but a swamp and a nuisance, as well. Benson v. Railroad, 78 Mo. 504;…
1Opinion of the CourtReyburn, J.
(after stating the facts). — Ignoring and passing by, without discussion, various charges of infirmities in the record predicated on minor and subordinate features developéd at the trial, not arising out of the principles controlling the case, nor likely to recur at any future hearing, and confining consideration to the questions peculiar to the case and decisive of it, the first and dominant proposition advanced by appellant is, that the imperative instruction asked on his behalf at close of the plaintiff’s testimony should have been given. The land submerged by the lake water was private…
2Cases cited14 opinions
- Insurance Co. v. BoonSupreme Court of the United States · 1877
- Buckley v. KnappSupreme Court of Missouri · 1871
- Hoyt v. City of HudsonWisconsin Supreme Court · 1871
- Benson v. Chicago & Alton RailroadSupreme Court of Missouri · 1883
- Morrison v. MoreySupreme Court of Missouri · 1898
9 more not listed; retrieve them via the Exa API.
3Cited by9 opinions
- Keener v. SharpSupreme Court of Missouri · 1937
- Anderson v. Inter-River Drainage & Levee DistrictSupreme Court of Missouri · 1925
- Switzer v. YuntCalifornia Court of Appeal · 1935
- Southern Indiana Power Co. v. MillerIndiana Supreme Court · 1916
- Beauchamp v. TaylorMissouri Court of Appeals · 1908
4 more not listed; retrieve them via the Exa API.