author: STONE, Judge.

text:
    Raymond A. DAVIS, Appellant, v. Viola Mae Davis BROUGHTON, Respondent.
    No. 8182.
    Springfield Court of Appeals. Missouri.
    July 20, 1963.

      J. W. Grossenheider, Lebanon, for appellant.
    Neale, Newman, Bradshaw, Freeman & Neale, Paul L. Bradshaw, Springfield, for respondent.
   STONE, Judge.

On August 3, 1961, Raymond A. Davis, as plaintiff, instituted an action (hereinafter referred to as Case No. 6095) in the Circuit Court of Pulaski County, Missouri, against his former wife, Viola Mae Davis Brough-ton, as defendant, by the filing of his petition in which he alleged that (for reasons hereinafter detailed) he was “entitled to a 50% undivided interest” in certain described real estate in St. Robert, Missouri, (hereinafter referred to as the tract), of which Viola Mae was the record owner. The prayer of Raymond’s petition was for an “order” (a) “granting to him an equitable lien setting forth his interest in (the tract) as a 50% undivided interest,” (b) directing Viola Mae to pay the balance of the note secured by deed of trust on the tract, and (c) foreclosing Raymond’s equitable lien. In due time, Viola Mae filed in Case No. 6095 (a) an answer denying Raymond’s right to any such order or relief and (b) a counterclaim for $697.80, as one-half of the balance on April 4, 1960 (when Raymond had sued Viola Mae for divorce) in a joint bank account maintained by the parties in the Waynesville Security Bank of Waynes-ville, Missouri (hereinafter referred to as the bank).

On September 14, 1961, Viola Mae, as plaintiff, countered with an action of ejectment (hereinafter referred to as Case No-6148) against Raymond, as defendant. VA.M.R. Rule 89; V.A.M.S. Chapter 524. In her petition, Viola Mae alleged her ownership of the tract, averred that on or about March 26, 1960, she had entered into “an oral lease agreement” with Raymond: whereby he had obligated himself to pay “$20 per week for rent” of the dwelling-house on the tract, and asserted that he had paid only $525 under the lease agreement and then owed “$950 for unpaid rent.”' The prayer was for possession of the dwelling house and for the unpaid rent. Having-been consolidated and thereafter transferred, by agreement of counsel, to the-Circuit Court of Phelps County, Cases Nos~ 6095 and 6148 were tried on March 8, 1962, and taken under advisement.

On July 31, 1962, judgment was rendered' (a) in Case No. 6095 finding that the evidence was insufficient to establish plaintiff Raymond’s claim to an equitable lien and' therefore dismissing his petition, (b) in-Case No. 6095 finding the issues for plaintiff' Raymond and against defendant Viola Mae on her counterclaim, (c) in Case No.. 6148 finding that plaintiff Viola Mae was-entitled to possession of the tract and directing restitution of possession to her,, (d) in Case No. 6148 finding that there was “insufficient evidence to support a lease or rental agreement between the parties as to the dwelling house” on the tract and “no evidence as to the fair rental value thereof” and therefore denying plaintiff Viola Mae’s claim for rent, (e) in Case No. 6148 finding that plaintiff Viola Mae nevertheless was-“entitled to recover nominal damages” from defendant Raymond for his occupany of the dwelling house, “which damages the court (fixed) at the sum of $25 per month from and after September 14, 1961, the date plaintiff filed her petition for possession,”' and (f) taxing two-thirds of the costs irr the consolidated cases against Raymond and one-third thereof against Viola Mae. Raymond has perfected this appeal from the-adverse rulings detailed in (a), (c) and (e)„ supra. Since Viola Mae has not appealed, the rulings detailed in (b) and (d), supra, stand unassailed and accepted. Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557, 559(1) ; Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 251.

Raymond and Viola Mae first married on December 17, 1938, when he was twenty-one and she was seventeen. Raymond farmed and was employed in construction work until he. went into the Marine Corps during World War II. After his discharge from service in December 1945, he became a barber. On June 29, 1953, while Raymond thus was employed at Fort Leonard Wood, he and Viola Mae purchased the tract in the nearby community of St. Robert for $1,500 and took title thereto in their joint names. On June 30, 1954, Viola Mae was granted a decree of divorce, alimony of $30 per week, and child support of $60 per week for the two children born of the marriage. Of course, the legal effect of the decree was to dissolve the tenancy by the entirety in the tract, so that thereafter the parties were tenants in common, each owning an undivided one-half interest in the tract. Hahn v. Hahn, Mo., 297 S.W.2d 559, 566(10); Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724, 726(2); Hiatt v. Hiatt, Mo., 168 S.W.2d 1087, 1089(6).

More than three months after the divorce, to wit, on October 8, 1954, Raymond by warranty deed conveyed his interest in the tract to Viola Mae. She testified, without objection or contradiction, that this was done “as a part of the property settlement of that first divorce”; but, whatever may have motivated the conveyance, there has been and is no attack upon its integrity. Granting to such conveyance, as in these circumstances we should, the full effect affixed to it by law [Pfeiffer v. Pfeiffer, Mo., 355 S.W.2d 934, 939(2); Ferguson v. Stokes, Mo., 269 S.W.2d 655, 660], Viola Mae thereby became sole owner of the tract. There was no change in the record title of the tract at any time thereafter.

“A month or so” prior to December 17, 1955 (the anniversary of their first marriage), Raymond and Viola Mae agreed to remarry on that anniversary date; and about the same time they decided to enlarge the dwelling house on the tract and, for that purpose, borrowed $3,500 from the bank on December 2, 1955, with the indebtedness evidenced by a note signed by both and secured by a deed of trust on the tract executed by Viola Mae only. The parties thereafter remarried on the appointed date and during their subsequent married life resided, with the children born of their first marriage, in the dwelling house on the tract. Primarily to purchase furniture, an additional sum was borrowed from the bank on July 28, 1956. This and all other bank loans obtained during the period of the second marriage were evidenced by notes signed by both spouses and were secured by deeds of trust on the tract likewise executed by both.

On June 26, 1957, a small portion of the tract was sold for $2,250 and the proceeds of this sale, with $219.60 added thereto, paid the then balance of the bank loan. The remaining major portion of the tract (to which we continue to refer simply as the tract) thereafter was unencumbered until March 10, 1958, when the parties borrowed $6,857.69 from the bank for the purpose of erecting on the tract a building in which to operate a shoe store. To stock the store, additional funds were borrowed on April 18, 1958, increasing the bank loan to $11,735.20. A fire on December 12, 1959, “entirely destroyed the stock * * * and partially ruined the building.” From $16,000 received under a fire insurance policy issued to and in the name of Viola Mae alone, as the sole owner of the insured property, the then balance of the bank loan, to wit, the sum of $6,101.12, was paid on January 21, 1960, so the tract again became unem-cumbered and thereafter remained clear until the second marital venture of the parties was terminated by decree of divorce granted to Raymond on April 16, 1960. Some two months later, to wit, on June 22, 1960, Viola Mae borrowed $5,754.16 from the bank to repair the building and to reopen the shoe store; and, on April 7, 1961, she increased her bank loan to $9,763.20, of which $8,136.00 remained unpaid when the case was tried on March 8, 1962. These loans subsequent to the second divorce were evidenced by notes signed only by Viola Mae and were secured by deeds of trust on the tract likewise executed only by her.

Raymond pleaded two reasons why (in his view of the matter) he was entitled to an undivided one-half interest in the tract and to an equitable lien therefor, namely, (1) because (so he averred) he had repaid the bank loans, the proceeds of which had been used to enlarge the dwelling house and to erect the building on the tract, and (2) because of an alleged agreement between himself and Viola Mae shortly prior to the second divorce on April 16, 1960.

Of Raymond’s claim of repayment of hank loans. When Raymond and Viola Mae remarried on December 17, 1955, she had in her individual name a checking account in the bank with a then balance of $2,689.54; but, although Raymond had annual earnings (so he said) of $10,000 to $12,000 per year, he had no bank account. On March 13, 1956, by which date the balance in her checking account had been reduced to $438.25, Viola Mae converted that account into a statutory joint account in the names of herself and Raymond (hereinafter referred to as the joint account). See V.A.M.S. Sec. 362.470. Thereafter, both parties made deposits in the joint account, and all payments on the bank loans were made from that account.

During the period of the second marriage (i. e., from December 17, 1955, to April 16, 1960), Viola Mae received monies from several sources in a substantial aggregate sum, all of which was, so she testified without contradiction, deposited in the joint account, to wit, (a) from sale of a small portion of the tract on June 26, 1957, the sum of $2,250 which admittedly was paid on the then outstanding bank loan, (b) from rental of a cabin on the tract, $45 per month during the first year of the second marriage and $40 per month thereafter, or approximately $2,140 in the aggregate, and (c) from part-time employment by “the liquor association in St. Robert” for “a little over a year,” $50 to $60 per month or not less than $600 in the aggregate. Thus, in addition to the $438.25 in her individual bank account when it was converted into the joint account, Viola Mae’s subsequent deposits from the foregoing sources totaled almost $5,000, considerably more than the $3,500 borrowed from the bank on December 2, 1955, to enlarge the dwelling house on the tract. The parties agreed that the additional sum borrowed on July 28, 1956, was used primarily for the purchase of jointly-oivned furniture, all of which Raymond kept after the second divorce.

The bank loans of March 10, 1958, and April 18, 1958, were used to erect the store building and to stock the shoe store. Although Raymond said, that he had “helped” in the shoe store “of a morning” before he commenced his nine-hour workday as a barber and that “we worked together on it (the store),” he readily conceded that Viola Mae had opened the store and that “she was the one that took care of the business” — “she had the biggest charge of it.” From the record as a whole, it is clear that Viola Mae was indeed the moving and guiding force in the business and that Raymond had little knowledge of it. He had no idea what the gross income or the net profit was, but he quickly agreed that “whatever the store made” was in the joint account. Viola Mae testified positively that the net operating profit of the shoe store was “$600 the first month” and thereafter “never smaller than that”; that all receipts from «the store were deposited in the joint account; and that all maturing monthly installments on the bank loans were paid from the joint account. As we have hereinbefore noted, the then unpaid balance of the bank loan, to wit, the sum of $6,101.12, was paid in full on January 21, 1960, out of $16,000 paid under a fire insurance policy issued to and in the name of Viola Mae alone, as> sole owner of the insured property. From the transcript presented, it is impossible to determine either the frequency or the amount of Raymond’s deposits in the joint account prior to January 21, 1960, our knowledge on this subject being limited by and to his curt, laconic, meaningless statement, “I deposited there, yes”; and thus it likewise is impossible to ascertain what, if any, portion of the bank loans was paid by or from funds deposited by Raymond. Without further recitation of record minutiae, the foregoing will suffice to demonstrate that Raymond utterly failed upon trial to establish or support factually his pleaded theory that he was entitled to an undivided one-half interest in the tract and to an equitable lien therefor because he had repaid the bank loans.

Of Raymond’s claim of an alleged agreement with Viola Mae. Actually, Raymond said that there were two agreements, both within the month prior to the second divorce on April 16, 1960. The first was an alleged oral agreement reached “whenever we agreed to a divorce,” under the terms of which, as related by Raymond, (a) he and the two children (the older of whom, a teen-age daughter, was then a pregnant divorcee) were to occupy the dwelling house on the tract until it could be sold “at a reasonable price,” (b) the proceeds of sale of the tract then were to be divided equally, and (c) Raymond was to keep all of the jointly-owned furniture and to have the entire balance in the joint account. Viola Mae’s statement of the oral agreement was decidedly different, to wit, (a) Raymond and the children were to occupy the dwelling house until the pregnant daughter delivered in June 1960 and “they could find suitable quarters” thereafter, (b) the parties were to “peaceably divide” the jointly-owned furniture or sell it and divide the proceeds, and (c) the joint bank account was to be divided after the birth of the grandchild, with the money kept “there and ready” in the meantime “because the doctor had said it would be Caesarean and there might be complications.” According to Viola Mae, Raymond then claimed no interest in the tract and the oral agreement did not purport to deal with its sale.

The second agreement was in writing. Viola Mae having said that “she didn’t care to be there” when the second divorce was granted, Raymond’s attorney (in an adjoining county) prepared a petition for signature by Raymond and an entry of appearance and answer for signature by Viola Mae and, pursuant to appointment, met and talked with both of them on April 4, 1960, in a parked automobile in Waynes-ville. Raymond testified that his attorney “recommended she get an attorney and they could get together and work out an agreement between us” but “she didn’t think that was necessary,” so his attorney “prepared one hisself” which both parties then read and signed. This agreement, five handwritten lines in length on a sheet of yellow tablet paper, was (quoted in its entirety, excepting signatures): “1. Mrs. Davis wants Michael through holidays & summer vacations — agreeded by both parties. 2. Mr. Davis Mrs. Davis agreed to have Mrs. Davis receive $20 per week until their property is sold and the proceeds divided.”

Upon trial, both parties treated the written agreement as within the scope of the general principle that “if a written contract appears on its face to be incomplete or ambiguous, extrinsic evidence, either written or oral, is admissible to resolve such ambiguity in order to determine the true intention of the parties.” Fisher v. Miceli, Mo., 291 S.W.2d 845, 848(5). So, Raymond testified in substance that “their property” contemplated and included the tract, while Viola Mae testified in substance that, since on the date of execution of the written agreement she and Raymond had owned jointly only the furniture and the joint account, her understanding of the written agreement had been that “their property” reasonably could have referred, and actually did refer, only to the furniture and the joint account and that the tract was not “included in this (written) agreement at all.” The draftsman of the written agreement did not testify.

With no specific findings of fact requested or made, such factual issues as were raised by the conflicting and contradictory testimony of the parties with respect to the oral agreement and the written agreement were ruled against plaintiff Raymond by the general finding that the evidence was insufficient to establish his claim in Case No. 6095. V.A.M.R. Rule 73.01 (b) ; V.A.M.S. Sec. 510.310(2) ; Rauth v. Dennison, Mo.App., 357 S.W.2d 201, 206(4). And, with determination of those issues depending so largely upon the credibility of the parties and the weight and value accorded to their testimony, we would be inclined to defer to the finding of the trial judge, if positive resolution of the conflicts and contradictions were essential to proper disposition of this appeal. However, in our view ■of the matter, that becomes unnecessary under the controlling legal principles to which we now turn.

Where a husband purchases realty with his own funds but causes title to be ■conveyed to his wife, the law presumes that the husband intended such conveyance to be a gift to or a provision for his wife. This presumption is a rebuttable one but, to overcome it, the evidence to the contrary must be so clear, cogent and convincing as to leave no reasonable room for doubt in the mind of the trial chancellor. And, in any such situation, the essential and meritorious inquiry is as to the intention of the husband at the time of payment. As logically should be true, the same presumption obtains, and the same general principles are applicable, with respect to payments by the husband either upon a loan secured by deed of trust covering his wife’s realty or for improvements upon her realty.

At all times from and after October 8, 1954 (more than fourteen months prior to his remarriage to Viola Mae) when he had conveyed his interest in the tract to her, Raymond admittedly knew that record title to the tract was in her alone, and he was charged with constructive knowledge (and did not deny actual knozvledge) of the legal effect of his conveyance of October 8, 1954, and of the state of the record title. Holman v. Holman, Mo., 183 S.W. 623, 625. Nevertheless (in his language), “it was perfectly all right to leave it (the title) that way.” Compare Cisel v. Cisel, 352 Mo. 1097, 1101— 1102, 180 S.W.2d 748, 750(2). Thus, the tract was the sole and separate property of Viola Mae when she and Raymond remarried, and there was no subsequent change in its status. V.A.M.S. Sec. 451.250(1).

Under the controlling principles herein-before stated, the burden rested upon Raymond to show by clear and positive evidence [Woerheide v. Kelley, Mo., 243 S.W. 158, 163(7); In re Polizoe’s Estate, Mo.App., 229 S.W.2d 293, 297(2), 298(4)] that, when the several bank loans were paid, it then was his intention that whatever portion of such payments he contributed (by way of his deposits in the joint account) was not to be a gift to or provision for his wife. Dallmeyer v. Dallmeyer, Mo., 274 S.W.2d 250, 255. But the record before us would neither justify nor permit a finding that, at the time of any deposit by Raymond in the joint account or any payment therefrom on the bank loans, Raymond then intended to claim any right of reimbursement, any interest in the tract, or any lien thereon. Contrast Prasse v. Prasse, Mo., 77 S.W.2d 1001 (the only husband-and-wife case cited by Raymond’s counsel), where defendant wife conceded that “(w)hen the time came for this financing (of improvements on the wife’s lot), the plaintiff wanted to be protected by having his name in the title deed” and that, although the wife had refused to do that, she had “said she would protect him.” 77 S.W.2d lo. cit. 1003.

In the case at bar, it was the latter part of March 1960 (after all of the notes to the bank, on which Raymond, had been a comaker, had been paid in .full, and less than one month before the second divorce on April 16, 1960) when he told Viola Mae he “needed a divorce” and then reached the oral agreement with her (so he said) that the tract would be sold and the proceeds would be divided equally between them. Even at that late date, Raymond did not complain of the state of the title and, under his own version of the oral agreement, would not have been entitled to an equitable lien on the realty. Welborn v. Rigdon, Mo., 231 S.W.2d 127, 133-134(12).

With appropriate respect for the statutory direction that we should accord due regard to the opportunity of the trial court to judge of the credibility of the witnesses and that the judgment nisi should not be set aside unless it is clearly erroneous [V.A.M.R. Rule 73.01(d); V.A.M.S. Sec. 510.310(4); Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 783(1)], it becomes our plain duty to affirm the judgment in Case No. 6095 dismissing plaintiff Raymond’s petition for the insufficiency of the evidence to establish his claim to an equitable lien.

However, Raymond asserts that, regardless of whether he is entitled to an equitable lien on the tract, the judgment in Case No. 6148 was erroneous. In his assignment of error with respect to that portion of the judgment directing restitution of possession to Viola Mae, Raymond relies upon the principle that the right to immediate possession is a prerequisite to recovery in ejectment. V.A.M.R. Rule 89.06; V.A.M.S. Secs. 524.010 and 524.080; Hrovat v. Bing-ham, Mo.App., 341 S.W.2d 365, 371(11); Towers v. Lusby, Mo.App., 175 S.W.2d 921, 922(1). True, Raymond testified (as we have noted) that, under the alleged oral agreement during the latter part of March 1960, he and the two children were to occupy the dwelling house on the tract until it could be sold “at a reasonable price.” But, when Viola Mae asked Raymond on July 17, 1961 (the day before she married her present husband) to vacate the dwelling house, he admittedly told her that he would do so and immediately began to look for another house; and it was after he subsequently had learned of Viola Mae’s marriage to her present husband and had consulted with an attorney that Raymond changed his mind and refused to vacate the dwelling house. Furthermore, Viola Mae testified in substance (as hereinbefore recorded) that Raymond and the children were to occupy the dwelling house only until the pregnant daughter delivered in June 1960 and “they could find suitable quarters” thereafter.

Again, positive resolution of the conflicts and contradictions in the testimony is unnecessary to determination of the complaint under consideration. For, since Raymond did not occupy the dwelling house under a written agreement, his tenancy was terminable upon one month’s notice in writing. V.A.M.S. Sec. 441.060. And such notice (in no wise challenged as to form, substance or timeliness) was served upon Raymond personally on August 7, 1961, thirty-eight days prior to institution of Viola Mae’s action of ejectment on September 14, 1961. Accordingly, Viola Mae had the right to immediate possession of the dwelling house when she sued therefor, and that portion of the judgment in Case No. 6148 directing restitution of possession to her was proper and should be affirmed.

This brings us to Raymond’s final point that the trial court erred in Case No. 6148 in adjudging that Viola Mae was “entitled to recover nominal damages” from Raymond “for his occupancy” of the dwelling house, “which damages” the court fixed at $25 per month from and after September 14, 1961, the date of filing of the action of ■ejectment. Notwithstanding that the court found (and, we think, properly so) in Case No. 6148 that there was “insufficient evidence to support a lease or rental agreement between the parties as to the dwelling house” and “no evidence as to the fair rental value thereof,” the judgment for “nominal damages” of $25 per month obviously was a periodic allowance in lieu of rent; and, by entry of that judgment on July 31, 1962, liability was imposed upon Raymond for “nominal damages” theretofore accrued in the aggregate sum of $250 as well as such damages accruing thereafter so long as he retained possession of the dwelling house.

Although Viola Mae’s counsel point to a statement that the term “nominal damages” carries no suggestion of certainty as to amount [25 C.J.S.Damages § 16, p. 471], it is abundantly clear that this term means a trivial or trifling amount. “Nominal damages” are damages in name only — “a mere peg to hang costs on”; and the reported cases in this and other jurisdictions are flecked with references to awards of one dollar or less as judgments for nominal damages.

In Hahn v. Cotton, 136 Mo. 216, 37 S.W. 919, an action of ejectment in which the trial court had “found for plaintiff for possession, with one cent damages, and further found the monthly value of the rents and profits to be three dollars” [136 Mo. loc.cit. 224, 37 S.W. loc.cit. 920], our Supreme Court said that, “without other proof than of the unlawful retention of the possession. * * * the finding for one cent damages was proper” but that, "(without testimony as to value (of the rents and profits), there certainly could not properly he a finding for monthly rent at the rate of three dollars per month. That finding could not he regarded as nominal.” 136 Mo. loc.cit. 226, 37 S.W. loc.cit. 921. (Emphasis ours) Even in this day of easy money and continuing inflation, we are unable to accept and approve the theory that an award of $25 per month properly may be made under the guise of “nominal damages.”

The judgment of the circuit court in Case No. 6095 is affirmed; the judgment of the circuit court in Case No. 6148 is set aside and that cause is remanded with directions to re-enter, as of July 31, 1962, the judgment for plaintiff, Viola Mae Davis Broughton, for restitution of possession of the tract to her, and to enter, as of the same date, judgment in favor of plaintiff and against defendant for nominal damages in the sum of $1.00; the judgment of the circuit court as to the taxing of costs in the consolidated cases is affirmed; and the costs on this appeal are taxed against the parties, share and share alike, i. e., one-half against Raymond A. Davis and one-half against Viola Mae Davis Broughton.

RUARK, P. J., and HOGAN, J., concur.

        . Hampton v. Niehaus, Mo., 329 S.W.2d 794, 799(2) ; Gillespie v. Gillespie, Mo., 289 S.W. 579, 581(3) ; Woodward v. Woodward, 148 Mo. 241, 246, 49 S.W. 1001, 1002; Ilgenfritz v. Ilgenfritz, 116 Mo. 429, 435, 22 S.W. 786, 787(1) ; Schuster v. Schuster, 93 Mo. 438, 444, 6 S.W. 259, 261.

      . Hiatt v. Hiatt, Mo., 168 S.W.2d 1087, 1090(9) ; Bender v. Bender, 281 Mo. 473, 477, 220 S.W. 929, 930(4) ; Viers v. Viers, 175 Mo. 444, 453, 75 S.W. 395, 398; Alexander v. Alexander, Mo.App., 44 S.W.2d 872, 874(2).

      . Gillespie, supra, 289 S.W. loc. cit. 581 (4) ; Viers, supra, 175 Mo. loc. cit. 453, 75 S.W. loc. cit. 398(2) ; Curd v. Brown, 148 Mo. 82, 92, 49 S.W. 990, 992; Alexander, supra, 44 S.W.2d loc. cit. 874 (4).

      . Dallmeyer v. Dallmeyer, Mo., 274 S.W.2d 250, 255; Hampton, supra, 329 S.W.2d loc. cit. 799(4) ; Wenzelburger v. Wenzelburger, Mo.App., 296 S.W.2d 163, 166 (8) ; 2 Restatement of Trusts 2d, § 443, comment a, loc. cit. 404.

      . Woerheide v. Kelley, Mo., 243 S.W. 158, 163(7) ; Pursley v. Pursley, Mo.App., 215 S.W.2d 302, 306-307(4, 5); In re Polizoe’s Estate, Mo.App., 229 S.W.2d 293, 297-298(2-4). See also Hampton, supra, 329 S.W.2d loc. cit. 803(13) ; Dallmeyer, supra, 274 S.W.2d loc. cit. 255-256(9); Schowe v. Kallmeyer, 323 Mo. 899, 911-912, 20 S.W.2d 26, 30-31 (12) ; Holman v. Holman, Mo., 183 S.W. 623, 625; Woodward, supra, 148 Mo. loc. cit. 246, 49 S.W. loc. cit. 1002(2) ; Curd, supra, 148 Mo. loc. cit. 95, 49 S.W. loc. cit. 993(6).

      . Seelig v. Missouri, K. & T. Ry. Co., 287 Mo. 343, 363, 230 S.W. 94, 102(4) ; Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410, 411(2); Stoll Oil Refining Co. v. Pierce, Ky., 343 S.W.2d 810, 811(1) ; Gould v. Mountain States Tel. & Tel. Co., 6 Utah 2d 187, 309 P.2d 802, 803(2) ; Chesapeake & Potomac Tel. Co. v. Clay, 90 U.S.App.D.C. 206, 194 F.2d 888, 890(1) ; 4 Restatement, Torts, § 907, p. 551; 25 C.J.S. Damages § 16, p. 471; 28A Words and Phrases (Perm. Ed.), “Nominal Damages”, p. 303.

      . Walters v. Geheran, Sup., 192 N.Y.S.2d 23, 24(2) ; Thompson v. Anderson, 107 Utah 331, 153 P.2d 665, 667(7) ; Lucas v. Morrison, Tex.Civ.App., 286 S.W.2d 190, 191(5) ; 15 Am.Jur., Damages, § 5, loc. cit. 392.

      . Stanton v. New York & E. Ry. Co., 59 Conn. 272, 22 A. 300, 303; Stoll, supra, 343 S.W.2d loc. cit. 811; Ferreira v. Honolulu Star-Bulletin, Ltd., 44 Haw. 567, 356 P.2d 651, 658. See Curd v. Reaban, Mo., 232 SW.2d 389, 392(5).

      . Davidson v. Schneider, Mo., 349 S.W.2d 908, 913; Hecker v. Bleish, 319 Mo. 149, 178, 3 S.W.2d 1008, 1021; Seelig, supra, 287 Mo. loc. cit. 363, 230 S.W. loc. cit. 102; Hahn v. Cotton, 136 Mo. 216, 224, 226, 37 S.W. 919, 920, 921; Bourne v. Pratt & Whitney Aircraft Corp., Mo.App., 207 SW.2d 533, 542(11) ; Del Commune v. Bussen, Mo.App., 179 S.W.2d 744, 748 (5).

      . Moyer v. Cordell, 204 Okl. 255, 228 P. 2d 645, 648(3) ; Price v. McComish, 22 Cal.App.2d 92, 70 P.2d 978, 982; Broads v. Mead, 159 Cal. 765, 116 P. 46, 47; Lucas, supra, 286 S.W.2d loc. cit. 191-192(5) ; Gould, supra, 309 P.2d loc. cit. 803(2) ; Ferreira, supra, 356 P.2d loc. cit. 658; Ferguson v. Hoshi, 25 Wash. 664, 66 P. 105, 106; Hasselbusch v. Mohmking, 76 N.J.L. 691, 73 A. 961, 962; Walters, supra, 192 N.Y.S.2d loc. cit. 24(3) ; Heath v. United States, D.C.Ala., 85 F.Supp. 196, 203; 15 Am.Jur., Damages, § 5, loc. cit. 392.

      . Many awards of “nominal damages” in amounts less than the $250 which had accrued prior to entry of the judgment here under review have been disapproved. E. g., awards for $75: Gould, supra, 309 P.2d loc. cit. 803(1) — for $100: Baden, supra, 357 P.2d loc. cit. 411(2) ; Broads, supra, 116 P. loc. cit. 47 (8) ; Chowchilla Nat. Bank v. Nilmeier, 83 Cal.App. 18, 250 P. 298, 299(6); Lucas, supra, 286 S.W.2d loc. cit. 191-192 (6) — for $105: Moyer, supra, 228 P.2d loc. cit. 648(3) — for $200: Hinson v. A. T. Sistare Const. Co., 236 S.C. 125, 113 S.E.2d 341, 345 (11) ; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, 768(18), 66 A.L.R. 1121, 1130(17) ; Price, supra, 70 P.2d loc. cit. 982(4) ; Thompson, supra, 153 P.2d loc. cit. 667-668. See generally 15 Am.Jur., Damages, § 5, loc. cit. 392; Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25, 31; Chesapeake & Potomac Tel. Co., supra, 194 F.2d loc. cit. 890(5). Consult also Hecker, supra, 319 Mo. loc. cit. 176, 178, 3 S.W.2d loc. cit. 1020, 1021; Conley v. Dee, Mo.App., 246 S.W.2d 385, 387


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    L. R. JONES and Myrtle Jones, his wife, Plaintiffs-Appellants, v. DES MOINES AND MISSISSIPPI RIVER LEVEE DISTRICT NO. 1, a Corporation, Defendant-Respondent.
    No. 31398.
    St. Louis Court of Appeals. Missouri.
    July 16, 1963.

      J. Andy Zenge, Jr., Canton, for appellant.
    Louis F. Cottey, Lancaster, Craig Hiller, Kahoka, for respondent.
   BRADY, Commissioner.

The appellants, plaintiffs in the trial court, brought this action seeking damages for the alleged flooding of their land by the respondent levee district, defendant in the trial court, and also praying for injunctive relief to prevent the defendant from allowing water to stand on their property. The trial court denied plaintiffs both damages and the injunctive relief sought and from that judgment they have prosecuted this appeal.

The defendant district is located in the northeast corner of Clark County and contains an area of approximately 12,000 acres. It was formed in 1903, and in 1923 and 1927 the pumping station and other improvements were added. Just outside the southeast corner of defendant’s actual boundaries is located the Town of Alexandria, Missouri, and in that town lies the land owned by the plaintiffs. This is not the first time the drainage problems attendant to this area have caused reference to the courts. See Jones v. Chicago, B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5.

The pertinent portions of plaintiffs’ petition are that they therein allege their ownership of Blocks 28, 61, and Lot 1 of Block 59, of Alexandria, Clark County, Missouri, and that defendant had “ * * caused, suffered and permitted water to overflow, cover and stand upon * * * ” this property; that defendant was asked to remove the water and “ * * * made no effort to do so * * Plaintiffs’ damages were prayed as $7,500.00. In Count II of their petition, plaintiffs allege this conduct on the part of the defendant has continued “for several months”; repeated requests of the defendant to remove the water and repeated refusals of defendant to do so; that defendant’s actions “Constitutes a continuing trespass * * ” which makes it impossible for plaintiffs to use a portion of their land; and that the plaintiffs are without an adequate remedy at law. Plaintiffs prayed for an order “* * * restraining and enjoining the defendant * * * from flooding the land * * * and enjoining them from causing, suffering or permitting the water to overflow and flood the land belonging to the plaintiffs * *

The answer to Count I admitted the ownership of the lands set out in the petition, except those “ * * * which are within the natural boundaries of Keg Slough,” and denied the remaining allegations. The answer then sets out at length the defendant’s contention that Keg Slough is a natural watercourse into which drained the surface and overflow waters from the surrounding area and in which slough also collected seep water when the Des Moines and Mississippi Rivers rose to or above the level of the bottom of this slough; that this slough had overflowed on numerous occasions prior to this; and, although the plaintiffs’ land and the Village of Alexandria were outside of the defendant’s boundaries, the defendant had voluntarily constructed a series of levees to protect them and in so doing “ * * * and in regularly pumping from said Keg Slough and emptying outside said levees waters which would otherwise accumulate therein and overflow upon plaintiffs’ property, without cost to plaintiffs * * * ”, defendant has been able to minimize this flooding. Defendant also alleged that whatever flooding occurred was the result of “ * * the natural and inevitable overflow of said Keg Slough * * The answer went on to plead that by the continuous adverse and uninterrupted use of Keg Slough “ * * * as a natural watercourse and as an integral part of its established drainage system * * ⅜ ” and the collection of the waters therein for more than 25 years preceding this action, the defendant “ * * * has acquired by prescription the right and privilege to use said slough and the banks thereof and the ground immediately adjacent thereto to a point coterminous with, and established by, the high water mark of said slough in rainy and overflow seasons, for the purpose of storing and permitting the natural flowage of the waters from its established drainage system through said slough as fully and with the same effect as though defendant had obtained from plaintiffs and their predecessors in title the grant of a lawful easement of record for such purposes in and upon said slough and the lands immediately adjacent thereto. * * * ” The answer to Count I also alleged that the plaintiffs knew the slough overflowed when they purchased the property and that they had deliberately increased any damages by the location of certain personal property in places where “ * * * the same were certain to be inundated by the overflow waters from said slough in wet seasons * * *.» The gnaj allegation of the answer was that surface seepage and flood waters would cause the slough to overflow when either of the rivers was at flood stage regardless of the drainage by the defendant into the slough.

For its answer to Count II, the defendant re-alleged the matter set out above from its answer to Count I and also denied the lack of an adequate remedy at law. In the alternative the defendant set forth what it refers to in its brief as “The comparative injury rule” alleging that the damage to it and “ * * * to the public which it represents and serves * * * would be grossly disproportionate to any possible benefit which plaintiffs could obtain thereby and * * * would cause irreparable damage and detriment to defendant’s entire drainage plan and system. * * * ”

The scope of our review is too well known to require citation. We are to review this jury-waived case as we would an equity matter arriving at our own conclusions of law and findings of fact but duly deferring to the trial court’s ability to judge the credibility of the witnesses. We are not to set the judgment aside unless it is clearly erroneous. Sec. 510.310, RSMo 1959, V.A.M.S.

The transcript discloses that essentially there were two issues litigated in this trial. The first was as to the water standing on Block 30 and those parts of Blocks 28 and 61 lying inside Keg Slough. The second issue was as to whether the defendant was liable for damage caused to plaintiffs’ personal property standing on Blocks 28, 61, and Lot 1 of Block 59 and lying outside the banks of Keg Slough, by water overflowing the banks of Keg Slough. As to the first issue, the defendant’s contention was that it had acquired the right to flood that land by prescription or, in the alternative, that these portions of plaintiffs’ land lie within the banks of a natural watercourse. The plaintiffs contended that defendant was barred from pleading any prescriptive right, from introducing any evidence as to the acquisition of such a right, and from claiming that Keg Slough was a part of a natural watercourse by what they designate as “res judicata.” It is in this connection that plaintiffs present three of its five allegations of prejudicial error. Therein plaintiffs contend that the trial court erred in overruling their motion to strike those paragraphs from the answer which set forth defendant’s contentions that this slough is a part of a natural watercourse to which the defendant had acquired a prescriptive right, in admitting evidence as to the slough being a part of a natural watercourse, and in admitting evidence as to the existence in defendant of a prescriptive right. The plaintiffs also assign as error the trial court’s action in allegedly refusing to take judicial notice that in yet another action tried before the court wherein the town of Alexandria was plaintiff and sought to drain waters into Keg Slough, the defendant took the position that Keg Slough was a private drainage ditch. Plaintiffs contend this allowed the defendant to adopt inconsistent positions to plaintiffs’ prejudice. The plaintiffs’ last allegation of error is that the evidence conclusively requires a judgment in their favor. In view of the result reached herein, there is no necessity to state plaintiffs’ evidence as to damage.

The evidence in this case can best be understood by reference to plaintiffs’ exhibit No. 1, set out above. A surveyor employed by plaintiffs testified that he had surveyed and platted plaintiffs’ land as it is shown on that exhibit. He testified that when he went upon the property for this purpose, he saw frozen water extending over much of the northwest portions of Blocks 28 and 61; that he placed iron pipes at the places shown on the exhibit by driving the pipes through the ice and water where necessary; that about a week prior to trial, he returned to view the scene and found this frozen water around the northeast and southeast corner markers on Block 28 and the rest of the water located as it was when he placed the markers. He described the water as being contiguous and one body of standing water. He testified that the purple wavy lines on Exhibit 1 indicate the natural banks of Keg Slough which does have well-defined banks, and drew on that exhibit the representations of buildings which appear on Lot 1 of Block 28 and Lot 1 of Block 59 and placed an “X” on the southwest corner of Block 61 where he saw “a pile of tires” which were at the water’s edge. He also testified that he saw piles of lumber and old bathroom fixtures stacked near the bank. The plaintiff later testified he stacked lumber and used plumbing fixtures from the “X” at the southwest corner of Block 61 eastwardly along the bank to the hack of his house on Lot 1 of Block 28.

The plaintiff, L. R. Jones, testified that he was the owner of the land surveyed by Fleming and depicted in Exhibit 1 and was present when the survey was made; that on the date of the trial, water stood “ * * six feet or eight feet * * ⅜ ” from the marker at the northeast corner of Block 28 and, with reference to the banks of Keg Slough, water has extended over the bank southwardly over his land lying outside of the banks as much as twenty feet. He was asked the following question and gave the answer shown: “Q Since the 5th of October, 1960, when a decree was entered in this court to the effect you hold title to all of 28 and Lot 1 in 59 and all of Block 61 and also all of Block 28, has there been a time since then there hasn’t been some water standing on a part of Block 61 and a part of Block 28? A That’s right.” His further testimony was that his property was located about 2 miles from the defendant’s pumping station; that water brought down to the pumping station from the upper part of the drainage district backs up into Keg Slough if it is not immediately pumped out; that in June and July of 1960, water “was over a good part” of his property; that when this occurred, the Mississippi River was “down” although there had been high water on that river and on the Des Moines River in the first part of April; that from “ * * * the last of March up to about the 4th or 6th * * * ” of April the river stage at Alexandria was “21 feet and better, maybe * * * ”; that during this time there was water in the slough but none “ * * * up around my buildings or in my lumber pile or on the road.” The witness identified plaintiffs’ exhibits, stated what each portrayed, and testified that as to those exhibits showing water on his property and on the road leading to it, they depicted areas that had no water on them when the river was “ * * at its height in the last of March and first of April, 1960.” Mr. Jones further testified that it rained on the 23rd of June and that on the 24th, 25th and 26th there was water on his property outside the banks of Keg Slough; that water was on this property the 30th of June and from the 2nd through the 5th of July; that the water got so deep between his house and dry ground that he could not get out with a pickup truck; that he spoke to defendant’s superintendent, Renner, and to a Mr. Joyce and Mr. Morgan who he identified as “members of the levee district”; and that Morgan told him they wanted to leave the water in the slough. He was asked whether water had been on his property ever “Since the decree was entered in this court in the quit title suit, being No. 19652 in the Circuit Court of Clark County, Missouri * * * ” except for a time in September and October. He testified that it had and that the water goes down when the defendant operates his pumps.

On cross-examination, the plaintiff Jones testified that as to Block 59, he owned only Lot 1; that during all of the time he has owned the property to which he held title at the date of this trial, there was water inside the banks of Keg Slough except in 1953 when “ * * * she was bone dry” for “ * * * I’d say, two months”; and that the events he described on the named days in June and July of 1960 were the only times water got out of the slough banks and over his land so far as he knew since 1914. Plaintiff further testified that he “dumped some stuff” in the slough along its banks as those banks cut across his property in Blocks 28 and 61 and he had a bulldozer level it off; that his efforts in this manner resulted in building the banks of the slough 8 or 9 feet further out into the slough. Upon continued cross-examination, it was further developed that on June 23rd, plaintiff went to the pumphouse and told Renner the water was coming up. Renner told him to take his motors off; that the water was going to get a lot worse. The pumps were running every time he went to the pump-house.

The defendant’s first witness was William Klingner, a professional civil engineer specializing in land drainage, who occupies the position of consulting engineer with defendant. This witness testified that over the whole drainage district there was only a 15 foot differential in elevation with the low ground being along Keg Slough; that in his opinion, this whole area was once a part of the flood plain of the Des Moines, Fox and Mississippi Rivers and the sloughs now found in the area were once part of the Des Moines River channel although he thought that Keg Slough was once an arm of the Mississippi River; that the natural drainage of this area, as shown by the land contours, is through Hill Slough, Goose Slough, Hemp Slough, Lenard Slough and Keg Slough, into the Fox River; that these sloughs and Dry Slough were all connected, “ * * * a continuous chain of sloughs * * * ”, running about 9 or 10 miles in length from the northern part of the district to the pumping station at the southern boundary; that these sloughs have well-defined banks, with islands and bars in Hemp Slough, contained water every time he saw them, and constitute +heonly natural drainage system in the area. His further opinion was that, referring to the maps made when the defendant district was formed, these sloughs comprised a natural watercourse and, prior to the erection by defendant of its levee at the south end of Keg Slough, the natural outlet for water in Keg Slough was into the Fox River.

The witness Evans, an employee of the Corps of Engineers, U. S. Army, located at Lock 19 at Keokuk, Iowa, testified that his duties embodied the keeping of records as to rainfall and river stages; that the highest stage the Mississippi River ever attained was 21.83 on April 4, 1960; that 16 feet is flood stage; and that on June 23rd in 1960 the reading was 10.07 which was the highest reading in June or July of that year. This witness testified that he had made a detailed study of water run off from drainage districts and that in an area having a 36 inch rainfall the usual run off is about 6 inches. However, due to the peculiar soil structure of the area in question resulting in a high water table and heavy saturation of the subsoil, the run off in this area was increased by about 4 times, to 24 inches. In his opinion Keg Slough would have overflowed on more occasions than it did had it not been for the defendant’s pumps. On cross-examination, Klingner testified that Keg Slough is and has been a place for water to back up into when it reaches the pumping station and is not pumped out; and that the water level at the Jones’ property is “completely and entirely” affected by the water level at the pumping station. The witness testified that from the 2nd of June through the 23rd of that month it rained at least a trace on 13 days. The dates and respective amounts given were as follows: “On the 2nd 1.63 inches; on the 5th, .17 of an inch; on the 11th, .02 of an inch; on the 12th, .44 inch; on the 13th, 1.35 inches; on the 14th, .3 of an inch; on the 16th, .32 of an inch; on the 17th, .02 inch; on the 18th, a trace; on the 19th, a trace; on the 21st, 1.49 inches; on the 22nd, .06 inch; on the 23rd, 3.7 inches.”

Mr. French, a consulting civil engineer, concurred in the previously expressed opinion that these sloughs comprise an interconnected natural drainage system for this area, draining it into the Fox River, and gave other testimony cumulative in nature. Upon cross-examination, he testified that the ditches dug by the defendant had the effect of bringing more rapidly and by increased flow the water that would have reached the pumping station in any event.

The witness, Kirchner, age 74 and a lifelong resident of Clark County, testified he had known of Keg Slough since he was 11 years old and the only time he knew of it being dry was about 5 or 6 years prior to trial. Frank Gates, another old resident of the area, testified that Pickle Factory Slough and Keg Slough were one and the same and that he had only seen Keg Slough dry once and the rest of the time it had water flowing or standing in it. Mr. Bilbo, who had lived in this area for 62 or 63 years and who lived about D/£ blocks from the plaintiffs, testified that the one time he saw the slough dry, “It had just a little down the middle. Might as well say it was dry.” His further testimony was that if water remained at the pumping station, “It might hack up in small amounts * * * ” toward the plaintiffs’ property. Mr. Young, a member of the defendant’s Board of Directors, testified that when the water from the rest of the district comes down to the pumping station and is not pumped out, it goes in three different directions, one of which is to hack up toward plaintiffs’ property. He stated that before plaintiffs owned this property, he saw it flooded once by overflow of Keg Slough and that was on the occasion of a 9 or 10 inch rain in a 24-hour period. This comprised the defendant’s case.

Rebuttal evidence consisted of the evidence of the witness Simmons that in the three years of 1916, 1917 and 1918 when he lived a block south of the plaintiffs’ property, Keg Slough was dry “ * * * outside of a little seep water in the spring. That entire pond was dry”; that in one of those years someone had a pickle patch even with plaintiffs’ house; that he walked across Keg Slough in those years to get to work; and that, since the defendant dug the ditches in the district, there has always been water in the slough. Mrs. Simmons testified that some 50 years ago she had picked mustard greens where the water now stands within the banks of Keg Slough.

The trial court found that Keg Slough, together with the other sloughs mentioned in the evidence, comprised a natural watercourse ; that the defendant had the right to direct its drainage waters into Keg Slough ; that it did not do so in an unreasonable or improper manner; that plaintiffs sustained no compensable damage by reason of the defendant’s action; and that plaintiffs have no right to “ * * * enjoin or otherwise restrict or interfere with the lawful use of said natural watercourse by defendant in the manner disclosed by the evidence.”

We will first consider the plaintiffs’ allegations of error based upon “res judicata”. That term is one of common usage, referring to what is more accurately denominated “estoppel by judgment,” Ratermann v. Ratermann Realty and Inv. Co., Mo.App., 341 S.W.2d 280, 1. c. 290. Generally speaking, identity of the thing sued for, identity of the cause of action, identity of the persons and parties to that action, and identity as to the quality of the person for or against whom such a claim is made are essential elements of such a plea. The term may be applied to a judgment or, as plaintiffs seek its application in the instant case, as to some particular fact or issue litigated between the parties. Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118 and cases cited at [4] p. 122. The rule in this state is that where he has the opportunity, a party must plead his contention of “res judicata” whether it is used to set up the former judgment as a bar or where, as here, it is sought to assert the conclusiveness of some issue previously litigated and decided. O’Donnell v. Mathews, 221 Mo. App., 657, 284 S.W. 204, 1. c. 206 [2] and cases cited on p. 207; Rutherfurd v. Farrar, Mo., 112 S.W.2d 847, transf., Mo.App., 118 S.W.2d 79 [1] ; see the annotation in 120 A.L.R. at p. 55, n. 47. There was certainly no such pleading contained in the petition. Moreover, this record is bare of any proof as to this previous trial. The transcript fails to show the offer of any evidence of the record of such trial and no exhibits pertaining thereto have been made a part of this record. Such matters must be pleaded and supported by evidence, Snyder v. Jensen, Mo., 281 S.W.2d 819 [1, 2], Sec. 509.090, RSMo 1959, V.A.M.S.; 17A Mo. Digest, Judgment <⅜3948(1); see the Missouri cases collected in 120 A.L.R. p. 55 n. 47, p. 63 n. 48, p. 65 n. 50, and p. 66 n. 51. For other specific rulings upon the point, see Bohannon v. Camden Bend Drainage Dist., 240 Mo.App. 492, 208 S.W.2d 794, 1. c. p. 800 at [7], and cases there cited. For these reasons we find plaintiffs’ allegations of error with regard to a prior adjudication of certain issues pertinent to this case to be without merit.

Plaintiffs next contend that the trial court erred in not taking judicial notice that in still another action tried before the court, the defendant to the instant action contended that this area flooded by water was a private drainage ditch. As plaintiffs contend, a court can judicially notice its own records and, when justice requires, it should consider the records of other cases before it, Knorp v. Thompson, 352 Mo. 44, 175 S.W. 2d 889, 1. c. 894 [4], This allegation of error cannot be sustained. Plaintiffs fail to cite and examination does not reveal any instance appearing in this record where the trial court specifically refused to take judicial notice of the prior action. Neither the pleadings nor any of the proceedings in this previous case were presented to the trial court, nor are they a part of this record. If justice required the trial court to take judicial notice of the defendant’s prior position absent a showing to the contrary, we must presume that it did so. Moreover, the plaintiffs are not correct in their contention that had the trial court taken judicial notice of defendant’s position in a prior action which did not involve these plaintiffs nor the issues here presented it could not have ruled for defendant. As defendant points out what is here involved is, at the most, a quasi admission as distinguished from a true judicial admission. In May v. May, Mo.App., 294 S.W.2d 627, 1. c. 634, the distinction was made clear:

“A true judicial admission is an admission made in court or preparatory to trial, by a party or his attorney, which concedes for the purposes of that particular trial the truth of some alleged fact so that one party need offer no evidence to prove it, and the other party ordinarily is not allowed to disprove it. It removes the proposition in question from the field of disputed issues in the particular case wherein it is made. It is a substitute for evidence in the sense that it does away with the need for evidence on that subject in that cause. (Cases cited.) The true judicial admission is sharply distinguished from the ordinary or quasi admission, which is usually some form of self-contradiction and which is merely an item of evidence, available against the party on the same theory any self-contradiction is available against a witness. The person whose act or utterance it is may nonetheless proceed with his proof in denial of its correctness. It is merely an inconsistency which discredits, in greater or lesser degree, his present claim and his other evidence. It is to be considered along with the other evidence and circumstances of the case. Thus, the moment one seeks to use admissions made in other litigation, even though between the same parties, he must resort to them merely as ordinary or quasi admissions — i. e., ordinary statements or acts which now appear to tell against the party who made them or did them. (Cases cited.) * * * ”

It follows that defendant’s position in the prior action is, at the most, merely an inconsistency which is to be considered along with the rest of the case in arriving at a judgment. It cannot be held to have prevented the defendant from proceeding in this action to prove that his previous position was incorrect. May v. May, supra. This allegation of error must also be ruled against plaintiffs.

The last allegation of prejudicial error presented by the plaintiffs is that the judgment should have been for them and against defendant “ * * * because the evidence conclusively showed that Respondent had collected water and discharged it in greater quantities and force than would naturally have resulted, on Appellants, to their damage, and this is contrary to the law of Missouri.”

It is apparent from the factual situation presented in this case that the allegation that the discharge of water was in greater quantities and force than would naturally have resulted is without factual support. So far as the quantity of water is concerned, the defendant's evidence was that it was substantially the same as would have reached Keg Slough had defendant not dug and maintained its ditches. The “force” of water was in no way involved in this case. There was no contention that this water was caused to flow through these ditches with such acceleration, or discharged with increased force such as through a tube or conduit or some such narrowed opening so as to erode the land.

The plaintiffs’ theory in the trial of this case was that the defendant had no right to drain the surface waters from the rest of its district into Keg Slough. Plaintiffs referred to the water in Keg Slough as “collected water.” The plaintiffs contended that since defendant lacked the right to do so it was responsible for the damage that resulted. This damage was claimed to have arisen in two ways. First, from the fact that all of Block 30 and those portions of Blocks 61 and 28 lying within the banks of Keg Slough were flooded. The plaintiffs sought injunctive relief to prevent this situation from continuing and also sought damages for the flooding of this land. Second, from the overflow of Keg Slough over its banks and onto the plaintiffs’ land lying outside the banks of the slough. In this last regard, the plaintiffs sought injunctive relief to prevent the continuance of this condition, and also sought to recover damages for the interruption of their business, for the flooding of the buildings, and for the damage to their personal property stored along the banks of Keg Slough.

First, let us consider the plaintiffs’ allegations with respect to that part of their land lying within the banks of Keg Slough. A natural watercourse was defined in B el-veal v. H. B. C. Development Company, Mo.App., 279 S.W.2d 545, 1. c. 551, by the following quotation from Benson v. Chicago & A. R. Co., 78 Mo. 504, 514:

“ * * * ‘There must be a stream usually flowing in a particular direction, though it need not flow continually. It must flow in a definite channel, having a bed, sides or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the water flowing in the hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not in legal contemplation water courses.’ ”

The defendant’s evidence was that these sloughs were abandoned river channels, connected with each other, showing well-defined banks, dry — even by plaintiffs’ evidence — only once or twice in the memory of the oldest residents, and emptying into the Fox River until prevented from doing so by defendant’s levee. However, the evidence is devoid of any contention that there was a stream involved here and reference to the maps and plats in evidence indicates that this is not the factual situation. Compare Webb v. Carter, 121 Mo.App. 147, 98 S.W. 776. In St. Louis, I. M. & S. Ry. Co. v. Schneider, 30 Mo.App. 620, it was held that a bayou was not a natural watercourse. In Place v. Township of Union, Mo.App., 66 S.W.2d 584, it was held that a slough which was a natural drain having well-defined banks, feeding other sloughs connecting with a stream at high water and originally emptying into a creek was “ * * something more than a mere temporary conduit of surface water * * * ” and, in effect, a natural watercourse. In this case, the defendant’s expert testimony and maps illustrate that prior to the erection of defendant’s levee, Keg Slough did have a confluence with Fox and Hemp Sloughs and all then emptied into the Fox River. The reasonable inference from the evidence of confluence with other sloughs and a common mouth in the Fox River is that, in greater amount during high water than at regular flow but nevertheless steadily, these sloughs were fed in part by back-up water from the Fox River. The defendant’s evidence as to the peculiar soil structure of this area, the unusual amount of “run off water” and the length of time this slough had existed are also factors to be considered. When Keg Slough is considered in the light of all the evidence, viewed in the light we are to cast upon that evidence, we hold it to be a natural watercourse.

The fact that these sloughs comprising this natural watercourse had ditches dug in them to facilitate the flow of water therein does not change their character. In Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698, the court held that a natural drainway improved by an artificial ditch following its course and intended to be permanent should still be treated as a natural watercourse, even though the natural watercourse came into existence with the aid of the ditch.

In Haferkamp v. City of Rock Hill, Mo., 316 S.W.2d 620, 1. c. 627, it was held that a party could collect surface water in artificial drains and precipitate it into a natural drainway channel where it would otherwise naturally go. See also the annotation of this question in 28 A.L.R. beginning at p. 1262 and the Missouri cases therein cited. As to agricultural lands, see Young v. Moore, Mo.App., 236 S.W.2d 740. There is no merit in plaintiffs’ contentions with regard to the flooding of their lands lying within the banks of Keg Slough, a natural watercourse.

When considering plaintiffs’ contentions with regard to injunctive relief and damages resulting from water that came onto plaintiffs’ land lying outside the banks of Keg Slough, it is necessary to understand the nature of that water. The surface waters drained into Keg Slough ceased to be such when they reached that natural watercourse. Keener v. Sharp, Mo.App., 95 S.W. 2d 648, 1. c. 652. However, when those waters overflowed the banks of that slough the escaping water again became surface water. Goll v. Chicago & A. R. Co., 271 Mo. 655, 197 S.W. 244. As a result of holding Keg Slough to be part of a natural watercourse, the factual situation here presented is not one when there was an attempt to block off this overflow or surface water thereby throwing it onto another’s land, but one where the natural watercourse into which surface waters were drained was blocked causing the water to back up, overflow, and become surface water again. Tackett v. Linnenbrink, Mo.App., 112 S.W. 2d 160, 1. c. 163 [4].

In Happy v. Kenton, supra, it was held:

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

It would, therefore, be natural to expect the defendant in this case to contend that waters in Keg Slough were surface waters so as to avoid any possible liability for admittedly having placed a levee across this watercourse, causing the waters thereof to overflow the banks of Keg Slough and damage the personal property stored on that land. Likewise, it would be expected that plaintiffs’ theory at the trial would be that they were entitled to damages resulting from defendant’s blocking of a natural watercourse. The opposite was true throughout this trial. Defendant pled and, as held herein, proved that this was a natural watercourse although it admitted blocking the flow into a confluence with other sloughs and then into the Fox River. Plaintiffs pled and vigorously took the position throughout the trial and before this court that Keg Slough was not part of a natural watercourse. The theory they pursued is best stated in the following language from their brief:

“ * * * We believe the law to be in Missouri that a person cannot collect even surface water and discharge it in great quantities upon another to the other’s damage without being liable. We believe this principle of law has been stated many times by the courts of this state, as is illustrated by the case of Belveal v. H. B. C. Development Co., 279 S.W.2d 545, 1. c. 552.
“We believe the court further erred in admitting evidence as to the area in which the water was dumped by the respondent to be a natural water course

It is elementary that the parties are bound by their theory at trial. Plaintiffs cannot now be awarded injunctive relief to prevent the blocking of a natural watercourse nor damages resulting from that blocking when their theory both in the trial court and on appeal was that Keg Slough was not a natural watercourse.

Even if we were to allow the plaintiffs to pursue a theory upon appeal directly contradictory to their theory at trial, the plaintiffs would still not be entitled to the relief they seek. In Kennedy v. Union Elec. Co. of Mo., 358 Mo. 504, 216 S.W.2d 756,1. c. 761 [4], it was held that the burden of proof is on the plaintiffs to show that the conditions created by the defendant caused a natural watercourse to get higher than it would have without those conditions and to overflow. Plaintiffs offered no such evidence in this case. There was no showing that Keg Slough got higher after the levee was constructed than it did before, and certainly no evidence that this levee caused the overflow on the occasions in June and July 1960 for which plaintiffs seek damages. The testimony is otherwise. This levee had existed since 1927, yet Mr. Jones admitted this overflow was the first he knew of since 1914. A fair inference from the maps and plats and the testimony of the witnesses is that the banks of the slough were constant and did not move outwardly further into plaintiffs’ land after the levee. Moreover, the defendant’s witness, Evans, testified that water would have overflowed plaintiffs’ land more often had it not been for the defendant’s levee and pumps. Under these facts, the plaintiffs failed to carry the burden of proof on this issue. Kennedy v. Union Elec. Co. of Mo., supra.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J., and JACK P. PRITCHARD, Special Judge, concur.


author: WOLFE, Judge.

text:
    STANDARD MONUMENT COMPANY, Inc., a Corporation, (Plaintiff) Appellant, v. MOUNT HOPE CEMETERY AND MAUSOLEUM COMPANY, a Corporation, W. Donald Dubail, Reeves S. Dell, and John M. Lltzlnger, (Defendants) Respondents.
    No. 31260.
    St. Louis Court of Appeals. Missouri.
    July 16, 1963.
    Rehearing Denied Sept. 4, 1963.

      Robert O. Hetlage, Richard A. Hetlage, St. Louis, for appellant.
    Charles R. Judge, Dubail, Judge & Kilker, St. Louis, for respondents.
   WOLFE, Judge.

The plaintiff corporation, which deals in burial monuments and grave markers, brought this suit seeking to invalidate certain regulations imposed by the defendant cemetery company. The regulations required that burial markers be installed by the cemetery at a price based upon the size of the marker. The petition was in three counts. Count 1 charged a violation of the Missouri anti-trust statute. Count 2 alleged that the regulation was beyond the power of the defendant to adopt and the plaintiff was illegally prevented from completing contracts with those owning burial lots in the cemetery. Count 3 alleged a conspiracy among the individual officers and directors of the defendant company. The defendant counterclaimed for a sum owing for the installation of a burial marker, the installation having been made at the plaintiff’s request. The court sustained a motion to dismiss Count 1 and Count 3 of the plaintiff’s petition, and there was a finding for the defendant on Count 2, and also for the defendant on its counterclaim. The plaintiff prosecutes this appeal.

The following are the facts of the case as they appear from the pleadings and the evidence. The defendant Mount Hope Cemetery and Mausoleum Company is a corporation organized for business purposes. It owns and operates the Mount Hope Cemetery. It and its predecessor in title sold burial lots to numerous purchasers, specifying that the lots sold were for burial purposes only and subject to the rules and regulations of Mount Hope Cemetery “which have been and may hereafter from time to time be adopted.”

In 1946 a portion of Mount Hope Cemetery was set aside to be known as “Memorial Gardens”. In that section no monuments were allowed. Grave markers were permitted, and the regulations as to them had been changed from time to time. The regulation in force at the time here involved was adopted in March, 1959, and was as follows:

“MEMORIAL GARDENS
“Only bronze markers of good quality and craftmanship set flush with the turf and mounted on a granite base are permitted. -Please specify manufacturer, design, size, and catalog number. The following charges include the granite base and installation:
“Single markers (maximum size 340 sq. in.) — 26‡ per sq. in.
“Companion markers (minimum size 400 sq. in.) — 28‡ per sq. in.”

The defendant cemetery company retails bronze markers of the kind described in the regulation. It allows no monument dealer to set any bronze marker. The cemetery-company supplies a granite base to which the bronze marker is attached and sets all of the markers in the Memorial Gardens section of the cemetery, whether it sells the bronze marker or the marker is sold to the lot owner by some other dealer.

With full knowledge of these regulations, plaintiff agreed with a Mrs. Ripper to erect a grave marker on a lot belonging to her located in the Memorial Gardens section of the Mount Hope Cemetery. The remains of her husband were buried there, and the marker was to be a “double bronze marker” with both her husband’s name and her name upon it.

The marker was 48 inches by 16 inches, and it was required that it be set upon a granite base, which would cost approximately $55.00. The price of the base and the setting, according to the cemetery regulations, totaled $215.04. The purchaser had first obtained a price from the Mount Hope Cemetery and had been told that a marker 44 inches by 13 inches would cost $350.00. The plaintiff company knew the price offered by the cemetery and closed a contract with Mrs. Ripper for a larger marker and at a price $10.00 lower, in order “to bring a test case”. The marker was made as ordered from the manufacturer by the plaintiff monument company and delivered to it. It was then taken by the president of the monument company to the Mount Hope Cemetery. He asked that the Standard Monument Company be permitted to install the marker, but such permission was denied. He then offered the defendant cemetery company $100, which was refused. According to the petition, after repeated demands, the defendant company did install the Ripper marker and billed the plaintiff company for $215.04, which was the known, established price charged by the defendant cemetery company. The plaintiff president testified that he told the Mount Hope superintendent that he would not pay $215.04, and the plaintiff has never paid it.

There was testimony that a smaller marker was sold by the Standard Monument Company to another lot owner. The contract in that sale was for $185.00. The cemetery company informed the monument company that the installation price on this marker would be $87.36. The marker was never delivered to the cemetery. The president of the monument company testified that if he paid the $87.36 charge, he would have had a profit of $40.00 on the sale of the second marker. He stated that he would lose $46.00 on the Ripper contract if he paid the cemetery charge of $215.04.

The plaintiff monument company called as a witness a man who testified that he and his partner installed monuments and markers. They had been engaged in the business since 1934. They set foundations mostly in small cemeteries that had no maintenance crews. He said that six cemeteries in the St. Louis area set the grave markers by their own crews. He testified that he only charged $12.00 to dig a hole and set a marker.

The cemetery in question was started about 1912. There was a foreclosure, in which the present defendant cemetery corporation took title in 1939. In 1943 a perpetual care fund was created by setting aside, for that purpose, a part of the revenue from the sale of lots. The resetting of markers, care of monuments, and other services came out of the general revenue of the defendant corporation, and not from the perpetual care fund. The cemetery was being operated by the defendant at a substantial loss up to 1955. Since the 1959 regulation there has been a profit.

The Vice-President of the Mount Hope Cemetery and Mausoleum Company testified. He was in charge of the sale of markers and monuments. He had submitted a bid of $350.00 on the Ripper marker. A marker of the size that he bid on would have carried an installation charge of $160.00 under the regulations then in force. The marker itself would have cost between $109.00 and $117.00. A profit would consequently have been made on the sale of the marker itself.

The witness testified that when a marker is sent to the cemetery for installation, it is first checked to see that it conforms to the regulations of the cemetery. It is checked for correctness of spelling, uniformity, and quality. It is necessary to check the bolts, nuts, and washers that come with the marker. If the proper bolts are not there, then it is necessary to buy them and to thread the bolts and the nuts. Normally, it is necessary to do this, and it involves considerable time. After this is done, the bronze marker is then taken to the maintenance shed. -- The marker is not of uniform thickness and the indentations on the bottom of it are filled with cement. It is then bolted to the granite base. This base is 4 inches thick and extends 2 inches in length and width beyond the marker. The base with the marker attached is then taken to the lot located by the superintendent. The place to set the marker is indicated and a hole is dug. Sand is placed in the hole, and on top of the sand gravel. This permits water to drain away form the bottom of the base. From time to time a marker has to be reset, and no charge is made for this.

In addition to the Memorial Gardens section the cemetery had a conventional section where monuments of any kind desired might be installed by the lot owner. In this there was no restriction against dealers setting monuments and grave markers. The cemetery company would prepare a foundation in that section for a memorial 4 feet by 1 foot, for a charge of $33.50. The dealer was permitted to set the memorial marker.

The statutes upon which the plaintiff Monument Company relies are Sections 416.010, 416.040, and 416.190, RSMo 1959, V.A.M.S.

Section 416.010 declares combinations in restraint of trade to be a conspiracy, and it holds guilty “any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade * *

Section 416.040 sets forth the area covered by the statute where two or more persons enter into “arrangements, contracts, agreements, combinations or understandings * *

Section 416.090 provides that any person injured in his business by such combination may sue and recover three-fold damages.

We are confronted with a question of whether or not there is an agreement of any kind between two or more persons within the meaning of the statute. As a general rule, the cases brought under this and kindred statutes are concerned with price fixing. Where competing companies enter into an agreement within the comprehension of the statute, it is referred to as “horizontal price fixing”. When the agreement is between a manufacturer and a distributor or a wholesaler, it is referred to as “vertical price fixing”. State of Missouri on information of Dalton v. Miles Laboratories, 365 Mo. 350, 282 S.W.2d 564; Temperate v. Horstman, Mo.Sup., 321 S.W.2d 657. The facts here certainly do not bring it within either of these classifications, for the cemetery is not charged with being in combination with others selling monuments and markers or with price fixing through its own factors.

Mount Hope Cemetery and Mausoleum Company is a business corporation which owns a cemetery. It is permissible under the Missouri law for a corporation to own and manage a cemetery for profit. Plymouth Securities Company v. Johnson, Mo.Sup., 335 S.W.2d 142; Powers v. Johnson, Mo.App., 306 S.W.2d 616; United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907, 90 A.L.R. 438. The owning company holds the legal title to the land subject to an easement or burial privilege belonging to those to whom lots have been sold. Billings v. Paine, Mo. Sup., 319 S.W.2d 653.

The use of such lots may he restricted by the owning company. United Cemeteries Co. v. Strother, supra. The owning company may sell markers for the graves to the lot owners, and it is not unreasonable for it to require that the setting of such markers should be done exclusively by the cemetery company. Sections such as Memorial Gardens of Mount Hope Cemetery require mowing and care. They also require uniformity to maintain the beauty of the section. It is therefore important that the setting be done in such a way as to accommodate the lawn mowers and that the appearance, shape, and quality of the marker and its foundation conform to the others in the cemetery. Gasser v. Crown Hill Cemetery Ass’n, 103 Colo. 175, 84 P.2d 67; Terwilliger v. Graceland Memorial Park Ass’n, 59 N.J.Super. 205, 157 A.2d 567; Daily Monument Co. v. Crown Hill Cemetery Ass’n, 114 Ohio App. 143, 176 N.E.2d 268.

Another phase of the statutes relied upon, which renders them not applicable to the situation here, is that they deal with “the importation, transportation, manufacture, purchase or sale of any product or commodity in this state * * The charge here complained of is for services. In Harelson v. Tyler, 281 Mo. 383, 219 S. W. 908, the court said, 1. c. 913:

“The contract in question is one whereby men engaged in the same business have bound themselves to charge uniform rates for personal services, merely that and nothing more. The combination thus formed is not under the ban of the statute, for the reason that labor, whether physical, or intellectual, or a combination of the two, is not by any fair rule of construction a ‘product or commodity’ that is the subject of ‘importation, transportation, manufacture, purchase, or sale,’ within the meaning of the words as used in the statute.”

The plaintiff, however, contends that this arrangement, though unilateral and for services, is a “tying in” of the product sold, and that it cannot sell to the lot owners of Mount Hope Cemetery because of an unreasonable installation charge. We are cited to Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545, which was a prosecution under the Sherman Act. This case had to do with the selling and leasing of vast tracts of land by the Northern Pacific Railway Company. Most of the sales and leases had “preferential routing” clauses. These clauses compelled the buyer or lessor to ship over the Northern Pacific Railway all commodities produced or manufactured. The Supreme Court of the United States held this to be a violation of the Sherman Act. It was stated that the clause imposed an appreciable restraint on free competition in the tied product. The opinion, however, states, 356 U.S. 1. c. 6, 78 S.Ct. 1. c. 519:

“Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.”

Thus it would appear that if we were to hold that the Mount Hope Cemetery restrictions were a “tying in” arrangement— which we do not — the anti-trust law would still be without application. The cemetery in question is but one of at least forty major cemeteries in the St. Louis area, under the plaintiff’s own evidence. Its regulations could have no appreciable effect upon the marketing of grave markers.

Counsel for the plaintiff have diligently researched the points here under consideration. We are cited to a number of cases in other jurisictions. Some of these arise in states where the basic concept of cemetery operations differs from ours. Others arise in states which have statutory regulations which we do not have. All of these have been considered, but to cite and distinguish. them would serve no purpose here.

As to the reasonableness of the charge made, it is quite apparent that it is higher than a monument setting company would charge. This would not necessarily make it unreasonable if the cost of the over-all services rendered by the cemetery drew from the revenues thus received. We are not, however, required to pass upon the reasonableness of the charge. The outside dealer merely passes the charge on to the lot owner who buys from him. If the complaint is valid, it rests with the lot owner and not with the monument dealer.

As stated, there was a judgment for $215.04 against the plaintiff on the defendant’s counterclaim. The plaintiff here contends that there was no basis for an implied contract, nor was the proof sufficient to support a judgment on quantum meruit. The defendant relies upon plaintiff’s allegation in its petition wherein it is stated that numerous demands were made to have the marker installed.

The fact that the marker was installed at the plaintiff’s request and that the plaintiff knew of the defendant’s charge for such work would be sufficient, if it stood alone, to support a counterclaim of $215.04. A contract may be implied from the acts of the parties where they show a mutual intent to contract and their acts are in accord with the ordinary course of dealings. Roper v. Clanton, Mo.App., 258 S.W.2d 283; Muse v. E. A. Whitney & Son, 227 Mo.App. 640, 56 S.W.2d 848; Kelsall v. Riss & Co., Mo.App., 165 S.W.2d 329. The defendant offered no evidence on the counterclaim. Under the facts before us, however, it is apparent that the plaintiff left the marker with the defendant for installation and refused to pay the fixed charge. It offered to pay $100, and this was refused. At all times prior to the installation, the plaintiff refused to pay $215.04. The defendant had but two courses open to it. One was to return the marker, and the other was to install it at the $100 price offered. Since it did install it, the only inference that we can draw from the evidence is that it chose the latter course, and the counterclaim should have been allowed in the sum of $100.

For the reasons stated, we affirm the judgment against the plaintiff and in favor of the defendants on the plaintiff’s cause of action; and we reverse and remand the cause as to the counterclaim, with directions to enter a new judgment for the defendant in the sum of $100. Three-quarters of all costs shall be assessed against the appellant, and one-quarter against the respondents.

RUDDY, P. J., and ANDERSON, J., concur.