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September 28, 1993



Before Berrey, P.j., Breckenridge and Hanna, JJ.

The opinion of the court was delivered by: Breckenridge

Rockhill Development Corporation (Rockhill) appeals from the trial court's $40,000 judgment in its favor, for damages in condemnation, against the Missouri Highway and Transportation Commission (MHTC). Rockhill asserts three points on appeal arguing that the trial court erred in: 1) instructing the jury not to consider evidence of the alleged increase in surface water drainage in its assessment of Rockhill's condemnation damages; 2) overruling Rockhill's objection to MHTC's admission of exhibit 16 which was a photograph taken after the date of the condemnation; and 3) refusing to permit Rockhill to call a rebuttal witness.

MHTC filed its petition commencing this condemnation action against Rockhill on April 16, 1990. MHTC sought to condemn a portion of Rockhill's property as part of a project to rebuild the Truman Road interchange with Missouri Highway 291 near Independence, Missouri. Rockhill's property consisted of 11.23 acres prior to condemnation and 10.37 acres after condemnation. Of the property taken, 0.86 acre was allocated for new right of way, 0.06 acre was allotted for a temporary easement to build an entrance and 0.50 acre was needed for a permanent easement made up of 0.26 acre for a waterline relocation and 0.24 acre for two drainage easements for pipes and outlets. The property was zoned M-1 which is the designation utilized by the City of Independence for industrial zoning. The date of the taking was August 21, 1990.

On August 6, 1990, the report of the court-appointed commissioners was filed awarding Rockhill $68,000 in condemnation damages. Both MHTC and Rockhill filed exceptions to the commissioners' award of damages on August 10, 1990, and Rockhill requested a jury trial. Prior to trial, MHTC filed a motion in limine, which was denied, seeking to exclude evidence of damage to the Rockhill property as a result of increased water runoff. A jury trial was held from June 8, 1992 to June 10, 1992.

On June 10, 1992, the jury awarded damages of $40,000 to Rockhill. Rockhill's motion for new trial was denied by the trial court on July 15, 1992. Rockhill filed this timely appeal thereafter.

In Point I, Rockhill claims the trial court erred in giving Instruction No. 8 which withdrew evidence of increased surface water drainage from the jury's consideration in its assessment of condemnation damages. Rockhill argues that there was substantial evidence of surface water drainage and runoff to require submission of the issue on damages.

A withdrawal instruction may be given when evidence on an issue has been received, but there is inadequate proof given for final submission of the issue to the jury. MAI 34.01. The purpose of a withdrawal instruction is to avoid misleading the jury on a spurious issue. Bradley v. Browning-Ferris Industries, 779 S.W.2d 760, 765 (Mo. App. 1989). The giving of a withdrawal instruction is within the discretion of the trial court. Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 308 (Mo. banc 1992); Bradley, 779 S.W.2d at 765. Review on appeal considers whether a reversal is required due to an abuse of the trial court's discretion. See Weisbach v. Vargas, 656 S.W.2d 797, 800 (Mo. App. 1983).

During the course of the trial, Rockhill examined two witnesses about surface water drainage. Over the objections of MHTC, the trial court allowed Rockhill to proceed on this issue. At the Conclusion of the trial, however, the court gave Instruction No. 8, pursuant to MAI 34.01 and patterned after MAI 34.02. Instruction No. 8 withdrew from the jury the issue of damages resulting from surface water runoff. Rockhill objected to the giving of the withdrawal instruction on the basis that there was substantial evidence in the case to support a factual finding by the jury that there had been some surface water damage.

"Substantial evidence is that which, if true, has probative force upon the issues and from which the trier of facts can reasonably decide a case." Sheridan v. Sunset Pools of St. Louis, 750 S.W.2d 639, 641 (Mo. App. 1988). In determining whether substantial evidence existed, the evidence must be viewed in the light most favorable to the proponent of the evidence. See Smith v. Mo. Highway & Transp. Com'n, 826 S.W.2d 41, 44 (Mo. App. 1992).

Although the trial court ruled on submissibility under the common enemy doctrine, a recent holding of the Missouri Supreme Court now governs the proof needed to make a submissible case on damage resulting from surface water runoff. In Heins Implement Co. v. State Highway Commission, No. 75313, slip op. at 1 (Mo. banc Aug. 17, 1993), the Court abrogated the common enemy doctrine in situations involving surface water runoff and adopted a doctrine of reasonable use in its stead. *fn1 Although the facts of Heins deal with inverse condemnation, the analysis of the Court pertained to whether a "taking" had occurred and, therefore, is applicable to a condemnation proceeding as well.

The Court in Heins held that a taking occurs "when, as a result of a public works project, private property is damaged by an unreasonable diversion of surface waters, whether by design or mistake. . . ." *fn2 Id. at 19. The reasonable use rule provides that "each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable." Id. at 15 (quoting Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 8 (N.J. 1956)). A defendant may be found liable if the defendant's conduct is either (1) intentional and unreasonable; or (2) negligent, reckless, or in the course of an abnormally dangerous activity. Heins , No. 75313, slip op. at 15. It is a question of fact in each case whether the gravity of the harm to the plaintiff outweighs the utility of the defendant's conduct. Id. The reasonable use concept already governs the rights of users of certain waters in Missouri and, by applying the reasonable use rule to surface water runoff, all waters over which controversy may arise as to use are governed by the same standard. Id. at 18.

A determination of whether there was sufficient evidence of Rockhill's alleged damage from surface water runoff to compel submission of the issue to the jury must begin with a review of the evidence. Clarence Stowell, one of the incorporators of Rockhill, testified that MHTC installed a thirty-inch drainage pipe upon one portion of the property taken for a permanent drainage easement. As a result, surface runoff draining onto the Rockhill property from higher ground to the north flows under Truman Road, through the culvert into an open drainage ditch and then into Spring Branch, a creek running through the property. MHTC also installed an eighteen-inch culvert on the other area it took for drainage easement. Stowell testified that, where this smaller culvert empties, there is standing water on a portion of Rockhill's remaining property caused by the overflowing of the "sump." Stowell described the "sump" as holes, dug approximately twelve inches deep and filled with rocks, into which runoff water drains and is then allowed to evaporate. Several photographs were admitted into evidence which Stowell identified as accurate representation of the property constituting the drainage easements and the "sump."

During cross-examination by Rockhill, MHTC witness Fred Steele, the registered engineer who designed the highway project for MHTC, testified that water drains to the south under Truman Road and onto the Rockhill property but would not have naturally flowed to that area before the taking. On redirect by MHTC, Steele testified that, prior to the highway project, watershed from 6.11 acres drained onto the Rockhill property and, after the project was completed, only watershed from 4.98 acres ...

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