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Dunaway v. Storm

JULY 1, 1975.

FRANK DUNAWAY ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,

v.

ERVIN L. STORM ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS.



APPEAL from the Circuit Court of Shelby County; the Hon. DANIEL H. DAILEY, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 3, 1975.

The defendants-counterplaintiffs, Ervin Storm and Hazel Storm, appeal from a judgment of the circuit court of Shelby County construing and modifying a consent decree, holding them in contempt for violation of that decree and awarding attorney fees to the plaintiffs.

The plaintiffs initiated this proceeding to enforce a decree of injunction entered June 7, 1972, and to construe a portion of that decree or in the alternative to modify it, if necessary. The decree of June 7, 1972, had been entered by consent of the parties and had provided for a mandatory and prohibitive injunction of a continuing nature. The circuit court of Shelby County construed the decree, specified certain elevations for a drainageway, and in doing so modified the decree to that extent. The court also held the defendants in contempt of court and assessed fines and attorney fees.

The issues presented for review are (1) did the trial court err in construing the decree, determining its intent and then modifying particular terms to accomplish the result contemplated by the decree when considered as a whole; (2) were defendants in wilful contempt of court; and (3) was the trial court authorized to assess attorney fees against defendants?

The plaintiffs Frank and Frieda Dunaway own a 200-acre farm located immediately north of defendants' 80-acre farm, with a common boundary of a quarter of a mile. An apparently natural drainage ditch running north to south crosses the boundary between the farms at a point designated as "X" in the trial court exhibits. In 1969, defendant Ervin Storm removed a fence line between the properties, piling brush, trees and dirt south of "X", creating a brush pile approximately 150 feet long and 20 to 40 feet wide. Prior to June 1972, Storm testified that he observed only a small amount of water making its way around the pile.

In August 1970, the plaintiffs filed suit alleging that the defendants had constructed a dam south of "X," obstructing the natural drainage from their land and causing water to back up and damage their crops. The defendants counterclaimed alleging that plaintiffs had increased the amount of water flowing onto defendants' land.

On June 7, 1972, the parties entered into a stipulation and agreement, resulting in a decree of the same date by the circuit court of Shelby County. The decree provided that a ditch on plaintiffs' land was the course of natural drainage by prescription and allowed for its maintenance at current levels. In order to provide plaintiffs temporary relief, the Storms were to remove a 12-foot section of the dam not later than June 24, 1972, to allow natural drainage through the pile. In paragraph 5 of the decree, the Storms were directed to remove the brush pile to permit unimpeded drainage from point "X" across the northeast corner of the Storms' land to a point designated as "Y." The elevations to be maintained were specified as not more than 593.20 feet at point "X," 592.45 feet at a point 54 feet to the south and 590.91 feet at a point 955 feet south of the boundary. Work was to be completed not later than November 30, 1972. In paragraph 6, the defendants were further "enjoined from obstructing the natural drainageway running from Point `X' [through the defendants' land] through said drainageway in the future." The decree also stated that it was enforceable by citation proceedings.

On July 27, 1973, plaintiffs filed a petition to show cause claiming noncompliance with the terms of the decree, resulting in crop losses and the expenses of additional attorney fees. The defendants filed an answer followed by plaintiffs' petition of September 18, 1973, to construe, or in the alternative, to modify portions of paragraph 5 of the decree of June 7, 1972, so that the elevation of point "X" would not impede the natural drainage of plaintiffs' land. Defendants moved to strike and dismiss, but the motion was overruled. The defendants answered plaintiffs' motion and combined hearings were held on the petition to show cause and petition to construe or modify.

Testimony at the hearing revealed that defendants completely failed to comply with the June 7 decree within the time limits set forth and at best only technically complied with it thereafter. Frank Dunaway testified that in June, 1972, the pile was burned and a section removed, but it remained higher than "X." In August, water backed up on the Dunaway farm following heavy rains. On August 28 the Dunaways' lawyer wrote the Storms' attorney demanding compliance with the decree. There was testimony that the area north of "X" remained water-laden for a considerable period, preventing plaintiffs from harvesting crops until November. In November water again backed up on the Dunaway property.

During November 1972 Storm cut a small channel through the brush pile. He testified that he did this in order to allow water to flow from the plaintiffs' land and remarked that it had backed up. Nevertheless, water backed up again the following spring. Plaintiffs' attorney wrote the defendants' attorney in December 1972 and May 1973 demanding compliance with the decree. Later in May the Storms had the pile leveled and spread out over a larger area. The plaintiffs' expert testified that when he examined the drainage ditch in June, the leveled pile created a long gradual rise in the elevation of the land south of "X." Plaintiffs' attorney sent another letter, but once again flooding occurred in June. The defendants' expert surveyed the area in June and supervised further work performed on October 18, 1973. No other work was done.

After completion of the work, the defendants' expert surveyed the area. He stated that defendants had complied with the specific elevations set forth in the decree, but that the land sloped upwards for a distance south of "X." The plaintiffs' expert surveyed the area after the defendants had finished work. He testified that the land still rose in elevation and that defendants had not lowered the area to the elevations specified in the decree. He also testified, however, that even if the defendants had complied exactly with the terms of the decree, water would still back up on the plaintiffs' land. He stated that the land south of "X" could be no higher than 592.35 but the decree allowed for elevations between 593.20 and 592.45 feet for a considerable distance south of "X." The plaintiffs' expert testified that he became aware of this fact in November 1973. Water backed up again north of "X" in 1973, and January of 1974.

Plaintiffs testified that there was crop damage north of "X" in 1972 and 1973. The plaintiffs' attorney testified that he had billed plaintiffs $3,436.90 for services from June 21, 1972, through February 1, 1974.

The defendant, Ervin Storm, testified that he understood that the injunction required him to give immediate relief. He said that he had contacted a bulldozer operator he had employed, but that the wetness of the ground, his desire not to disturb growing crops or those planted in the fall, and the operator's inability to have the machines available, combined to delay the leveling of the pile until May, 1973. He also admitted that he owned a bulldozer for a period after June 7, 1972. When he cut a channel through the pile in November, 1972, he said he used an eye level to check the elevation, and he believed that he had complied with the decree. Storm testified that he later realized he was going to have to lower the area and did so with the help of the surveyor who testified on his behalf. He also testified the he ...


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