Byron J. Phegley and Fern Phegley V‪.‬

This is an action by plaintiffs Bryon J. Phegley and Fern Phegley against defendant Porter-DeWitt Construction Company, Inc., for damage to plaintiffs allegedly resulting from defendant's negligence in damming, diverting and discharging surface water onto plaintiffs' land. About ten months after institution of suit, the depositions of plaintiff Byron and defendant's job superintendent Matkin were taken. Some fourteen months later, defendant filed its motion for summary judgment; and shortly thereafter the trial court sustained that motion and entered judgment for defendant. Plaintiffs appeal. From plaintiffs' petition and the depositions, we glean the following. Plaintiffs owned a tract of approximately fourteen acres, the contour of which was irregular (the legal description in the transcript being almost two pages in length) but roughly resembled that of an arrowhead pointed toward the west. This tract lay on the north side of Old Missouri State Highway No. 21 (hereinafter ""old 21"") which ran in an easterly-westerly direction. ""A small creek"" known as Flat Creek, running in a general northeasterly direction, flowed under a bridge on old 21 at a point southwest of, but near, the west ""arrowhead"" point of plaintiffs' tract. Shortly prior to plaintiffs' acquisition of this tract, their predecessors in title had conveyed to the State the right-of-way for relocation of old 21 along an easterly-westerly course through the tract, roughly paralleling old 21 and a relatively short distance north thereof.