Brown v. Scruggs

Citation141 Mo. App. 632,125 S.W. 537
PartiesBROWN v. SCRUGGS et al.
Decision Date07 February 1910
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County.

Action by D. D. Brown against Rosamond A. Scruggs and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

John I. Williamson, for appellant. John T. Harding and Edw. J. Shannahan, for respondent Kansas City. Jas. C. Reiger and F. M. Hayward, for respondent Scruggs.

JOHNSON, J.

Plaintiff sued to recover damages resulting from an injury to his property caused by a nuisance set up and maintained in a public street of Kansas City. At the trial, he dismissed defendant Rosamond A. Scruggs from the action, and proceeded against defendant city. At the conclusion of his evidence, the court peremptorily instructed a verdict for defendant. Plaintiff took a nonsuit, with leave to move to set the same aside, and in due course brought the case to this court by appeal. The facts of the case are as follows:

In 1906, plaintiff owned real property on Grand avenue at Twenty-Third street, and occupied the place with a livery stable which faced on Grand avenue and extended back (east) to McGee street. Plaintiff's property is low ground. Eastward from its rear end is a steep acclivity which begins with the west line of McGee street. This street had never been graded or improved by the city nor in any way opened to public travel. Some years before it had been condemned by the city and vacated for street purposes. Over the protests of plaintiff, made at various times, to officers of the city, strangers had been suffered to make a dumping ground of the street, and had gradually built up an embankment of refuse which served as a dam to collect and retain surface water. On the 23d of August, 1906, during a rain storm, this dam broke and precipitated the contents of the pond into the stable. A large amount of personal property was destroyed and other damage done. Plaintiff invokes the rule that "If in the exercise of its corporate powers a...

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