14 S.W. 746 (Mo. 1890), Paddock v. Somes

Citation:14 S.W. 746, 102 Mo. 226
Opinion Judge:Sherwood, J.
Party Name:Paddock, Appellant, v. Somes
Attorney:Kerr & Kerr for appellant. W. H. Clopton for respondent.
Judge Panel:Sherwood, J. Ray, C. J., dissents; Black, J., regards the action of the trial court as correct in trying the cause as simply an action at law, and concurs in reversing and remanding; Brace and Barclay, JJ., concur. Ray, C. J., dissents; Black, J., regards the action of the trial court as correct ...
Case Date:November 17, 1890
Court:Supreme Court of Missouri

Page 746

14 S.W. 746 (Mo. 1890)

102 Mo. 226

Paddock, Appellant,

v.

Somes

Supreme Court of Missouri

November 17, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke, Judge.

Reversed and remanded.

Kerr & Kerr for appellant.

(1) The court erred in striking out that part of plaintiff's petition, praying for an injunction. Henderson v. Dickson, 50 Mo. 161; Mulholland v. Rapp, 50 Mo. 42; Thompson v. District, 71 Mo. 495; Sappington v. Railroad, 14 Mo.App. 86; Hall v. Johnson, 57 Mo. 521. (2) The court erred in refusing instructions asked by plaintiff. Abbott v. Railroad, 83 Mo. 271; McCormick v. Railroad, 57 Mo. 483; Shane v. Railroad, 71 Mo. 237; Martin v. Benoist, 20 Mo.App. 262. (3) The court erred in the instructions given of its own motion. Cases cited, ante. (4) The court erred in giving the instructions asked by defendant. Cases cited, supra; Wood's Law of Nuisances [2 Ed. 1883] pp. 1015, 500-521, 510, and authorities there cited, 506; Cooley on Torts, ch. 19, p. 567, et seq.; Attorney General v. Asylum, L. R. 4 Ch. App. Cases, 142; Hurdman v. Railroad, English Ct. of App. 6 C. L. J. 367.

W. H. Clopton for respondent.

(1) The court did not err in sustaining respondent's motion to strike out the part of plaintiff's petition praying for an injunction, Chancery will not always restrain by injunction a "trespasser merely because he is a trespasser." Echelkamp v. Schrader, 45 Mo. 505; Carlisle v. Stevenson, 3 Maryland Ch. 499; Herr v. Beerbower, 3 Maryland Ch. 456; Wason v. Sanborn, 45 N.H. 169; Wood v. Sutcliffe, 2 Sim. (N. S.) 163; High on Inj., sec. 722; Hil. on Inj. [3 Ed.] sec. 47, p. 636. The amount was too contemptibly small to entitle it to recognition by a high court of chancery. Laney v. Jasper, 39 Ill. 46; Smith v. Adams, 6 Paige, 435; Stewart v. City of Clinton, 79 Mo. 614. (2) The court properly declared the law. The instructions for defendant were correct declarations of law. The first instruction for defendant needs no support. The second instruction is supplemented by reason and authority. Stewart v. Clinton, 79 Mo. 603. The third instruction for defendant is erroneous only in fixing the date of the trial, instead of the date of the institution of the first suit, as the time from which the damage, if any, began. But, as the plaintiff submitted to that period in the beginning of the trial and recognized it in all his instructions, he cannot be heard to complain now. Where a case is tried throughout on one theory, it is too late to raise the objection in the appellate court that the court failed to instruct on an entirely different theory. Bank v. Armstrong, 62 Mo. 59; Fell v. Mining Co., 23 Mo.App. 224, and cases cited. The fourth instruction for defendant was proper. It declared the law as to surface water. Abbott v. Railroad, 83 Mo. 284; Beirson v. Railroad, 78 Mo. 204-12. The instructions given for plaintiff, as modified by the court, properly declared the law. Abbott v. Railroad, supra. (3) Plaintiff bought the lot with knowledge that surface water and spring water flowed over it. Laney v. Jasper, 39 Ill. 46.

Sherwood, J. Ray, C. J., dissents; Black, J., regards the action of the trial court as correct in trying the cause as simply an action at law, and concurs in reversing and remanding; Brace and Barclay, JJ., concur.

OPINION

[102 Mo. 229] Sherwood, J.

-- John Paddock brought this suit against Samuel Somes for having unlawfully laid a drain pipe across North Broadway from his premises to lots belonging to plaintiff and on which he resided and for continuing to maintain the same, thus wrongfully causing and continuing the discharge of water, drainage and sewerage from defendant's premises onto lots of plaintiff. Plaintiff asked for damages and for an injunction. The plaintiff had previously recovered a verdict and judgment for a nominal sum against the defendant for a like wrong. That judgment remains unreversed.

It was admitted at the trial that the flow of water, drainage and sewerage had continued from the time of the former trial, April 21, 1886, and that defendant created and continued to maintain the nuisance. The foregoing facts were proven on the trial. The answer was a general denial.

The petition in the present action omitting formal parts is the following:

"Plaintiff states that on or about the first day of July, 1883, the defendant then being in possession of the tract of land last aforesaid did wrongfully, wilfully and maliciously excavate and lay a drain from said tract of land, then and now in possession of defendant, across said Broadway, extending the same to and upon the building lots aforesaid of plaintiff, thereby wrongfully, wilfully and maliciously diverting from its natural course the rainfall and the water falling or being on said tract of land of defendant, as well as the drainage and sewerage; and wrongfully, wilfully and maliciously caused the same to be discharged and to flow upon the building lots aforesaid of plaintiff hereinbefore described, and unlawfully, wilfully and maliciously [102 Mo. 230] continued to maintain said pipe and flow of water, drainage and sewerage upon lots of plaintiff aforesaid, thereby rendering said lots unfit for building purposes, to the great damage of the plaintiff; that by reason of the premises plaintiff filed his petition in the circuit court, city of St. Louis, state of Missouri, against said defendant, asking damages therefor, in case numbered 69,772, on the twenty-second day of December, 1885; that upon hearing of said cause the court rendered a judgment finding said allegations to be true, and awarding the plaintiff damages therein.

"Plaintiff alleges and avers that ever since December 22, 1885, the said plaintiff and defendant have been, and are...

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