Paddock v. Somes

• Decision Date: 17 November 1890
• Citation: 14 S.W. 746,102 Mo. 226
• Parties: PADDOCK v. SOMES.
• Court: Missouri Supreme Court

14 S.W. 746

102 Mo. 226

PADDOCK v. SOMES.

Supreme Court of Missouri.

November 17, 1890.

JOINDER OF ACTIONS — NUISANCE — INJUNCTION.

1. By pleading to the merits, defendant waives any irregularity in a petition which sets forth a cause of action for damages arising from the creation and continuance of a nuisance, and which also prays that defendant be enjoined from longer maintaining the same.

2. An oral motion to strike out a portion of a pleading should be denied, as Rev. St. Mo. 1889, §§ 2085, 2086, require all motions to be accompanied by a written specification of the reasons on which they are founded, and to be filed at least one day before being heard.

3. Under Rev. St. Mo. 1889, § 2040, which permits the union of legal and equitable causes of action when connected with the same subject of action, and under section 5491, which authorizes an injunction to issue in aid of a civil action when "the relief, or any part thereof, consists in restraining the commission or continuance of some act of the defendant, the commission or continuance of which during the litigation would produce injury to plaintiff," plaintiff in an action for the maintenance of a nuisance may properly unite in his petition a prayer for damages sustained thereby with a prayer for an injunction against its continuance. BLACK, J., dissenting.

4. A land-owner has no right to collect surface water into an artificial channel, and then cast it on the land of his neighbor; and it makes no difference in principle that some of the water thus collected consisted of spring water or drainage or sewerage water, since the wrong consists in collecting water from whatever source, and then casting it on the land of another.

5. The fact that plaintiff could have prevented the injury resulting from the nuisance by a reasonable exertion and a trifling expense does not prevent him from recovering for the damages suffered, as it was defendant's duty to abstain from the creation of the nuisance in the first place.

6. A judgment establishing the fact that defendant created a nuisance cannot be collaterally attacked in another action for the continuance of the same nuisance; and, where defendant admits the continuance, the only question for the jury is as to the quantum of damages to be recovered by plaintiff.

7. Where the existence of a nuisance has been established at law, a court of equity will grant an injunction, as a matter of course, if it is of constantly recurring character, and especially if the damages recovered are merely nominal, and therefore inadequate to prevent a repetition of the injury.

RAY, C. J., dissenting.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

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. The judgment remains unreversed. It was admitted at the trial that the flow of water, drainage, and sewerage bad 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 1st day of July, 1883, the defendant then being in possession of the tract of land last aforesaid, did wrongfully, willfully, 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, willfully, and maliciously diverting from its natural course the rain-fall, and the water falling or being on said tract of land of defendant, as well as the drainage and sewerage, and wrongfully, willfully, and maliciously caused the same to be discharged, and to flow upon the building lots aforesaid of plaintiff hereinbefore described, and unlawfully, willfully, and maliciously 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 No. 69,772, on the 22d 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 now, respectively, in possession of the said respective properties as aforesaid, and that said defendant has ever since said last date unlawfully, willfully, and maliciously continued to maintain said pipe and flow of water, drainage, and sewerage upon the lots of plaintiff aforesaid, thereby unlawfully, willfully, and maliciously diverting from its natural course the water passing or being on said tract of land of defendant, as well as the drainage and sewerage, and unlawfully, wrongfully, willfully, and maliciously causing the same to flow and be discharged upon the building lots aforesaid of plaintiff, thus continuing to render said lots unfit for building purposes to the plaintiff, to the damage of plaintiff in the sum of $5,000; that defendant, though often requested, has wholly neglected and refused to desist from the maintaining of said pipe and flow of water, drainage, and sewerage, as aforesaid, on the lots of plaintiff, rendering and continuing to render said property useless to plaintiff; that plaintiff has no adequate remedy at law, and, to avoid multiplicity of suits, plaintiff asks judgment for the said sum of $5,000, and costs, and that an injunction issue from this honorable court perpetually restraining defendant from, and ordering him to cease, maintaining said pipe and flow of water, drainage, and sewerage on the said premises of plaintiff, and for such other and further relief as to this honorable court may seem meet." The petition in the former cause, making a similar omission as before, was as follows: "Plaintiff states that on or about the 1st day of July, 1883, the defendant, then being in possession of the tract of land last aforesaid, did wrongfully, willfully, and maliciously excavate and lay a drain from said tract of land now in possession of defendant across said Broadway, extending the same to and upon the building lots aforesaid of plaintiff, thereby wrongfully, willfully, and maliciously diverting from its natural course the rain-fall and the water falling or being on said tract of land of defendant, as well as the drainage and sewerage, and wrongfully, willfully, and maliciously caused the same to be discharged and to flow on the building lots aforesaid of plaintiff hereinbefore described, and unlawfully continues to maintain said pipe and flow of water, drainage, and sewerage upon lots of plaintiff, thereby rendering said lots unfit for building purposes, to the damage of plaintiff in the sum of $5,000; for which, with the costs, plaintiff prays judgment against the defendant." The former and present petition are here presented, in order, that comparison may be instituted between them.

There was abundant testimony to sustain the allegations of the petition. At the close of the case the following instructions were presented by the plaintiff, and given or refused as hereinafter stated: Plaintiff's instruction given: "(1) The court instructs the jury that, by verdict and judgment in the case, the following facts are established," etc., "beyond contradiction: That, before the filing of the petition in the suit heretofore tried, the defendant, Samuel Somes, by a drain laid across North Broadway, caused the drainage or sewerage to flow from the premises of defendant on the west side of Broadway, and unlawfully caused the same to be discharged and to flow upon the building lots of plaintiff on the east side of North Broadway." Plaintiff's instruction refused: "(2) The court instructs the jury that, if they believe from the evidence that the defendant has, since the 22d day of April, 1886, continued to cause, or suffered, the drainage or sewerage to flow from his premises through the pipe laid from defendant's premises on the west side of Broadway onto the premises of plaintiff on the east side of Broadway, they will find a verdict for the plaintiff." Plaintiff's instruction refused: "(3) The court instructs the jury that, if they find for the plaintiff, they will assess such a sum, as damages against the defendant, as will compensate plaintiff for any injury to his lots for building purposes, caused by the flow thereon of drainage or sewerage from defendant's lot to lots of plaintiff through the pipe laid across Broadway by defendant, from and after the trial of the former suit between plaintiff and defendant, on April 22, 1886." Plaintiff's instruction refused: "(4) The court instructs the jury that, if they believe from the evidence that, since the trial of the suit heretofore tried between plaintiff and defendant, defendant has willfully and with malice continued the flow of drainage or sewerage through the pipe across North Broadway, from the premises of defendant onto the lots of plaintiff, they will, in addition to any damage they may assess for the injury, if any, to the lots of Paddock for their use for building purposes, assess and find in their verdict punitive and exemplary...