Joplin Consolidated Min. Co. v. City of Joplin

Decision Date09 July 1894
Citation27 S.W. 406
PartiesJOPLIN CONSOLIDATED MIN. CO. v. CITY OF JOPLIN et al.
CourtMissouri Supreme Court

Barclay, J., dissenting.

Appeal from circuit court, Newton county; M. G. McGregor, Judge.

Action by the Joplin Consolidated Mining Company against the city of Joplin and others. Judgment for plaintiff. Defendants appeal. Reversed.

J. C. Trigg, J. W. McAntire, and Geo. Hubbert, for appellants. Galen Spencer, for respondent.

BLACK, C. J.

The plaintiff corporation brought this suit to enjoin the city of Joplin (a city of the third class, having a population of ten or twelve thousand inhabitants) from building a public sewer over certain lands owned by plaintiff. The circuit court made the temporary injunction perpetual, and the city appealed to the St. Louis court of appeals. That court transferred the cause to this court because of certain alleged constitutional questions raised by plaintiff in support of the decree of the circuit court.

There is no dispute as to the following general outline facts of the case: The plaintiff corporation is the owner of the S. W. ¼ of the N. W. ¼ of section 2, etc., and also other lands north of and adjoining said 40-acre tract. These lands are all on the north side of the city, but within the corporate limits thereof. Joplin creek enters the 40-acre tract first above described near the southeast corner thereof, and runs thence, in a northwest direction, to a point near the northwest corner of said tract. There it passes over plaintiff's land, and runs in a general northern direction for the distance two or three hundred feet, and then turns to the east, and passes northward over and across the lands of the plaintiff, which adjoin and lie to the north of the 40 acres first before mentioned. On the 3d September, 1890, the city council passed an ordinance, numbered 302, establishing a general sewer system according to what is called the "Rosewater survey," — a survey made by a sanitary engineer, as the result of much care and study on his part. The outlet section specified in the survey and ordinance begins at a point near the north line of the 40 acres, and runs north along the valley of Joplin creek to Turkey creek. It seems the city was unable to build the entire system at one time, so that this Turkey creek section was abandoned for the time being. On the 12th November, 1890, the council passed another ordinance, numbered 342, providing "that a public sewer be established as heretofore provided by ordinance" across the 40 acres; describing the course and boundaries of a strip of land 10 feet in width, and declaring that the land so described "is hereby taken and condemned for public use as a part of the said public sewer route and just compensation therefor shall be assessed, collected and paid according to law." The strip of land thus described begins on and near the middle of the south line of the 40 acres, and runs thence, in a northerly direction, to a point near the northwest corner of that tract, where it ends in Joplin creek, at a point on the west line of the plaintiff's 40 acres. The sewer is to be 20 inches in diameter, and will be so constructed as to discharge its contents into Joplin creek at the point where it ends in that creek.

It is alleged in the amended petition that the city, without right or authority, entered upon the 40 acres, and began the construction of the sewer; that it proposes to build the same over the land without first paying the plaintiff the damages which it will sustain. The answer justifies under proceedings had to condemn the property. The evidence on these issues shows that proceedings to condemn the strip of land were had, and the damages assessed at $500; that the plaintiff in this suit was served with notice in these proceedings; that the plaintiff appealed from the award to the circuit court; that the award was confirmed by the city council, and the $500 paid to the clerk of the circuit court for the plaintiff here (the defendant there). Thus matters stood when this suit was instituted. A change of venue was awarded in those proceedings, and they were still pending when this suit was tried. From the pleadings and evidence it appears that Joplin creek is 15 or 18 feet wide at the point where the sewer will discharge its contents. The banks at and below that point are low, the water shallow, and the course of the stream illy defined. The water has been used for washing lead and zinc ores. On rare occasions the creek becomes dry, but in general there is a considerable body of water flowing down through plaintiff's land. The plaintiff produced much evidence tending to show that the sewer will pollute the water, and render it useless, and that plaintiff's land on either side of the creek will be damaged by reason of deposits thereon of sewer matter. On the other hand the defendant produced evidence tending to show that the water in the creek is now unfit for any domestic use, and that there is an abundance of water flowing down the same to carry off all the matter which will be discharged into it. In the view we take of this case, it is not necessary to enter into the details of the evidence of the character just mentioned.

1. The proprietor of land through which a stream flows cannot insist that the water shall come to him in the natural, pure state. He must submit — and that, too, without compensation — to the reasonable use of it by the upper proprietors, and he...

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