281 S.W. 56 (Mo.App. 1926), Kennedy v. City of Nevada

Citation281 S.W. 56, 222 Mo.App. 459
Opinion JudgeBLAND, J.--
Party NameKATE KENNEDY, RESPONDENT, v. CITY OF NEVADA, APPELLANT. [*]
AttorneyC. E. Gilbert and W. H. Hallett for respondent. A. J. King and M. T. January for appellant.
Judge PanelBLAND, J. Arnold, J., concurs. Trimble, P. J., absent.
Case DateFebruary 01, 1926
CourtCourt of Appeals of Missouri

Page 56

281 S.W. 56 (Mo.App. 1926)

222 Mo.App. 459

KATE KENNEDY, RESPONDENT,

v.

CITY OF NEVADA, APPELLANT. [*]

Court of Appeals of Missouri, Kansas City

February 1, 1926

Appeal from the Circuit Court of Vernon County.--Hon. Berry G. Thurman, Judge.

REVERSED.

Judgment reversed.

C. E. Gilbert and W. H. Hallett for respondent.

A. J. King and M. T. January for appellant.

BLAND, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

Page 57

[222 Mo.App. 460] BLAND, J.--

This is a suit in two counts, based upon an alleged nuisance maintained by the City of Nevada. The first count is for damages caused by reason of the maintenance of the nuisance; the second count asks for injunctive relief to restrain the city from continuing the nuisance. The trial resulted in a judgment in favor of plaintiff on the first count in the sum of $ 175 and on the second count [222 Mo.App. 461] in perpetually enjoining defendant for continuing the nuisance. Defendant has appealed.

The facts show that defendant has been maintaining a tourist camp on a block of land within the city limits of Nevada, alleged to be owned by the city. On the tourist camp grounds the city maintained four shower baths and two toilets which were connected with a cesspool. There was a drain connected with the cesspool that led out into Walnut street where it became an open ditch, or gutter. Plaintiff's property was located diagonally across from the block of land containing the tourist camp and on the opposite side of the street from the ditch. The water that was discharged upon Walnut street from the cesspool contained human feces and gave forth vile and nauseating odors. Whether Walnut street is a public street is not shown.

The answer sets up as a defense, among other things, that the city had no right to acquire land for the purpose of conducting a tourist camp, a space merely for the accommodation of travelers, not residents of the city, who might pass through, as a place of rest and to cook their meals.

The evidence shows that various motions were made and carried in the city council to purchase the land in controversy for a tourist camp; that committees of the council were appointed to erect improvements; that these improvements consisted of toilets, shower baths, kitchen, etc., and were paid for by the city; that the committees made various reports, a caretaker of the park was appointed, the city paid the consideration recited in the deed for the purchase of the land and the deed conveying it to the city was duly recorded. There was, however, no ordinance passed for the purchase of the ground or for the acceptance of the deed or for the using of the park or for fixing its dimensions.

Defendant insists that the city had no power to purchase land for the maintenance of a tourist camp and therefore was not liable in this case. Plaintiff makes no claim of any express authority given cities of the third class, of which defendant is one, to purchase land for a tourist camp. However, plaintiff contends that by virtue of section 8205, Revised Statutes 1919, "there is no limit of the power of a city to purchase and hold real estate. The only limitation would be whether or not such city had funds legally available for such purpose." If this is the law, third class cities of this State may purchase office buildings, hotels, department-store structures and the like regardless as to whether they are fitted for municipal purposes. Section 8206 provides that cities of the third class, among other things--

". . . may receive and hold property, both real and personal, within such city, and may purchase, receive and hold real estate within or without such city for the burial of the dead; and may purchase, hold, lease, sell or otherwise dispose of any property, real or personal, it now owns or may hereafter acquire; may receive bequests, gifts [222 Mo.App. 462] and donations of all kinds of property; and may have and hold one common seal, and may break, change or alter the same at pleasure, and all courts of this State shall take judicial notice thereof."

It will be noted that the language of the statute is unusual, the only connection in

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which the word "purchase" is used is in reference to burial grounds, and to the disposal of property that the city may own. But conceding that this section standing alone gives unlimited authority to such cities to purchase real estate, there are other provisions of the laws of the State restricting that right on the part of cities. We refer to sections 1, 3 and 10, of Article 10, of the Constitution. Under the provisions of these sections cities have the power to levy and...

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