Armstrong v. City of Brunswick

• Decision Date: 31 October 1883
• Citation: 79 Mo. 319
• Parties: ARMSTRONG, Plaintiff in Error, v. THE CITY OF BRUNSWICK.
• Court: Missouri Supreme Court

79 Mo. 319

ARMSTRONG, Plaintiff in Error,

v.THE CITY OF BRUNSWICK.

Supreme Court of Missouri.

October Term, 1883.

Error to Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

A. W. Mullins for plaintiff in error.

C. Hammond for defendant in error.

NORTON, J.

This case is before us on writ of error prosecuted by plaintiff from the action of the circuit court of Chariton county in sustaining a demurrer to his petition and entering judgment thereon. The petition alleges in substance that during the months of July and August, 1880, plaintiff was lawfully possessed of a certain hotel building, situated on lots 7 and 8, and south part of lots 1 and 2, block 37, in the city of Brunswick, and that he was engaged in keeping hotel; that during the time aforesaid, Patrick Smith and Hugh Smith owned and possessed lots 6, 7 and 8, in block 29, in said city, and that the said Smiths, with the actual knowledge of the city authorites, made divers hog pens on the lots owned by them, and put therein, on the 1st day of July, about 100 head of hogs, and kept them in said pens till the 18th day of August; that by reason of said hogs being so kept, noxious, offensive and unwholesome vapors and stenches came into the said hotel and premises of plaintiff, to his great damage and that of his family, guests and boarders; that the charter of defendant with respect to nuisances provided that “the city council shall have power within the city to make regulations to secure the general health of the inhabitants and to abate, prevent and remove nuisances;” that the city council had provided by ordinance that “whenever any person shall make complaint to the constable that a nuisance exists in any part of the city, or within one mile therefrom it shall be his duty to go immediately and examine the same, and if said nuisance be of a character to be easily and readily removed, and with but slight expense, it shall be the duty of the constable to immediately remove the same; but should it be of such a character as not to be easily removed, the constable shall immediately notify the owner or occupant of the premises on or adjacent to which said nuisance may be found, to immediately remove or abate said nuisance, and if said person shall fail for six hours after such notice to remove or abate the nuisance, it shall be the duty of the constable to remove the same, and charge the expense thereof against the person whose duty it was to remove or abate said nuisance, to be recovered by...