Anheuser-Busch Brewing Association v. Peterson

• Decision Date: 02 October 1894
• Docket Number: 5746
• Citation: 60 N.W. 373,41 Neb. 897
• Parties: ANHEUSER-BUSCH BREWING ASSOCIATION ET AL. v. JOHN C. PETERSON
• Court: Nebraska Supreme Court

60 N.W. 373

41 Neb. 897

ANHEUSER-BUSCH BREWING ASSOCIATION ET AL. v. JOHN C. PETERSON

No. 5746

Supreme Court of Nebraska

October 2, 1894

ERROR from the district court of Cass county. Tried below before CHAPMAN, J.

Judgment reversed as to Adolphus Busch and affirmed as to Anheuser-Busch Brewing Association.

John C Watson and A. N. Sullivan, for plaintiffs in error:

If property is so constructed as to be a nuisance, the tenant is not liable. (Gillilan v. Chicago & A. R. Co., 19 Mo App., 411; Swords v. Edgar, 59 N.Y. 28.)

The public should pay damages resulting from public acts. (City of Aurora v. Reed, 57 Ill. 29; Wood, Law of Nuisance, secs. 144, 749; City of Jacksonville v. Lambert, 62 Ill. 521.)

The motion to quash the service made upon Busch outside the state was erroneously overruled. (Code, secs. 77, 81; Blair v West Point Mfg. Co., 7 Neb. 150; 1 Story, Constitutional Law, sec. 539; Murphy v. Lyons, 19 Neb. 689; Atkins v. Atkins, 9 Neb. 191; Fulton v. Levy, 21 Neb. 478; Holmes v. Holmes, 15 Neb. 615; McGavock v. Pollock, 13 Neb. 535.)

Surface water is a common enemy which a lot-owner may fight by raising his lot to grade or in any other proper manner. (Freberg v. City of Davenport, 18 N.W. [Ia.], 705; 2 Dillon, Municipal Corporations, secs. 1041-1044.)

The owner has a right to obstruct and hinder the flow of mere surface water upon his land from the land of another. (O'Connor v. Fond du Lac, A. & P. R. Co., 52 Wis. 526; Kansas City & E. R. Co. v. Riley, 33 Kan. 374; Abbot v. Kansas City, St. J. & C. B. R. Co., 83 Mo. 271.)

The lot-owner is not bound to provide drains or water ways to prevent the accumulation of surface-water upon adjacent lands, the natural flow of which is interrupted by changes in the surface of his own lands, caused by improvements thereon. (Pye v. City of Mankato, 36 Minn. 373; Alden v. City of Minneapolis, 24 Minn. 262; Rowe v. St. Paul, M. & M. R. Co., 41 Minn. 384; Jordan v. St. Paul, M. & M. R. Co., 43 N.W. [Minn.], 849.)

S. P. Vanatta, contra:

The owner of land has no right to collect surface water thereon and discharge it so as to injure the land of his neighbor. (Livingston v. McDonald, 21 Iowa 160; 1 Thompson, Negligence, pp. 19, 77.)

An action will lie for the recovery of damages caused by the accumulation of surface water into a pool where it percolates through the earth into a cellar on an adjoining lot. (Crommelin v. Cox, 30 Ala. 318; 6 Wait, Actions & Defenses, p. 277.)

When a man is in possession of fixed property, he must so manage it as not to injure others. (Taylor, Landlord & Tenant [6th ed.], sec. 178; 1 Thompson, Negligence, p. 80, sec. 2.)

OPINION

POST, J.

This was an action by the defendant in error in the district court for Cass county. From the allegations of the petition it seems that on the 14th day of March, 1887, Adolphus Busch, who was then and still is president of the Anheuser-Busch Brewing Association, a corporation (hereafter called the "Brewing Association"), purchased lot 9, in block 33, in the city of Plattsmouth. On the date above named said Busch leased said premises to the Brewing Association, and that said corporation immediately took possession thereof and continued to occupy the same until after the accruing of the plaintiff's cause of action; that during the year 1889 the plaintiff below and one Rasmus Peterson were the owners of lot 10 immediately adjoining the premises above described, upon which was situated a large ice house, and which, including a cellar or basement thereunder five feet deep, was, at the time of the wrongs complained of, filled with ice. During the year 1889 the defendants undertook to fill up lot 9 so as to correspond to the surrounding lots, and that in the execution of said enterprise "hauled and dumped into and onto said lot 9 large quantities of earth and partially filled up said lot, and that they so carelessly and negligently filled up said lot as to draw and throw the surface water collecting thereon up to and against the west side of the plaintiff's ice house." It is further alleged that on said lot 9, and within two feet of the plaintiff's ice house, is situated a privy and privy vault, and that in filling up said lot the defendant left large "sag holes," into which the surface water on said lot and surrounding premises accumulated and from which, by the natural percolation thereof, it entered the plaintiff's ice house by way of said privy vault, thereby destroying and rendering worthless a large quantity of ice. It is also alleged that the plaintiff has by assignment acquired whatever right of action existed in favor of the said Rasmus Peterson. Personal service of summons was made upon the defendant Busch in the city of St. Louis, in the state of Missouri, who entered a special appearance and moved to quash the service of summons against him on the ground that it was unauthorized by statute and void. Said motion having been overruled, he answered, first, challenging the jurisdiction of the district court, by proper averments alleging that the service of the summons in the state of Missouri was without authority of law and conferred upon the court no jurisdiction of his person; second, a plea to the merits, which need not be noticed in this connection. The Brewing Association filed an answer, which, after admitting its possession of lot 9 by virtue of a lease from its co-defendant, Busch, is in effect a general denial. Upon the issues thus formed a trial was had, resulting in a verdict against both defendants; whereupon separate motions were made for a new trial, which were overruled, and judgment entered in accordance with the verdict, and which is the judgment complained of in the proceeding.

We will first consider the question of the jurisdiction of the district court over the defendant below, Busch. It is said by counsel for the defendant in error that that question is not presented by this record, for the reason that Busch submitted to the jurisdiction of the court by his answer to the merits of the case. There is to be found some support for that contention in the earlier cases in this court, but in Hurlburt v. Palmer, 39 Neb. 158, 57 N.W. 1019, the cases were subjected to a careful examination, and the conclusion announced that under the provisions of the Civil Code it is proper to plead as a distinct defense any facts not appearing from the petition whereby it is made known that the court has no jurisdiction of the person of the defendant or the subject-matter of the action. That case we must regard as decisive of the question under consideration. It was the right and duty of the defendant Busch to direct the attention of the court to the fact that it had failed to acquire jurisdiction of his person by means of its process. That such facts constitute a defense within the meaning of section 99 of the Code is clear from the reasoning in Hurlburt v. Palmer, supra. The plaintiff below did not by his reply controvert the allegations of the answer showing that service of summons was made upon the defendant in Missouri. That such service is unauthorized by law and insufficient to confer upon the court jurisdiction of the defendant's person, seems clear from a careful reading of the Code. The only provision for service of summons outside of the state is found in section 81 and reads as follows: "In all cases where service may be made by publication, and in all other cases where the defendants are non-residents, and the cause of action arose in the state, suit may be brought in the county where the cause of action arose, and personal service of summons may be made out of the state by the sheriff or some person appointed by him for that purpose." Reference to the decisions interpreting the above, or like provisions, is unnecessary in this opinion. It is sufficient for our present purpose that it has uniformly been held to be a mere substitute for constructive service in actions such as those enumerated in section 77 of our Code. Service by publication, or in any other manner authorized by statute, is sufficient to advise non-residents of proceedings against their property which is brought under the control of the court by seizure or some act equivalent thereto. As said by Mr. Justice Field in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565: "The law assumes that property is always in possession of its owner, in person or...