Blankenship v. Kansas Explorations

• Citation: 30 S.W.2d 471,325 Mo. 998
• Decision Date: 09 July 1930
• Docket Number: 28181
• Parties: Earl Blankenship and Eula Blankenship v. Kansas Explorations, Inc., Appellant
• Court: Missouri Supreme Court

30 S.W.2d 471

325 Mo. 998

Earl Blankenship and Eula Blankenship v. Kansas Explorations, Inc., Appellant

No. 28181

Supreme Court of Missouri

July 9, 1930

Rehearing Overruled July 9, 1930.

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed and remanded.

Grayston & Grayston and Paul E. Bradley for appellant.

(1) This case was submitted to the jury on the theory of permanent damages; the petition does not contain any allegation as to the market value of the property before or after the alleged injury and therefore is insufficient to support the verdict. Sidway v. Am. Live Stock Co., 163 Mo. 342. (2) The evidence failed to establish any permanent injury to plaintiffs' property. Plaintiffs' evidence shows that the pond could be cleaned and that sludge ponds are cleaned right along; the evidence further showed that during the high water, caused by a big rain in October, 1926, a good deal of the sediment alleged to have been deposited by defendant was washed out and that plaintiff had good power for a few days. The sludge being removable, the injury was not permanent. 46 C. J. 650; Robinson v. Mining Co., 178 Mo.App. 531; Thompson v. Paving Co., 199 Mo.App. 356; Bartlett v. Grasselli Chem. Co. (W. Va.), 115 S.E. 451, 27 A. L. R. 54; Hanlin v. Meat Co., 174 Mo.App. 462; Kelly v. Cape Girardeau, 284 S.W. 521; Ivie v. McMunigal, 66 Mo.App. 437; Shoen v. Kansas City, 65 Mo.App. 134; Pinney v. Berry, 61 Mo. 359; Brown v. Railroad Co., 80 Mo. 437; Howard County v. Railway, 130 Mo. 652. (3) Defendant's Instruction 2 told the jury the evidence was insufficient to authorize a verdict for permanent injury to plaintiff's property, and should have been given. Instruction 7 told the jury that in order to find there had been a permanent injury to plaintiffs' property they must find that the conditions could not be remedied at a reasonable cost, and upon refusing No. 2, the court should have at least given No. 7. Instruction 5 told the jury that they could not find for more than nominal damages, on the theory that permanent injury had not been shown, but that plaintiffs had shown an invasion of their rights without proving the extent of their special damage, and should have been given in connection with No. 2. Instruction 14 told the jury if the conditions complained of could have been removed by the elements, by a reasonable expenditure, then the injury was not permanent, and they could find in favor of plaintiffs for nominal damages only. There was evidence that if the dam had been cut when the stuff was first put in the pond it would have washed out. This instruction should therefore have been given, the court having refused our previous instructions, as plaintiffs did not prove the amount of their special damage and recovery therefore should be limited to nominal damages. (4) Plaintiffs' Instruction B told the jury if they found the issues in favor of the plaintiffs to assess their damages in a sum sufficient to compensate them for the difference, if any, between the fair market value of their property immediately before the injury occurred and the fair market value thereof immediately after the injury, if any. This was not the proper measure of damages under the evidence in this case, and the instruction should not have been given. Robinson v. Mining Co., 178 Mo.App. 531; Thompson v. Paving Co., 199 Mo.App. 356; Northcutt v. Stone Co., 178 Mo.App. 389; Krebs v. Construction Co., 144 Mo.App. 649; Beilman v. Railway, 50 Mo.App. 151; Ivie v. McMunigal, 66 Mo.App. 437; Schoen v. Kansas City, 65 Mo.App. 134; Paddock v. Somes, 51 Mo.App. 320; Markdt v. Davis, 46 Mo.App. 272; McCracken v. Swift, 265 S.W. 91; Frick v. Kansas City, 117 Mo.App. 488; Sussex Land & Live Stock Co. v. Midwest Ref. Co., 294 F. 597; American Tar Products Co. v. Jones, 17 Ala.App. 481, 86 So. 113; Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642; Lentz v. Carnegie Bros., 145 Pa. 612; Stevenson v. Coal Co., 201 Pa. 112; Keppel v. Coal Co., 200 Pa. 649. (5) The measure of damage in this case should have been such special damage as plaintiffs sustained down to the time of instituting their suit. Defendant requested appropriate instructions on this point (instructions 12 and 13) but the request was refused. This was error. Bean v. Lucht, 165 Mo.App. 173; Pinney v. Berry, 61 Mo. 359; Benson v. Railroad Co., 78 Mo. 504; Chapman v. Amer. Creosoting Co., 286 S.W. 837; Smith v. Railway Co., 98 Mo. 20; Woolston v. Blythe, 214 Mo.App. 5; Brown v. Railroad Co., 80 Mo. 437. (6) The general rule is that it is the duty of plaintiffs to minimize the damage when he can do so at reasonable cost and reasonable effort and the jury should have been so instructed. Mahoney v. Kansas City, 106 Mo.App. 39; 17 C. J. 767.

Grover C. James and J. D. James for respondents.

(1) The petition stated a cause of action and was sufficient to support the judgment. St. Louis Union Trust Co. v. Bambrick, 149 Mo. 569. (2) The evidence established a permanent injury to plaintiffs' property. When the injury was discovered the mill pond was filled with sludge. Finding that the mill machinery was without power, the plaintiffs sought the reason, and an inspection disclosed that the mill pond had been filled with sediment and sludge from defendant's mine, having been deposited in the pond without their knowledge and without any opportunity to save their valuable water rights. 18 R. C. L. 1244; Hayes v. Railroad, 177 Mo.App. 219; Good v. West Mining Co., 154 Mo.App. 591; Troy v. Railroad Co., 23 N.H. 83, 55 Am. Dec. 177; Harvey v. Railroad Co., 129 Iowa 465, 105 N.W. 958; Risher v. Coal Co., 124 N. W. (Iowa) 764; Coleman v. Bennett, 111 Tenn. 705; Standard Oil v. Goodwin (Ark.), 299 S.W. 2; Yolande Coal & Coke Co. v. Pierce, 68 So. 563; Jones v. Sewer District (Ark.), 177 S.W. 888; Thompson v. Paving Co., 199 Mo.App. 356, 203 S.W. 496; M. K. & T. Railway v. Williams (Tex.), 5 S.W.2d 577; Adam v. Railroad, 139 Mo.App. 204; 40 C. J. 1193. Damages for permanent injury may be recovered for destruction of the productive power of land by casting debris thereon, although the continuance thereof may be abated. 18 R. C. L. 1244. (3) The injury to plaintiffs' property was not temporary, but permanent. That instruction was given on the theory of permanent damages, and told the jury that if they found the issues in favor of the plaintiffs the damages should be assessed at a sum sufficient to compensate the plaintiffs for the difference between the fair market value of their property immediately before the injury occurred and the fair market value immediately after the injury. If the injury was permanent or if the jury found that it was permanent, this instruction, of course, stated the proper measure of damages. St. Louis Trust Co. v. Bambrick, 149 Mo. 560. (4) And it is no defense to this action that the plaintiffs could but did not prevent damages to their property resulting from the nuisance created by defendant, even assuming that the plaintiffs could have done anything to prevent it. Grant v. Railroad, 149 Mo.App. 313.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This is an action for damages alleged to have been caused by the mining operations of defendant, in running and dumping sludge and debris into the mill pond of plaintiffs whereby, it is charged, the pond was so far filled as to destroy the water power by which plaintiffs had operated a custom or grist mill. The appeal of defendant is from a judgment in favor of plaintiffs in the sum of $ 10,000.

The plaintiffs, husband and wife, were owners in fee simple of a tract of twenty-four acres of land extending upon both sides of Center Creek, a non-navigable stream in Jasper County. A dam approximately eight feet high and fifty feet long extended across the creek at a point where the creek ran from north to south, and the mill stood on the west bank. The dam and mill were constructed under permission granted in the year 1869, in an ad quod damnum proceeding had in the Circuit Court of Jasper County, and the mill erected about that time was operated thereafter by plaintiffs' predecessors and thence forward by plaintiffs who acquired the property in December, 1923, until failure of sufficient water power, caused as is alleged by the act of the defendant. Since the trial of the cause, the husband, Earl Blankenship has died, and the widow, Eula Blankenship, surviving tenant by the entirety, has succeeded to the whole title.

The defendant began its mining operations in February or March, 1925, at a mine known as the Isherwood Mine, and was engaged in the extraction, milling and concentration of lead and zinc ores. Defendant's mine, mill and concentrating plant, are situated upstream from plaintiff's pond, and at a distance of approximately one-half mile therefrom.

The plaintiffs' mill consists of a building about 80 by 97 feet in size, a part of which is three stories in height, and it is equipped with machinery for grinding wheat, corn and other grains, with a capacity of forty barrels of flour per day, and thirty bushels per hour for cracking corn and making chops. The mill extended over a forebay at the west end of the dam. The forebay is about 29 feet long and 12 feet wide and about 12 feet deep and contains two large water wheels, one for operating a wheat mill and the other for the corn mill. Near the mill is a small dwelling house in which plaintiffs resided, a camp house, frame garage and hen house.

Center Creek is largely fed by springs, and the dam created a pond about one-fourth of a mile in length, which extended upstream from the dam northward for about one-eighth of a mile, thence eastward, and thence southeastward following up Center Creek. The pond, prior to its obstruction, was 50 to 120 feet in width, and from 10 to 16...