Bollinger v. Asphalt Roof Corp.

• Decision Date: 17 June 1929
• Docket Number: No. 16615.,16615.
• Citation: 19 S.W.2d 544
• Court: Missouri Court of Appeals
• Parties: MARION BOLLINGER ET AL., RESPONDENT, v. AMERICAN ASPHALT ROOF CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

19 S.W.2d 544

MARION BOLLINGER ET AL., RESPONDENT, v. AMERICAN ASPHALT ROOF CORPORATION, APPELLANT.^*

No. 16615.

Kansas City Court of Appeals, Missouri.

June 17, 1929.

Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

REVERSED AND REMANDED.

N.R. Fisher and Cowgill & Popham for respondent.

Gossett, Ellis, Dictrich & Tyler for appellant.

LEE, C.

This is an appeal from a judgment for damages claimed to have been caused to the boating business, property, premises and personal convenience and enjoyment of plaintiffs, by the maintenance and operation of defendant corporation's roofing plant, near 15th Street and the Blue River, in Kansas City, Missouri.

The Blue River rises in the State of Kansas and runs into Jackson County, Missouri, somewhere south of the city limits of Kansas City, and flows generally northward, through Swope Park and through the city, with many meanderings, to its junction with the Missouri River near and just outside the northeast city limits. After crossing 15th Street one of its curves is slightly east of north to 13th Street (near which the city has constructed a dam, known as the Guinotte Dam), and then on to 12th Street and beyond. In the year 1927 the city completed a large main sewer running down the Blue River Valley from the south. Prior to that the river was an open sewage conduit, into which was discharged, directly or indirectly, all the sewage from approximately 22.000 acres, or sixty per cent of the city's area. Plaintiffs own a tract of land fronting 202 feet along the west river bank to the north of 15th Street, with a depth of thirty feet abutting on that street and a depth of 125 feet on its northern side, due to the eastward turn of the river. For ten or twelve years prior to 1920, and for three or four years thereafter, plaintiffs had lived with their family in a two story building on said land, in which they had four living-rooms, and the rest fitted up as a locker-room with 100 lockers, club room and boat-house. Plaintiff Marion Bollinger testified that in 1921 he had about 100 boats and a motor boat, which he rented for hire; and also stored boats for others. He also served refreshments, soft drinks and tobacco for his patrons and the public.

In 1920 defendant corporation acquired the ground north of plaintiffs' property, extending nearly or quite to 12th Street; and also that on the west or rear, of plaintiffs' land, and erected a substantial plant for the manufacture of asphalt roofing.

Plaintiffs' petition alleges, in substance, that defendant has wrongfully caused and permitted oil, noxious fluids and odorous compounds to escape from the plant into the stream, rendering it useless for boating purposes; that defendant has caused and permitted quantities of soot, smoke, fumes, odors and noxious discharges to escape from the plant, damaging and destroying plaintiffs' trees and shrubbery buildings, boats and objects thereon, and rendering the premises uninhabitable and valueless for boating or habitation; that plaintiffs had maintained their home and conducted a profitable boating business therefrom, and that defendant had knowingly caused, created and continued the nuisances set forth: that defendant had piled junk and refuse on plaintiffs' land: that large quantities of oil and noxious fluids and compounds were released and allowed to settle about the banks of the stream and on plaintiffs' property subjecting plaintiffs and their customers to having their shoes and clothing besmirched: that the boats were likewise bespaitered, damaged and ruined, and plaintiffs' business had been thereby destroyed and their boats and property rendered practically worthless; that plaintiffs had been so disturbed in the peaceable enjoyment of their property and home that they were compelled to move, and the rental value of their property was destroyed; and that all these things complained of constituted a nuisance and a violation of plaintiffs' rights and resulted in a material depreciation in the value and salability of their property.

The answer was a general denial; also that the cause of action did not accrue within five years before the commencement of the action.

There was a verdict and judgment for plaintiffs for $3,000, from which defendant brings this appeal.

At the trial plaintiffs introduced substantial testimony tending to sustain their claim as to the condition of the river and of defendant's alleged responsibility therefor. Defendant introduced testimony tending to show that the river had prior to 1920 become practically unusable for boating, because of the sewage; that the conditions complained of by plaintiffs were the result of the sewage, and that the completion of the new city sewer had relieved and corrected the objectionable situation; that there were many other factories in the vicinity, which was a manufacturing district, and that four railroads passed nearby; that the plant was so run that there was no more than an infinitesimal discharge of oil, and none of tar or creosote, which they did not use; and that their own employees, including eight women, breathed the same atmosphere without annoyance or complaint.

Appellant assigns as error the refusal of the court to give its requested instruction C, as follows:

"The court instructs the jury that the nuisance complained of, if any, was a permanent one and not a continuing one, and existed with the knowledge of the plaintiff more than five years before the filing of the action, and therefore your verdict must be in favor of the defendants and against the plaintiff."

This action was commenced on September 30, 1926. The evidence shows that appellant's plant was completed and operations begun therein on October 1, 1920; and appellant contends that it has continued to operate in substantially the same manner ever since that date (save for some improvements in method.) From this appellant argues that, whatever the damage to plaintiffs' property, it was fully clear and evident from the first day of operations; and that the nuisance then created, if any, was of a permanent nature, and that any right of action therefor was barred by section 1317, Revised Statutes 1919, prior to the bringing of this action.

The reported cases make a clear distinction in principle between those in which the erection or construction becomes a nuisance from the manner in which it is used, and those in which the erection is a permanent structure, the natural and evident effect of which from the first is to create a nuisance, though the effects may be gradual. Of the latter sort are the cases cited by appellant of Smith v. Sedalia, 152 Mo. 283, 53 S.W. 907; 182 Mo. 1, 81 S.W. 165; 244 Mo. 107, 149 S.W. 597, which involved a city sewer, and DeGeofroy v. Merchants' Bridge Ter. Ry. Co., 179 Mo. 698, 79 S.W. 386, which involved an elevated steam railway on a public street, upon which plaintiff's land abutted. In these cases it was held that the right of action accrued at the date of the original construction, and the Statute of Limitations ran from that date. In the case of Howard County v. C. & A.R.R. Co., 130 Mo. 652, 32 S.W. 651, an action for damages to plaintiff's bridge was filed in the year 1893. In holding that the claim was not barred by the Statute of Limitations the Supreme Court said:

"While the evidence tended to prove that the obstructions thrown into the stream by defendant's servants in 1885, changed the current of the stream so that in the fall of that year the water began to flow against the pier, it also tended to prove that no actual or material injury was done to the pier until within a period of five years next before the suit was brought, and the court so found and held that plaintiff's action was not barred. In this we think the court committed no error. While there is some conflict between the American cases on this subject, the rule sustained by the great weight of authority seems to be that when by wrongful acts a permanent nuisance is created and the injury therefrom is direct, immediate and complete, so that the damages can be immediately measured in a single action, the statute will begin to run from the erection of the nuisance. On the other hand, when the injury, as in this case, is not complete so that the damages can be measured at the time of the creation of the nuisance in one action but depends upon its continuance and the uncertain operation of the seasons, or of the forces set in motion by it, the statute will not begin to run until actual damage has resulted therefrom."

In the case of Powers v. St. Louis, I.M. & S.R.R., 158 Mo. 87, defendant had constructed a canal whereby the river channel was changed, causing the current to suddenly turn in an acute angle. As a result plaintiff's land was gradually washed away and flooded. The canal was completed in 1868, and the suit was begun in 1895. The court distinguished the case from the Howard County case, supra, and held that the cause of the damage was complete and visible in 1868, and held that no damages were recoverable. In the course of its opinion the court said:

"They practically claim that this is continuing nuisance, and that the damages are apportionable and can be sued for separately, until eternity, as often as a further quantum of damage is done. This is untenable. The evidence shows, and common sense demonstrates, that the damage has been and must be gradual, and that it began as soon as the permanent canal was built, and must continue until a bend is formed which will stop the wearing away of the bank. This began in 1868. At that time C.T. Tullock owned the land, ... until 1882, and all the time (fourteen years) this process of gradual wearing away was going on. He made no complaint. The cause of action to complain and to recover full compensation for all damages, present and prospective, was therefore barred as to Tullock, when he sold the land to the plaintiffs in 1882. They took the land in this...