Bungenstock v. Nishnabotna Drainage Dist.

CourtUnited States State Supreme Court of Missouri
Citation64 S.W. 149,163 Mo. 198
PartiesBUNGENSTOCK v. NISHNABOTNA DRAINAGE DIST.
Decision Date21 May 1901

2. In an action for negligently constructing a ditch across plaintiff's land to straighten a stream and drain land in another district, whereby stagnant water was left in the old bed of the stream on plaintiff's land, to his damage, evidence was admitted, over his objection, as to the condition of the stream before the ditch was constructed, and as to the successful working of the ditch in draining the land in such district. Held, that such evidence was immaterial, but not prejudicial to plaintiff, and hence a new trial should not be granted because of its admission.

3. Where the court admitted testimony over plaintiff's objection, but no exception was taken, the ruling will not be reviewed.

4. Plaintiff sued defendant for damages for the improper location and unskillful construction of a ditch across his land. Held, that condemnation proceedings whereby defendant acquired and paid for a right of way across plaintiff's land were competent evidence as to the location of the ditch, and to show what damages were covered and paid for thereby.

5. Where defendant, having a right of way to construct a ditch across plaintiff's land, constructs it so negligently as to cause and leave stagnant water thereon, polluting his cellar and well, rendering the farm unhealthy, and destroying his crops, such ditch so constructed constituted a private nuisance.

6. Where defendant creates a private nuisance by negligently constructing a ditch across plaintiff's farm so as to leave stagnant water thereon, polluting the well and premises, and rendering the farm unhealthy, the measure of damages is the difference between the market value of the land just before and immediately after the occurrence of the injury.

7. In an action for damages for creating and maintaining a private nuisance, plaintiff need not allege or prove special damages, but, on proving the nuisance and defendant's responsibility therefor, is entitled to a verdict for nominal damages, though the evidence does not furnish a basis for estimating actual damages.

8. In an action for damages for negligently constructing a ditch across plaintiff's farm, an instruction that defendant was not required to construct its ditch so as to prevent overflow in time of high water was erroneous; the defendant's duty being to so construct it as to prevent the overflow of plaintiff's land except in case of extraordinary high water.

Appeal from circuit court, Atchison county; C. A. Anthony, Judge.

Action by Frederick Bungenstock against the Nishnabotna drainage district. From a judgment for defendant, plaintiff appeals. Reversed.

Kendall B. Randolph, for appellant. John P. Lewis, for respondent.

BURGESS, J.

This is an action for damages claimed to have arisen by reason of the improper construction by defendant, a corporation organized under the general laws of this state for drainage purposes, of a drainage ditch through plaintiff's land. The petition, after alleging the incorporation of defendant, and that plaintiff is the owner of the lands through which the ditch runs, proceeds as follows: "That said ditch or drain enters plaintiff's land and crosses through and over the same as follows: Commencing in said Nishnabotna river at a point one chain east and seven chains south of the northwest corner of the northeast quarter (¼) of section No. four (4), township No. sixty-three of range No. forty-one (41), in said Atchison county, Missouri; thence running south, two (2) degrees west, twenty-one and twenty-one one-hundredths chains, to interesect said river on the west line of said quarter section across the lands of this plaintiff. That said drain or ditch was dug and constructed during the year A. D. 1897 by defendant. That defendant still owns, maintains, and operates said drain or ditch. That said drain or ditch through and across plaintiff's land is about eight feet deep, and about twenty feet wide at the top, and divides plaintiff's land into two tracts. That by reason of the improper location and unskillful construction of said ditch, the channel or bed of the Nishnabotna river where it passes through the lands of the plaintiff above described has been so dammed up as to form a stagnant pool of water of the full width of said channel, and for a distance of two miles in length. That water stands therein during the entire year, and, having no current, becomes and is foul and noisome, and, by reason of the accumulation of stagnant water in said river channel, foul and noisome vapors arise therefrom, and the atmosphere in and about said channel and about the residence on said premises has become and is poisoned, and is thereby rendered unwholesome and unhealthy. That, by reason of the improper location and unskillful construction of said ditch, foul water is caused to accumulate in the plaintiff's cellar, and to render same unfit for use, and foul water is caused to penetrate into plaintiff's well, and to render the water thereof unwholesome and unfit for use. That by reason of the location and construction of said ditch as aforesaid, and the damming up of the channel of said river as aforesaid, water overflows and accumulates upon the pasture lands of the plaintiff, and causes the soil thereof to become and remain wet, and injures the grass and timber growing and standing thereon. Wherefore, by reason of the premises aforesaid, the plaintiff says that he is damaged in the sum of five thousand dollars, for which sum, together with the costs of suit, he prays judgment. For another and second cause of action, the petition alleges that defendant, during the years A. D. 1896 and 1897, for the pretended purpose of draining its said land, and to straighten and widen the Nishnabotna river, did construct and maintain a ditch or drain and dikes through and across the lands of plaintiff, as well as the lands of other persons. That said ditch or drain enters plaintiff's land and crosses through and over the same as follows: Commencing in said Nishnabotna river at a point one chain east and seven chains south of the northwest corner of the southeast quarter (¼) of section No. (4), township No. sixty-three, of range No. forty-one (41), in said Atchison county, Missouri; thence running south, two (2) degrees west, twenty-one and twenty-one one-hundredths chains, to intersect said river on the west line of said quarter section across the lands of this plaintiff. That said drain or ditch was dug and constructed during the year A. D. 1897 by defendant. That defendant still owns, maintains, and operates said drain or ditch. That said drain or ditch through and across plaintiff's land is about eight feet deep, and about twenty feet wide at the top, and divides plaintiff's land into two tracts. That it is impossible for plaintiff to get to his land lying west of said drain or ditch without crossing said drain or ditch, and that defendant has failed, neglected, and refused to put in a crossing or bridge across said drain or ditch for the use of plaintiff, and still refuses and neglects to put in said bridge or crossing, and that plaintiff will be put to great expense, time, and labor to build and construct said bridge, to plaintiff's great damage, in the sum of five hundred ($500) dollars. That the damages awarded plaintiff by the commissioners appointed to assess damages were damages for the right of way, and included no other damages than the damages arising from the value of the land for said drain or ditch. Wherefore plaintiff asks judgment for the sum of five hundred ($500) dollars and for his costs. Plaintiff, for another cause of action, states that defendant, its agents, servants, and employés, in the construction and making said ditch or drain during the time aforesaid wantonly and without cause did take, destroy, and appropriate to its own use the following property belonging to plaintiff: Two hundred and twenty-five (225) feet of lumber, worth six ($6.00) dollars; four hundred pounds of barbed wire, worth fifteen dollars; one hundred fence posts, worth ten dollars; seventy-two trees, consisting of oak, walnut, and ash, worth five dollars per tree, three hundred and sixty dollars. That the only pasture plaintiff had for his stock was on the said quarter section through which said ditch or drain was constructed, and by reason of the carelessness and negligence of defendant, its agents, employés, and servants, in leaving plaintiff's fence down, so plaintiff's stock could stray off plaintiff's premises, said plaintiff's stock did so stray off, and was put up, and plaintiff was compelled to pay out large sums of money to get his stock, and had to pay for damages his said stock had done, to the amount and to the damage of plaintiff in the sum of sixteen ($16) dollars, and all caused through negligence, carelessness, and wrong of this defendant, and that by reason of the gross negligence, carelessness, and wrong of defendant, its agents, employés, and servants, in leaving plaintiff's said fence down as aforesaid, plaintiff was compelled to lose the entire use of thirty acres of good pasture land, worth four dollars per acre, and to plaintiff's damage one hundred and twenty ($120) dollars. That defendant entered said lands of plaintiff with said ditch or drain, and, where defendant left said plaintiff's land with said ditch or drain, defendant, its agents, employés, and servants, wrongfully, negligently tore down plaintiff's fencing, and left the same down, so that stock strayed into plaintif...

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