Bungenstock v. Nishnabotna Drainage Dist.
Court | United States State Supreme Court of Missouri |
Citation | 64 S.W. 149,163 Mo. 198 |
Parties | BUNGENSTOCK v. NISHNABOTNA DRAINAGE DIST. |
Decision Date | 21 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.
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: ...
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