Cambest v. McComas Hydro Electric Co.
| Decision Date | 14 March 1922 |
| Citation | 239 S.W. 477,292 Mo. 570 |
| Parties | VIRGIL CAMBEST et al. v. McCOMAS HYDRO ELECTRIC COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Lawrence A. Vories Judge.
Retransferred to Kansas City Court of Appeals.
John E Dolman and Sam Wilcox for appellant.
The trial court erred in refusing an appeal to the Supreme Court. Bingaman v. Hannah, 171 Mo.App. 186; Null v Howell, 40 Mo.App. 329; Musick v. Railroad, 43 Mo.App. 326; State v. Dennisse, 41 Mo.App. 22; In re Opening Essex Avenue, 44 Mo.App. 288; Boche v. Hammett, 61 Mo.App. 457.
Strop & Mayer and Graham & Silverman for respondent.
(1) The Supreme Court has no jurisdiction of this appeal. Appellant cannot confer jurisdiction upon that court by statements contained in its affidavit for appeal. State ex rel. v. Reynolds, 256 Mo. 710; Tobacco Co. v. Rombauer, 113 Mo. 439; State ex rel. v. Gill, 107 Mo. 44. (2) In order to give the Supreme Court jurisdiction it is necessary that the proceedings upon the trial of the case show the facts from which the jurisdiction of that court may be ascertained. Neither the petition, evidence nor judgment in this case show the value to respondents of the relief awarded nor the expense to appellant of complying with the decree. Under such facts the Supreme Court will decline jurisdiction. Albers v. Moffitt, 262 Mo. 645; Gast Bank Note & Lith. Co. v. Fennimore Assn., 147 Mo. 557; Bowles v. Troll, 262 Mo. 377; Foundry & Mfg. Co. v. Moulders Union, 251 Mo. 448; Clothing Co. v. Watson, 168 Mo. 142; Heman v. Wade, 63 Mo.App. 365.
OPINION
This is an injunction proceeding brought to restrain defendant from maintaining a dam fifteen and one-half feet in height across the Platte river. Plaintiffs are the owners of land in Buchanan and Platte counties abutting upon and in the immediate vicinity of the said river.
The petition alleges that the Platte river is a navigable stream; that defendant has wrongfully and unlawfully dammed, hindered and obstructed the waters thereof and has constructed and is maintaining across said river a dam substantial and permanent character, extending from shore to shore; that in the year 1847 a dam was constructed across said river at the place where defendant has its present dam, by one Archibald Woods and others under authority of an act of the Legislature of the State of Missouri enacted in 1845, but that for many years prior to the erection by defendant of the dam in controversy the Woods dam had fallen into decay, had been abandoned, and no longer operated to hold back the waters of the said river; that in the year 1914 defendant, without warrant or authority of law, entered into the waters of said river and constructed its present dam at approximately the location of the former dam but to a much greater height; that the said dam so constructed has rendered the navigation of said river impossible, has caused it to leave its banks and overflow the land of plaintiffs, and has inundated the roads and highways in the vicinity so as to render them impassable; that by reason of the overflow of said river the lands of plaintiffs have become wet and marshy and their value has been depreciated; that the waters so overflowing have congregated into pools and ponds and become foul smelling and breeding places for mosquitoes and insects and a menace to the health of plaintiffs and their tenants. The prayer of the petition is that defendant be enjoined and restrained from longer maintaining said dam and that it be required to remove the same, or, in the event the court should find that defendant is entitled to maintain the same to the height to which the dam constructed under the act of 1845 was erected, that the defendant be then required to remove all portions extending above the height of the former dam.
The answer of defendant, in addition to a general denial, pleads the act of 1845, asserts that defendant has acquired the right, title and interest of Woods and others under said act, and alleges that by the terms of said act it is provided that any person injured as a result of the erection of the dam therein contemplated is confined to applying to the Circuit Court of Platte County for a writ of ad quod damnum. The answer further alleges that in 1914 defendant reconstructed said dam and constructed a large hydro-electric power plant, at an expense, of $ 100,000, for the purpose of furnishing electric light and power to the people of Platte County, and has, since January 1, 1916, been operating said plant; that none of plaintiffs have ever protested against the reconstruction of said dam or the power plant, or ever claimed that the dam was injurious until long after the same had been completed and defendant had expended said large sum of money, and that plaintiffs are now estopped by their laches; and that whatever consent was necessary to be obtained from the United States Government relative to the maintenance of said dam was duly obtained prior to the reconstruction thereof.
The reply was a general denial.
Upon a trial of the case before the Circuit Court of Buchanan County, the court found that defendant was maintaining a dam fifteen feet and six inches in height entirely across the Platte river; that the same constituted a public nuisance, that plaintiffs had suffered special and irreparable injury and damage therefrom, and that as to plaintiffs the said dam had become a private nuisance as well as a public one; and that defendant was entitled to have and maintain a dam where the dam constructed by defendant is located, to a height of eight feet and no more. The judgment of the court was that defendant be perpetually enjoined from continuing and maintaining the dam owned by it to the height of fifteen feet six inches; that it abate, remove, pull down and destroy seven feet six inches off of the top of said dam, extending entirely across the length thereof, so that said dam after said abatement shall be seven feet six inches less in height than the same is as now constructed and maintained; and that if defendant fails, within thirty days, to remove and destroy such part of its dam, then the Sheriff of Platte County shall carry into effect that part of the decree of the court, the cost of abatement to be taxed as costs against defendant.
From the judgment thus rendered the defendant applied for an appeal to this court, setting forth in its application the following reasons, to-wit:
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