City of Kansas ex rel. Frear Stone & Pipe Mfg. Co. v. Swope

• Decision Date: 31 October 1883
• Citation: 79 Mo. 446
• Court: Missouri Supreme Court
• Parties: THE CITY OF KANSAS to the use of the FREAR STONE & PIPE MANUFACTURING COMPANY v. SWOPE, Appellant.

79 Mo. 446

THE CITY OF KANSAS to the use of the FREAR STONE & PIPE MANUFACTURING COMPANY

v.SWOPE, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

There was evidence tending to show that prior to 1844 Turkey creek was a living stream flowing in a northerly direction through the extreme western part of what is now Kansas City, and finally emptying into the Missouri River; that in that year there came what is spoken of as the flood of 1844, when the ground in that vicinity was submerged, and Turkey creek changed its channel, and has ever since that time emptied into the Kansas River, a considerable distance south of the mouth or outlet of the sewer in question, and then ceased to flow through what has since that time been known as the old bed of Turkey creek; that between the years 1860 and 1873 the old bed of Turkey creek on both sides of the mouth of the sewer in question had become filled up and obstructed by the construction of streets, roads, railroad tracks and buildings for about one-half its length, so that where the sewer was made to empty into it it constituted nothing but a reservoir or pond, dammed up both above and below, and without any outlet whatever; the part of the old bed of Turkey creek comprised within the limits of said reservoir, constituted a portion of the western parts of said sewer districts 129 and 130, and was located on lots belonging to defendants in those cases against which some of the tax-bills in question were issued; that said sewer was built in Fifteenth street and emptied into the old bed of Turkey creek, and nowhere connected with a public sewer or other district sewer, but whatever drainage passed through it is emptied into said reservoir; and that the mouth of said sewer was not more than 100 feet from the western boundary line of the State of Missouri.

There was also evidence tending to show that there was another sewer on the grounds of the stock-yards company in Kansas City, Kansas, emptying into the Kansas or Kaw River, which was built by said company and on its ground; that the eastern end of said company's sewer was at the pond where the western end of said Fifteenth street sewer emptied; that said sewer was constructed originally for the purpose of draining said pond as well as the grounds of said company; that the eastern end of said company's sewer was in Missouri, and about 400 feet from the western end of said Fifteenth...