Clark v. City of Springfield

• Decision Date: 08 May 1951
• Docket Number: No. 6975,6975
• Parties: CLARK et al. v. CITY OF SPRINGFIELD.
• Court: Missouri Court of Appeals

Page 100

241 S.W.2d 100

CLARK et al. v. CITY OF SPRINGFIELD.

No. 6975.

Springfield Court of Appeals, Missouri.

May 8, 1951.

Howard C. Potter, Meredith B. Turner, Springfield, Ray E. Watson of Watson, Richart & Titus, Joplin, for appellant.

Kirby W. Patterson, Springfield, for respondent.

VANDEVENTER, Presiding Judge.

This is a suit for damages alleged to have been sustained by plaintiffs (respondents) by reason of a nuisance maintained by defendant-appellant. The nuisance was alleged to be caused by the overflow of surface and sewage waters onto and across plaintiffs' land. From a judgment in favor of plaintiffs, defendant appealed.

The petition alleges that plaintiffs, since April 29, 1946, have owned lots 23 and 24 in the Third Addition to Fairfield Acres and that said lots have been improved by the erection of a dwelling house and other buildings thereon; that plaintiffs, together with their family, live in said dwelling house and were deprived of the comfortable use and enjoyment of their home by reason of a nuisance maintained by defendant. That the defendant maintained near plaintiffs' premises a sanitary sewer which drained southwesterly, and down in the direction of plaintiffs' home, to a point about one block east thereof where it turns to the left, proceeding south on West Avenue to where a pump is installed for the purpose of raising the sewage so that it will flow, by force of gravity, to the Southwest Disposal Plant; that at the turn in said sewer there is a manhole and also a short distance northeast and up the sanitary sewer line from that place another one, and that the covers of each contain some 30 holes about one-half inch in diameter; that on numerous occasions after ordinary rain falls, as well as after heavy storms, the valume of sewage carried in the sanitary main has been augmented by great volumes of surface waters flowing through drains maintained by defendant into the sewer main; that the pressure of the accumulated water forced the manhole cover off at the low point and bend in the line, causing the sewage, composed of filth and human excrement to boil and spout in the air, and from there flowing along the ground in a southwesterly direction onto plaintiffs' property. That at times when the pressure of the sewage water is not sufficient to force the cover from said manhole, the raw sewage would spurt up through the holes in the cover and flow upon plaintiffs' premises; that the defendant further added to and augmented said nuisance by maintaining a drain for surface water consisting of a metal pipe approximately one yard in diameter, which collects water that flows along the gutters and drains in that section of the city and facilitates its passage to a point about 300 feet northeast of the turn in the sanitary sewer and there discharges in great volume said surface water onto the neighboring land, from which it flows by force of gravity down upon plaintiffs' premises; that on numerous occasions, this sewage and surface water, so flowing, surrounded plaintiffs' dwelling house on all sides, carrying away large quantities of plaintiffs' soil and upon recession of the water, leaving deposits of raw human excrement, filth, etc., which caused a sickening smell and attracted large swarms of flies to such an extent that plaintiffs were compelled to close their windows in the hottest weather; that plaintiffs dug a well in 1947, to supply water for their home, which at first produced an abundance of clear potable water but after the flooding aforesaid, it was so contaminated and emitted such foul and noxious odors as to become completely unfit for drinking purposes; that it was permanently polluted by the overflow of sewage and surface waters and its usefulness completely destroyed; that after several attempts and considerable expense plaintiffs succeeded in getting an adequate well but in the meantime were compelled and did haul water for household purposes at great personal inconvenience. They prayed judgment for $5,000.

Defendant's answer admitted the maintenance of an underground sanitary sewer running in the directions alleged in the petition, the location of the manholes and that the iron covers for them were perforated with small holes and denied all other allegations of said petition. Further answering, defendant asserted that plaintiffs' property was located in the natural passage point for drainage water from a large portion of the neighboring properties, that this condition had existed for many years and that it had during that time been overrun and flooded by surface water in periods of wet weather; that plaintiffs disregarded these facts when they purchased the property and erected the improvements thereon and that they had attempted to erect barriers and fills against surface water invasion, but such attempts only succeeded in stagnating the flow of such waters, so that miscellaneous filth and debris gathered by such surface waters from the area drained is partially, if not wholly collected or deposited near their premises; that if the conditions described in plaintiffs' petition are true, it was brought about by their own lack of careful and prudent planning in the erection or construction of improvements, barriers and fills.

It was then alleged that the sanitary sewer was constructed in 1936 and is a portion of the permanent sewage system of defendant, had been used continuously since that time and long prior to the acquisition of property by plaintiffs and that their claim is barred by the statute of limitations; that the surface water drain mentioned in plaintiffs' petition is a permanent structure, had been in its present location since 1938, long before plaintiffs' occupation of their premises, and for more than ten years before plaintiffs' occupation or ownership of the property and the filing of the petition and therefore defendant has a right, a prescriptive right, to maintain such drain and that plaintiffs' action for damages on that score is barred by the statute of limitations.

Plaintiffs' reply admitted the erection of barriers and fills in an attempt to prevent the inundation of their premises by water but denied that their efforts had stagnated the flow of such waters in such manner as to cause it to be collected on their premises in any greater degree than otherwise would have been and deny that they are barred by the statute of limitations. It is further alleged that the nuisance maintained by the defendant is abatable.

The case was tried to a jury which returned a verdict for plaintiffs in the sum of $3020, from which verdict the defendant appealed.

Appellant contends that the verdict of the jury was against the weight of the evidence in other words, that the verdict was not supported by substantial evidence.

It is the province of the jury to pass upon the credibility of witnesses and if the verdict is supported by substantial evidence, this court cannot disturb it, although such evidence is contradicted, and though we, had we been triers of the facts, might have arrived at a different conclusion. Steckdaub v. Sparks, Mo.Sup., 231 S.W.2d 160; Morris v. Freyer, Mo.App., 151 S.W.2d 515; Spriggs v. Calument Cab Co., Mo.App., 161 S.W.2d 741; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469; Nance v. Atchison, T. & S. F. Ry. Co., 360 Mo. 980, 232 S.W.2d 547.

In deciding whether there is substantial evidence to support the verdict of the jury, the reviewing court must take plaintiff's evidence as true, must give plaintiff the benefit of all favorable inferences arising therefrom, as well as from defendant's evidence, and must disregard all of defendant's evidence that is in conflict with plaintiff's or fails to strengthen plaintiff's case. Burkland v. Starry, Mo.Sup., 234 S.W. 2d 608; Sollenberger v. Kansas City Public Serv. Co., 356 Mo. 454, 202 S.W.2d 25; Persten v. Chesney, Mo.App., 212 S.W.2d 469; Smith v. St. Louis-San F. Ry. Co., Mo.App., 214 S.W.2d 443; Silvey v. Herndon, Mo.App., 234 S.W.2d 335.

In accordance with this rule, we will review plaintiffs' evidence. Briefly stated, it showed that they were the owners of lots 23 and 24 of Third Addition to Fairfield Acres, which was located on the west side of and about one block from the city limits. On the east of their property was a watershed which flowed generally in a southwesterly direction toward their lots; northeast of their premises was a sanitary sewer main running in a southwesterly direction to West Avenue, a street running north and south, one block east of their home, and then the route of the sanitary sewer turns south, (this elbow having a tendency to slow down the flow and build up the pressure) until it came to a pumping station maintained by the defendant, which lifted the sewage (24 feet) over an elevation partially caused by the Frisco Railroad tracks and partially by the natural contour of the land. After the sewage was raised at this pumping station, it drained by gravity south on West Avenue and eventually into the southwest disposal plant. At the turn in the sanitary sewage main, where it arrived at West Avenue and ran south, was a manhole and northeast of there along the course of the sanitary main was another, some 200 feet from the first. Defendant had constructed a storm sewer beginning some distance east of the sanitary sewer, proceeding west to that sewer and then south one block and thence one-half block west where it ended and permitted this surface water to pour out in an open ditch from which it later spread out upon the adjoining land. This storm sewer was of vitrified clay and was 36 inches in diameter part of its length and was buried in the ground. At Forest Street which was one-half block farther west from the end of the storm sewer, the outlet under the street for this water was 15 inches in diameter. It was at times insufficient to carry the water away from the storm sewer and backed up and covered the surrounding terrain. Plaintiffs built a...