Coombs v. Fuller

• Decision Date: 07 March 1921
• Docket Number: No. 13907.,13907.
• Parties: COOMBS et al. v. FULLER et al.
• Court: Missouri Court of Appeals

228 S.W. 870

COOMBS et al. v. FULLER et al.

No. 13907.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Error to Circuit Court, Jackson County.

"Not to be officially published."

Suit by Emma R. Coombs and others to enjoin George W. Fuller and others, as the Board of Park Commissioners of Kansas City, Mo., and the City of Kansas City, Mo. Decree for plaintiffs, and defendants bring error. Reversed and remanded.

See, also, 223 S. W. 741.

E. M. Barber and Benj. M. Powers, both of Kansas City, for plaintiffs in error.

BLAND, J.

This is a suit brought to enjoin the board of park commissioners of Kansas City and Kansas City, a municipal corporation, from maintaining a horse barn in the vicinity of plaintiffs' property on the ground that the maintenance of the same constituted a nuisance. The trial resulted in a decree being entered perpetually enjoining defendants from keeping any horses on the property where the barn was situated, and defendants have appealed. Plaintiffs have not favored us with a brief.

The petition is lengthy. It pleads facts which, if true, show that the maintenance of the barn constituted a public nuisance, nuisance at all. However, it fails to plead facts showing that plaintiffs suffered or would suffer any special injury other than that which the general public would share alike. From the allegations of the petition it would appear that an effort was being made to abate a purely public nuisance that affected members of the public as a whole, and that plaintiffs' injury was the same as that; suffered by the entire public. It is well, established that it is essential to the right of a person to obtain relief against a public nuisance that he should show that he has suffered or will suffer some special injury other than that shared alike by the general public, and that the difference between the injury to him and to the general public must be one of kind and not merely of degree. It is likewise held that the petition must allege facts showing that plaintiff has suffered or will suffer some damage peculiar to himself. Realty & Investment Co. v. Deere & Co., 208 Mo. 66, 106 S. W. 496, 14 L. R. A. (N. S.) 822; Fairchild v. St. Louis, 97 Mo. 85, 11 S. W. 60; Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257; Van de Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695, 28 Am. St. Rep. 396; Gates v. Kansas City Bridge & Terminal Ry. Co., 111 Mo. 28, 19 S. W. 957; Baker v. McDaniel, 178 Mo. 447, 77 S. W. 531; Gorman v. City of St. Louis, 255...