Edmondson v. City of Moberly

• Decision Date: 28 June 1889
• Citation: 11 S.W. 990,98 Mo. 523
• Parties: EDMONDSON <I>et ux.</I> v. CITY OF MOBERLY.
• Court: Missouri Supreme Court

11 S.W. 990

98 Mo. 523

EDMONDSON et ux. v. CITY OF MOBERLY.

Supreme Court of Missouri.

June 28, 1889.

MUNICIPAL CORPORATIONS — NUISANCE.

1. A municipal corporation, authorized by its charter to build and maintain a sewage system, cannot, under an ordinance to that effect, not expressly indicating and sanctioning the particular arrangement of the drains, so arrange the drains as to create an unnecessary nuisance, injurious to private rights of property.

2. In an action for an injury to real property of which plaintiffs (husband and wife) are seised in entirety, both have such an interest therein as to be competent witnesses.

3. Sess. Acts Mo. 1885, p. 47, providing for the appraisement of damages to private property for public use, has no application to an injury in the nature of a tort, committed by a municipal corporation.

4. Evidence that sewage discharged into a small stream near plaintiffs' residence, within the city limits, was so filthy as to pollute the stream, produce sickening stenches, and sickness in their family, impair the enjoyment of their home, and diminish its value, and that it was caused by the acts of defendant, was sufficient to show that a nuisance specially injurious to plaintiffs had been created, and justified the submission of the case to the jury.

Appeal from circuit court, Randolph county; G. H. BURCKHARTT, Judge.

The city of Moberly was authorized by its charter to build and maintain a system of sewers for the drainage of its streets, etc., and for the maintenance of the public health. In 1885, under an ordinance to that effect, it constructed a number of sewers for the drainage of the city. These drains, when completed, discharged the sewage finally into a small running stream or branch, near plaintiffs' residence, within the city limits. Plaintiffs' evidence tended to show that this discharge was so filthy and noxious that it polluted the stream, produced a sickening stench upon plaintiffs' premises, impaired their enjoyment of their home, diminished its value, and caused sickness in their family. The plaintiffs are husband and wife. Their deed to the property (read in evidence) names as grantees "G. W. Edmondson and Mildred Edmondson, his wife." The court refused to allow the plaintiff husband to testify, presumably because of such relationship. At the close of the evidence the court declared the law to be that plaintiffs could not recover. On this they took a nonsuit with leave, and ultimately appealed, after the usual preliminaries.

A. P....