Fansler v. City of Sedalia

• Decision Date: 03 May 1915
• Docket Number: No. 11340.,11340.
• Citation: 189 Mo. App. 454,176 S.W. 1102
• Parties: FANSLER et al. v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

176 S.W. 1102

189 Mo. App. 454

FANSLER et al. v. CITY OF SEDALIA.

No. 11340.

Kansas City Court of Appeals, Missouri.

May 3, 1915.

Rehearing Denied May 31, 1915.

Appeal from Circuit Court, Pettis County;

H. B. Shain, Judge.

Action by Emma D. Fansler end another against the City of Sedalia. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

G. W. Barnett, of Sedalia, fox appellants. Hall, Robertson & O'Bannon, of Sedalia, for respondent.

TRIMBLE, J.

Appellants own a dairy farm adjoining the city of Sedalia. Brushy creek runs through said farm, and, heretofore, was a valuable feature thereof, furnishing a supply of pure wholesome water for farm purposes. The city constructed a sewer which emptied into Brushy creek at a point about 250 yards above the place where the stream enters said farm. Appellants brought suit against the city, alleging that their property has been greatly damaged by the sewage thrown into said creek, thereby converting it from a pure wholesome stream into such a foul and contaminated water course as to deprive appellants of the use thereof by rendering the farm unfit for habitation on account of the stench arising from such sewage.

Appellants bought their farm May 4, 1911, and it is conceded that the sewer emptied into the creek at that time, but appellants' testimony tends to show that on account of the limited amount of sewage at that time the water in the creek was not perceptibly contaminated and they did not know of the existence of the sewer. Late that fall they began to notice the contamination, as the water in the creek got low; and, since that, the sewage has been greatly increased from time to time up to the present, until now the water is wholly unfit for use and the smell is so bad that it extends to the house and contaminates the atmosphere. The sewer complained of was an original main sewer constructed in 1896. To it a number of lateral sewers have from time to time been connected, increasing the number of users thereof and consequently the sewage therein. One of these laterals, serving about 125 houses, has been added since appellants purchased their farm. There has also been a rapid growth of population in the district served by the main sewer, and a large number of houses have, within the last few years, been added to the lateral sewers served by it.

There is a sharp conflict between appellants' and respondent's evidence as to the present contamination of the stream, the latter's evidence tending to show that the stream of water is substantially in the same condition now as it was when appellants bought the land in 1911, and that even now the water is substantially pure and that fish were caught from it not long ago. However, we, are not concerned with the evidence, since it is clear that each side has abundant testimony to support its contention as to the facts and the respective theories upon which each insists the case should have been tried. This last-mentioned feature involves the sole question we are called upon to decide. Respondent's theory was embodied in its instruction No. 1 which the court gave. It was to the effect that, if the jury found that the sewer had been so far completed before appellants' purchase of the farm "as to show the substantial nature of the injury, if any, to the property in question so that the same could at that time have been ascertained, then the plaintiffs in this case have no cause of action for said injury, if any, and your finding must be for defendant; and in this connection the court instructs you if you find and believe from the evidence that the substantial and permanent nature of the injury, if any, was manifest prior to May 4, 1911, then the fact that an additional lateral system has been added to the main sewer, and the fact that there has been an increased use of said sewer, are not to be considered by the jury." Appellants' theory is contained in its instruction No. 4 which the court refused. It sought to tell the jury that:

"Although you may believe that the plaintiffs knew at the time that they bought the land, that said sewer was emptied into such land, yet this fact does not preclude a recovery on their part, and, notwithstanding the water was to some extent contaminated or polluted by said sewage at the time of said purchase, and the plaintiffs knew thereof, yet that will not defeat a recovery in this case unless the general character of the injury and of the acts exercised were substantially as offensive and to so great extent as at the time suit was brought; and, if you believe from the evidence at the time plaintiffs purchased the premises in question the damages could not then for all time be ascertained and estimated, then the fact that said water was to some extent impure at the time of the purchase will not defeat a recovery."

In other words, appellants' theory was and is that, even if they knew the sewer was there when they bought and that it polluted the stream to some extent, yet, if, at the time of purchase, they could not for all time estimate the damages, and if the extent of such damages thereafter increased and the stream became more foul and offensive on account of increased sewage, they could still recover. On the other hand, respondent's contention as embodied in its instruction was that if, at the time appellants bought, the substantial nature of the injury was manifest and could have been determined, then they had no case without regard to the fact that there was an increase in the amount of sewage and a consequential increase in the pollution and damage arising therefrom.

The city, by the act alleged, has collected its sewage and discharged it Into the stream at a point just outside the premises where it necessarily flows to and is deposited upon said farm. And this discharge is alleged to be of such increasing quantities as to Create and constitute a continuing nuisance. The city's defense is that, inasmuch as the sewer was built so as to empty into the stream prior to plaintiffs' purchase of the farm, the cause of action was in plaintiffs' predecessor in title. The existence of the sewer for more than ten years was set up in the answer, and it would seem that, in some degree, the defense rests upon a statutory prescriptive right to flow its sewage upon the farm. The defense, however, in the brief is placed wholly upon the theory that, if the sewer was constructed so as to empty into the stream before plaintiffs purchased, then the cause of action became complete in their predecessor without regard to whether the sewer, when plaintiff purchased, carried so little sewage that it could be largely absorbed by the stream and caused only slight pollution, and therefore inconsequential damage. This defense, if allowed to prevail, means or includes the theory that if, prior to plaintiffs' purchase, there was slight pollution which could have been discovered at that time, then the then owner must claim damages for the construction of the sewer; and, although he does not, and though the city acquired no right to flow sewage into the stream, yet his purchasers cannot have any cause of action notwithstanding the fact that, since plaintiffs' purchase, the city has so much increased the discharge of sewage as to greatly injure and damage the farm. It may be well to call attention to the fact that the injury complained of is not only the pollution of the waters of the stream but also of the...