Gibson v. Donk

• Decision Date: 01 April 1879
• Parties: CHARLES GIBSON, Respondent, v. AUGUST F. DONK ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 37

CHARLES GIBSON, Respondent,

v.AUGUST F. DONK ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 1, 1879.

1. In an action for damages for a nuisance, it is error to instruct the jury to find for the plaintiff if the rental value of his property was materially injured by the thing complained of.

2. The fact that a business impairs the rental value of an adjoining residence does not necessarily make such business an actionable nuisance.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

F. N. JUDSON, for appellants.

CHARLES GIBSON, pro se.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages. The allegations of the petition are, that, plaintiff being the owner of a three-story dwelling in St. Louis, defendants established a coal-yard immediately to the south and west of plaintiff's house, and there carried on the business of screening and unloading coal, day and night, the coal-dust and noise from which operations constitute a nuisance and render plaintiff's house untenantable. The answer is a general denial.

The testimony tended to show that the ground immedidiately south of the house of plaintiff, which was one of a row, had at one time been much below the grade, and that stagnant water stood in it until, some months before the nuisance complained of, the ground was filled, and tracks were laid upon it connecting it with a railroad that lay at some little distance from the house, and with the Union Depot, which was not far off. These tracks were used for the delivery of coal. About four months before the commencement of the present action, defendants erected and ever since operated an elevated railroad within a hundred and fifty feet of the three-story building of plaintiff, and still nearer to a smaller building that stood on the rear of his lot. The manner of operation was, that coal-cars were run, and the cars unloaded into wagons over screens for separating the coal from the slack. This was constantly going on. Precautions were taken by the defendants in the way of watering the ground and other appliances, but in spite of this the coal-dust flew into plaintiff's houses. The testimony was conflicting as to the degree of annoyance thus caused, some witnesses saying that the coal-dust was not worse than the other dust of the neighborhood, and others describing it as rendering the houses entirely unfit for residence purposes. There was testimony that the rental value of the houses was diminished $10 a month in consequence of the coal-yards. There was a verdict and judgment for plaintiff for $30; and defendants appeal.

The cause was submitted on the following instructions, asked by plaintiff:--

“1. If the jury believe from the evidence that the establishment and operation of defendants' coal-yard...