Haynor v. Excelsior Springs Light, Power, Heat & W. Co.

Citation129 Mo. App. 691,108 S.W. 580
CourtCourt of Appeal of Missouri (US)
Decision Date02 March 1908
PartiesHAYNOR v. EXCELSIOR SPRINGS LIGHT, POWER, HEAT & WATER CO.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Olivia L. Haynor against the Excelsior Springs Light, Power, Heat & Water Company for damages for the pollution of a well. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Craven & Moore, for appellant. Richard I. Bruce, for respondent.

JOHNSON, J.

Action to recover damages alleged to have been caused by the tort of defendant in polluting the water in a well.

Plaintiff had judgment in the sum of $100, and defendant appealed. Plaintiff and defendant were adjoining proprietors in the city of Excelsior Springs. Plaintiff's residence was on her lot, and defendant operated a gas manufacturing establishment on its property. It is alleged in the petition "that on said premises so owned by plaintiff was dug a well which had been in existence and use for many years prior to the erection of the plant of defendant, * * * which said well contained excellent living water, never failing in capacity for all plaintiff's needs, mineral in its nature, and very wholesome, and which said well had been and was the sole dependence of plaintiff for her needs in that respect and for her family for many years"; that "defendant used coal or other substance which produced an oil or grease of dark, noisome, and odorous nature; that said oil or grease was conveyed from said plant to the rear and toward the north from said plant and permitted by defendant to escape into and mingle with the waters and in the bed of the Dry Fork of Fishing river, a natural water course with well-defined channel and banks, which said water course skirts the northern boundaries of the premises of both the plaintiff and defendant; that, by reason of such mingling of said substance, oil, or grease with the said waters and in the bed of said stream for a long space of time, the said substance, oil, or grease became mingled with the water in the aforesaid well situated on plaintiff's premises aforesaid; that defendant, wholly disregarding the rights of plaintiff, did so negligently and willfully permit said substance, oil, or grease to flow into and mingle with the waters of said stream and in the bed thereof, and thereby to enter into and mingle with the water of plaintiff's well, that the water of said well became greasy, oily, odorous, and noisome, and utterly unfit for use by plaintiff, so that plaintiff was compelled by reason of the negligence and willful acts of defendant aforesaid, to abandon said well and to cease to use the water of the same," etc. The answer contains a general denial and a special denial that "the well mentioned in plaintiff's petition is located on the premises therein described or owned by plaintiff."

It appears from the evidence of plaintiff that the well in controversy was situated on her lot about 100 feet from the bank of the stream, and for many years had supplied plaintiff and her family with wholesome water sufficient for their needs, and that defendant manufactured gas on the adjoining premises, and in 1905 made some changes in the operation of its plant by which it turned into the stream large quantities of rank, oily refuse which was carried downstream past plaintiff's property,...

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