Horine v. Peoples Sewer Company

• Decision Date: 25 June 1918
• Citation: 204 S.W. 735,200 Mo.App. 233
• Parties: R. W. HORINE and BEN HORINE, Appellants, v. PEOPLES SEWER COMPANY and CITY SEWER COMPANY, Respondents
• Court: Missouri Court of Appeals

204 S.W. 735

200 Mo.App. 233

R. W. HORINE and BEN HORINE, Appellants, v. PEOPLES SEWER COMPANY and CITY SEWER COMPANY, Respondents

Court of Appeals of Missouri, Springfield

June 25, 1918

Appeal from Lawrence County Circuit Court.--Hon. C. L. Henson Judge.

AFFIRMED.

Judgment affirmed.

George Pepperdine and H. H. Bloss for appellants.

John L & Carr McNatt for respondents.

BRADLEY J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

Plaintiffs filed their bill in equity to enjoin defendants from discharging sewage upon the land of plaintiffs, and so near the same as to affect the value thereof, and to render said land unfit for use by reason of foul and offensive odors. The answer is a general denial, a plea of the statute of limitations, and a plea in the nature of estoppel. The trial court denied the relief prayed for, and plaintiffs appealed.

In 1891 the defendant, City Sewer Company, was established by ordinance of the city of Aurora; and the defendant, Peoples Sewer Company, was likewise established in 1896. The Peoples Sewer Company at the time of its establishment laid its sewer pipe across the land now owned by plaintiffs, and placed its discharge where it now is, without any express consent of the then owner, and without condemnation proceedings. The City Sewer Company at the time it was established laid its sewer not on the land of plaintiffs, but the discharge is above and near said lands. Chat river, a small stream or creek, flows through the city of Aurora, and through plaintiffs' land, and into this river both sewers discharge. The sewage passes through plaintiffs' land, but no proceedings were had by either defendant to condemn this stream through plaintiffs' land as an outlet for said sewers. The land alleged to be damaged consists of twelve acres, triangular in shape, and situate between the Frisco and Missouri Pacific railroad tracks, and is within the corporate limits of the city, but is not platted. Independent of the sewer discharge the land is not suitable for residence, but is used for agricultural purposes. Above plaintiffs' land are a number of mines the discharge from which is into Chat river, and this discharge, the trial court found contributed to the contamination of the stream, and consequently to the injuries complained of. It was also found by the trial court that before the construction of the sewers the waters of Chat river were unfit for use. The sewer discharge from the Peoples Sewer Company by backing up and failing to flow away during dry times when the river is low or dry has spread over a considerable area, two or three acres, and rendered, so it is claimed, these two or three acres, wholly worthless, and it is claimed that the stench is so offensive that it is quite difficult to cultivate any portion of the twelve acres.

The learned chancellor below based his finding and decree denying the injunction on the ground that plaintiffs' damage was so out of proportion to the injury and calamity that would likely befall the city if the discharge was abated that equitable relief should not be granted, and also on the ground that the plaintiffs had depressed the consideration because of the sewer discharge when they purchased in 1916.

It has been suggested that we have no jurisdiction, and that this cause be transferred to the Supreme Court. This suggestion is based on the idea that the title to the land is involved by reason of the defendants' plea of title by prescription. Defendant, City Sewer Company, claims to have acquired by prescription the title, and therefore, the right to maintain its sewer and discharge on plaintiffs' land, and likewise the Peoples Sewer Company claims the right to have its discharge near plaintiffs' land; and both defendants claim by prescription the right to use Chat river through plaintiffs' land as an outlet to carry away the sewage discharged therein. City of Moberly v. Lotter, 266 Mo. 457, 181 S.W. 991, is clearly in point as to the title being involved if it be conceded that plaintiff is entitled to an injunction unless barred by the statute. That case was in condemnation to condemn certain lands of defendant for sewer purposes, and on the question of the title being involved the court said, l. c. 464: "A cursory view may lead to the conclusion that in this class of cases only the easement and not the fee is affected; but while the fee remains in the owners, their right to the use and exclusive possession of the lands is either lessened or taken away, and as a consequence the title is affected to the extent of the injury inflicted. A condemnation of lands for a public sewer may not, after the work is completed, affect the owner's interest therein to the...