Joplin Consolidated Mining Company v. City of Joplin

• Decision Date: 09 July 1894
• Citation: 27 S.W. 406,124 Mo. 129
• Parties: Joplin Consolidated Mining Company v. City of Joplin et al., Appellants
• Court: Missouri Supreme Court

27 S.W. 406

124 Mo. 129

Joplin Consolidated Mining Company v. City of Joplin et al., Appellants

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from Newton Circuit Court. -- Hon. M. G. McGregor, Judge.

Reversed.

J. C Trigg, George Hubbert and J. W. McAntire for appellants.

(1) There can be no question as to the power of the city to establish a general sewer system. R. S. 1889, sec. 1544. The city exercised the power by ordinance. The city may condemn land for sewer route. R. S. 1889, secs. 1524 and 1544 ordinance number 119. (2) If the act or charter authorizing the appropriation of the property itself provides a specific remedy to the landowner by which the amount of his compensation shall be ascertained, that method, if it is complete or adequate, is usually regarded as exclusive. Dillon on Municipal Corp. [4 Ed.], sec. 613, and authorities there cited. "The city, so long as it pursues and keeps within its legislative grant of power, is not liable to a common law action, nor will it be enjoined." Dillon on Municipal Corporations [4 Ed.], sec. 613, and authorities therein cited; Jamison v. Springfield, 53 Mo. 224. (3) "If the proceedings are void and do not cast a cloud upon the owner's title, he must resort to ordinary legal remedies." If the municipal authorities have failed to follow the provisions of the charter, or have exceeded the jurisdiction which it confers, the remedy of the landowner for the review and correction of the proceedings is by certiorari, and not by a bill in equity. Dillon on Municipal Corporations [4 Ed.], sec. 611; Ewing v. St. Louis, 5 Wall. 413; Hunnewinkle v. Georgetown, 15 Wall 547; Marsh v. Brooklyn, 59 N.Y. 280; Hatch v. Buffalo, 38 N.Y. 276; Guest v. Brooklyn, 69 N.Y. 506; Anderson v. St. Louis, 47 Mo. 479. (4) If the condemnation proceedings were void as claimed by plaintiff on trial then the insurmountable barrier to equitable proceeding exists, to wit, the legal remedy of ejectment. Anderson v. St. Louis, 47 Mo. 484; Hammerslaugh v. St. Louis, 57 Mo. 219; Armstrong v. St. Louis, 69 Mo. 309; Gray v. Railroad, 81 Mo. 130; Wilcox v. Walker, 94 Mo. 92; Cory v. Railroad, 100 Mo. 293; Moses v. Dock Company, 84 Mo. 244. (5) If the proceedings were not void they can not maintain injunction, for the reason that they have the right by law to appeal. R. S. 1889, sec. 1524; Railroad v. Maddox, 92 Mo. 471. (6) The plaintiff could, if action of council was unlawful, have brought suit for trespass or sued for the land taken. Jamison v. Springfield, 53 Mo. 225. (7) If a nuisance is shown to exist, plaintiff could sue for damages. Edmonson v. Moberly, 98 Mo. 523. (8) Where the plaintiff has an adequate remedy at law it is the established doctrine in this state that injunction, will not lie. Burgess v. Kattelman, 41 Mo. 480; Hopkins v. Lowell, 47 Mo. 102; Steines v. Franklin Co., 48 Mo. 167; Damschroder v. Thias, 51 Mo. 100; Bailey v. Wade, 24 Mo.App. 186; Spitz v. Kerfoot, 42 Mo.App. 79. (9) The question of the practicability of constructing the sewer parallel with one of the exterior lines of the land is for the council to determine and it is not necessary that it declare that it has determined that question, as it is presumed by its acts that it did so. Dillon on Municipal Corporations [4 Ed.], sec. 601; Elliott on Roads and Streets, sec. 250-252; McCormack v. Patchin, 53 Mo. 33. (10) The court has nothing whatever to do with the discretion of the council or the unreasonableness of its action, if it has legislative authority for doing what it undertakes to do. St. Louis v. Green, 7 Mo.App. 168; Cooley on Constitutional Limitations, 164; 34 Mo.App. 521. In equity the supreme court is not bound by the finding upon the evidence in the lower tribunal. Morey v. Staley, 54 Mo. 419.

G. & A. Spencer and E. O. Brown for respondent.

(1) The presumption prevails that the findings of the trial court are supported by the evidence. Craig v. Scudder, 98 Mo. 664; Jayne v. Wine, 98 Mo. 404; Alleman v. Manning, 44 Mo.App. 4. (2) Injunctive relief will lie in this case. 1 High on Injunctions [2 Ed.], sec. 702; Butter v. Thomasville, 74 Ga. 570; 2 Dillon's Municipal Corporations, sec. 908; Heer Dry Goods Co. v. Railroad, 41 Mo.App. 63; Harber v. Evans, 101 Mo. 661; Railroad v. Railroad, 94 Mo. 535; Railroad v. Church, 108 U.S. 317. There was not a sufficient description of the lots sought to be appropriated in the Joplin Mining & Smelting Company's third addition to Joplin. Henry v. Mitchell, 32 Mo. 512; Evans v. Ashley, 8 Mo. 178.

Black, P. J. Brace and Macfarlane, JJ., concur. Barclay, J., dissents.

OPINION

Black, P. J.

The plaintiff corporation brought this suit to enjoin the city of Joplin, a city of the third class having a population of ten or twelve thousand inhabitants, from building a public sewer over certain lands owned by plaintiff. The circuit court made the temporary injunction perpetual, and the city appealed to the St. Louis court of appeals. That court transferred the cause to this court because of certain alleged constitutional questions raised by plaintiff in support of the decree of the circuit court.

There is no dispute as to the following general outline facts of the case: The plaintiff corporation is the owner of the southwest quarter of the northwest quarter of section 2, etc., and also other lands north of and adjoining said forty acre tract. These lands are all on the north side of the city, but within the corporate limits thereof. Joplin creek enters the forty acre tract first above described near the southeast corner thereof and runs thence in a northwest direction to a point near the northwest corner of said tract. There it passes over plaintiff's land and runs in a general northern direction for the distance of two or three hundred feet and then turns to the east and passes northward over and across the lands of the plaintiff which adjoin and lie to the north of the forty acres first before mentioned.

On the third of September, 1890, the city council passed an ordinance numbered 302 establishing a general sewer system according to what is called the Rosewater survey, a survey made by a sanitary engineer as the result of much care and study on his part. The outlet section specified in the survey and ordinance begins at a point near the north line of the forty acres and runs north along the valley of Joplin creek to Turkey creek. It seems the city was unable to build the entire system at one time, so that this Turkey creek section was abandoned for the time being. On the twelth of November, 1890, the council pased another ordinance numbered 342, providing "that a public sewer be established as heretofore provided by ordinance" across the forty acres, describing the course and boundaries of a strip of land ten feet in width, and declaring that the land so described "is hereby taken and condemned for public use as a part of the said public sewer route and just compensation therefor shall be assessed, collected and paid according to law." The strip of land thus described begins on and near the middle of the south line of the forty acres and runs thence in a northerly direction to a point near the northwest corner of that tract, where it ends in Joplin creek at a point on the west line of plaintiff's forty acres. The sewer is to be twenty inches in diameter and will be so constructed as to discharge its contents into Joplin creek at the point where it ends in that creek.

It is alleged in the amended petition that the city, without right or authority, entered upon the forty acres and began the construction of the sewer; that it proposes to build the same over the land without first paying the plaintiff the damages which it will sustain. The answer justifies under proceedings had to condemn the property. The evidence on these issues shows that proceedings to condemn the strip of land were had and the damages assessed at $ 500; that the plaintiff in this suit was served with notice in those proceedings; that the plaintiff appealed from the award to the circuit court; that the award was confirmed by the city council and the $ 500 paid to the clerk of the circuit court for the plaintiff here, the defendant there. Thus matters stood when this suit was instituted. A change of venue was awarded in those proceedings, and they were still pending when this suit was tried.

From the pleadings and evidence it appears that Joplin creek is fifteen or eighteen feet wide at the point where the sewer will discharge its contents. The banks at and below that point are low, the water shallow, and the course of the stream illy defined. The water has been used for washing lead and zinc ores. On rare occasions the creek becomes dry, but in general there is a considerable body of water flowing down through plaintiff's land. The plaintiff produced much evidence tending to show that the sewer will pollute the water and render it useless, and that plaintiff's land on either side of the creek will be damaged by reason of deposits thereon of sewer matter. On the other hand the defendant produced evidence tending to show that the water in the creek is now unfit for any domestic use, and that there is an abundance of water flowing down the same to carry off all the matter which will be discharged into it. In the view we take of this case it is not necessary to enter into the details of the evidence of the character just mentioned.

1. The proprietor of land through which a stream flows can not insist that the water shall come to him in the natural pure state. He must submit, and that, too, without compensation to the reasonable use of it by the upper proprietors; and he must submit to the natural wash and drainage coming from towns and cities. But a city has no right to gather its sewage together...