Kellogg v. City of Kirksville
| Decision Date | 29 June 1908 |
| Citation | 112 S.W. 296,132 Mo. App. 519 |
| Parties | KELLOGG v. CITY OF KIRKSVILLE. |
| Court | Missouri Court of Appeals |
In an action for damages arising from the pollution of a stream, a count in the petition based the action on the wrongful deposit of filth and sewage on plaintiff's land, alleging that, by reason thereof, the rental value of plaintiff's land was reduced, his pasturage destroyed, and his family made sick, and their health injured, and the market value of the lands diminished. Held that, since all damages arising from a single wrong make but one cause of action, the count did not contain more than one cause of action in asking damages for the decrease in the value of the land, a decrease in its rental value, and the impairment of the health of plaintiff's family. Hence a motion to require plaintiff to elect on which cause he would rely was properly overruled.
2. MUNCIPAL CORPORATIONS—SEWAGE — POLLUTION OF STREAM—DAMAGES—PERMANENT INJURY TO PROPERTY.
Where a city collects its sewage, and discharges it in a volume into a stream, whereby a riparian property owner is injured, he may recover for a permanent injury to the property, and depreciation in the value of the land caused by the nuisance is a proper element of the damage.
3. TRIAL—INSTRUCTIONS—CONFORMITY TO ISSUE.
A petition in an action for damages for pollution of a stream counted on one wrong, the collection and precipitation of sewage and particularized the injurious consequences to plaintiff of that wrong. An instruction was given for plaintiff on the issue of damages arising from surface drainage. Held, that the instruction was erroneous, as outside the issues.
Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.
Action by Warren J. Kellogg against the city of Kirksville for damages for the pollution of a stream. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
H. F. Millan, for appellant. Will A. Rothwell, James E. Rieger, and Alexander Doneghy, for respondent.
Action against Kirksville, a city of the third class, to recover damages for maintaining a public sewer from which sewage was emptied into a creek which runs through the farm of plaintiff. The suit was begun September 12, 1905, and the amended petition on which the action was tried is in two counts: In the first the cause alleged is the maintenance of the nuisance from October, 1899, to August, 1902. In the second the cause is the continuation of the nuisance from November, 1902, to the time of the beginning of this suit. We quote as follows from the second count: "That through said lands there flows a natural stream of water in an easterly direction, which said stream furnished a plentiful supply of water for man and beast, which was before the injury hereinafter complained of pure and wholesome, and added greatly to the value of said land, and its comfortable use and enjoyment and occupancy, but that the defendant city had constructed and now permanently maintains a sewer which collected and carried the sewage and filthy matter of said city, and the inhabitants thereof who had been permitted by said city to connect privies and water-closets with said sewer, and emptied and discharged its said foul and filthy sewage and contents into said stream at a point on the west near plaintiff's said lands, and by that means so polluted the water of said stream as it came down on, and passed over plaintiff's said lands, that it was foul, offensive, unwholesome, and unfit for man or beast, and, in its turn, polluted the atmosphere so that the same was thereby rendered offensive and injurious to the health and comfort of the occupants of said lands, and that the defendant city suffered and permitted said sewer to so remain and continuously discharge its foul and filthy contents as aforesaid from the _____ day of November, 1902, until the present time; that, by reason thereof, the rental value of plaintiff's lands was greatly reduced in value, his pasturage destroyed, himself and family made sick, and their health injured, and the market value of said lands diminished, thereby damaging this plaintiff in the sum of $4,500." Defendant attacked this count by motion "that plaintiff be required to elect upon which cause of action stated in the second count of his petition he will proceed to trial, * * * because said count of said petition is founded upon or attempts to charge a cause of action for the diminution of the market value of plaintiff's land by reason of the matters alleged in said count, and also another and different cause of action for the decrease or diminution in the rental value of plaintiff's lands, and also another cause of action for sickness caused in plaintiff's family by reason of the matters complained of in said petition." The motion was overruled, and one of the errors assigned by defendant, the losing party in the trial court and the appellant here, is that the motion should have been sustained. The ruling of the trial court was proper. There is but one cause of action pleaded in the second count— i.e., the wrongful deposit of filth and sewage on plaintiff's land—from which resulted the different injuries alleged. The rule is well settled that all damages arising from a single wrong make but one cause of action. Bliss on Code Pleadings, § 118; Connoble v. Clark, 38 Mo. App., loc. cit. 482; Murphy v. Transit Co., 96 Mo. App. 277, 70 S. W. 159; Boyd v. Transit Co., 108 Mo. App. 303, 83 S. W. 287.
The evidence introduced by plaintiff tends to establish the existence of the following state of facts: Plaintiff is the owner of a farm of 70 acres lying east of the city of Kirksville, 8 acres of which are within the city limits. The farm is crossed by a natural waterway called "Steer creek," in which surface water flows except in times of drouth. In 1899 the city extended one of its sewers, and caused it to discharge sewage into the creek,...
To continue reading
Request your trial
-
Taylor v. Cleveland, C., C. & St. L. Ry. Co.
...no charge that the stopping of the train was unnecessary. It was therefore erroneous to submit that question to the jury. Kellogg v. Kirksville, 132 Mo.App. 519; Bank Stewart, 136 Mo.App. 24; Christian v. Insurance Co., 143 Mo. 469. Moreover, the instruction was erroneous in leaving the jur......
-
Smith v. City of Sedalia
... ... Madison v. Sulphur Co., 83 S.W. 658; Barnett v ... Cemetery, 159 Ill. 390; Truett v. Assn., 50 ... L.R.A. 564; Foncannon v. Kirksville, 88 Mo.App. 279; ... Edmondson v. Moberly, 98 Mo. 526; Safe Dep. Co ... v. Kennett, 101 Mo.App. 394; Gould on Waters, sec. 546; ... Bank v ... 198, 64 ... S.W. 149; City v. Allred, 17 Tex. Civ. App. 125, 43 ... S.W. 62; City v. Hardman, 29 Ky. L. Rptr. 253, 92 ... S.W. 930; Kellogg v. Kirksville, 132 Mo.App. 519, ... 112 S.W. 296. We cite, with approval, the following from the ... opinion of Johnson, J., of the Kansas City ... ...
-
Hayes v. St. Louis & San Francisco Railroad Company
... ... v. Railroad, 158 Mo. 87, 97, 57 S.W. 1090 ... In ... Powers v. The City of Council Bluffs, 45 Iowa 652, 656, ... 659, a case often approved by the courts of this state, ... McMunigal, 66 ... Mo.App. 437, 441; Foncannon v. City of Kirksville, ... 88 Mo.App. 279, 284.] In Carson v. City of ... Springfield, 53 Mo.App. 289, 295, the ... also seeking to have the dam causing such injury abated. In ... Kellogg v. Kirksville, 132 Mo.App. 519, 112 S.W ... 296, the court says that in a similar case (for ... ...
-
Hayes v. St. Louis & S. F. R. Co.
...for permanent injury to his land for overflow when he was also seeking to have the dam causing such injury abated. In Kellogg v. Kirksville, 132 Mo. App. 519, 112 S. W. 296, the court says that in a similar case (for discharge of sewage into a stream passing on plaintiff's land) that court ......