Kellogg v. City of Kirksville

• Decision Date: 31 May 1910
• Citation: 149 Mo. App. 1,129 S.W. 57
• Parties: KELLOGG v. CITY OF KIRKSVILLE.
• Court: Missouri Court of Appeals

129 S.W. 57

149 Mo. App. 1

KELLOGG v. CITY OF KIRKSVILLE.

St. Louis Court of Appeals. Missouri.

May 31, 1910.

1. MUNICIPAL CORPORATIONS (§ 838) — POLLUTION OF WATER COURSE — PRESCRIPTIVE RIGHT.

On suit for damages caused by a city polluting a stream by discharging sewage, pleas that the cause of action did not accrue within five years before the petitions were filed are insufficient to establish a right in the city by user.

2. LIMITATION OF ACTIONS (§ 55) — POLLUTION OF WATER COURSE.

A suit brought in 1905 for damages resulting from the pollution of a stream by a city through the extension of a sewer in 1901 or 1902 is not barred by limitations.

3. JUDGMENT (§ 598) — MERGER AND BAR — DAMAGES — SPLITTING CAUSES.

Recovery by plaintiff, in a suit against a city for polluting a stream by discharging sewage, will be regarded as awarding permanent damages, where the complaint and the trial proceeded upon the theory that such damages were sought.

4. MUNICIPAL CORPORATIONS (§ 845) — POLLUTION — ACTION FOR DAMAGES — EVIDENCE.

On suit against a city for polluting a stream by discharging sewage, plaintiff could show that sediment collected in holes and pools along the course of the stream.

5. MUNICIPAL CORPORATIONS (§ 845) — POLLUTION OF WATER COURSE — RECOVERY NOT EXCESSIVE.

$3,150 is not an excessive recovery for permanent injuries to a landowner, caused by the pollution of a stream by a city through discharging sewage.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Warren J. Kellogg against the City of Kirksville. From a judgment for plaintiff, defendant appeals. Affirmed.

H. F. Millan and Bond, Marshall & Bond, for appellant. James E. Rieger and F. H. McCullough, for respondent.

REYNOLDS, P. J.

This is the second time that these parties have been before the appellate courts with this case, and the third time that this sewer, or part of it, has been under judicial consideration, as see the cases of Foncannon v. City of Kirksville, 88 Mo. App. 279, and Kellogg v. City of Kirksville, 132 Mo. App. 519, 112 S. W. 296. From a judgment in favor of this plaintiff, this defendant appealed to the Kansas City Court of Appeals; the trial having been had in the Randolph county circuit court. The Kansas City Court of Appeals reversed and remanded the case for an error in giving an instruction. The material facts in the case are set out by Judge Johnson, who delivered the opinion of the Kansas City Court of Appeals, reported in 132 Mo. App. 519, 112 S. W. 296, and those facts are substantially here again. After the cause was remanded, the venue was changed to Knox county, where at a trial before the court and jury a verdict was again rendered in favor of plaintiff for $3,150. It is from the judgment on this verdict that the present appeal is prosecuted.

The error for which the case was formerly reversed by the Kansas City Court of Appeals was the giving of an instruction to the effect that the plaintiff was entitled to show, as one of the elements of injury caused to his land by the construction of the sewer, that the sewer collected surface water and discharged it from the mouth of the sewer, thereby injuring the land of plaintiff. The Kansas City Court of Appeals held this element of damages not within the averments of the petition. At the trial now under consideration no such instruction was given, so that the case comes to us without that error. At the present trial the plaintiff abandoned the first count of his petition, which laid damages by reason of the construction of the sewer as having accrued and occurred between October, 1899, and August, 1902. The second count, on which the case went to the jury at this last trial, avers that the defendant "had constructed and now permanently maintains a sewer, which collected and carries 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 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 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 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 12th day of September, 1905; 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, for which said sum he prays judgment." The cause was commenced September 12, 1907; the amended petition on which it went to trial being filed December 8, 1908.

After various motions...