King v. City of Rolla

• Decision Date: 13 June 1939
• Docket Number: No. 5695.,5695.
• Parties: J.A. KING, RESPONDENT, v. THE CITY OF ROLLA, MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

130 S.W.2d 697

J.A. KING, RESPONDENT, v. THE CITY OF ROLLA, MISSOURI, APPELLANT.

No. 5695.

In the Springfield Court of Appeals. Missouri.

June 13, 1939.

Appeal from the Circuit Court of Phelps County. — Hon. W.E. Barton, Judge.

REVERSED.

Llyn Bradford, W.D. Jones and Phil M. Donnelly for appellant.

Harry Clymer and E.W. Allison for respondent.

ALLEN, P.J.

This case was filed in the Circuit Court of Phelps County, on March 17, 1934, and was tried, at the September Term of said court, on plaintiff's second amended petition and defendant's amended answer thereto.

Plaintiff's second amended petition alleged that he was the owner of a farm of 275 acres, which adjoins the corporate limits of defendant, City of Rolla. The petition further alleged that in May, 1929 the defendant completed the construction of a septic tank on a tract of land owned by defendant and adjacent to plaintiff's premises, and that since that time raw sewage from all parts of the city has been dumped into this tank and continuously discharged from it into Love Creek, which creek flows through plaintiff's farm. It is alleged that the sewage in this tank and which is discharged from it into Love Creek, gives off offensive and unbearable odors and that since the construction of this septic tank and its discharge into the creek, the water therein has become wholly unfit for stock or any other farm use, whereas prior to that time it was pure and clean. The petition asked damages in the sum of $10,000.

The amended answer of defendant contained, besides a general denial, first, a plea that the septic tank referred to in the petition was completed in 1928 and had been operated continuously thereafter and for a period of more than five years before the filing of this suit, and that plaintiff's cause of action, if any, is barred by operation of the five year Statute of Limitations; second, that for more than ten years prior to the construction of the septic tank referred to in plaintiff's petition, the defendant, City of Rolla, had continuously discharged its sewage into Love Creek, through plaintiff's land, and that any cause of action plaintiff might have had was barred by the ten-year Statute of Limitations; and third, that at the time plaintiff purchased this farm and for several years prior thereto, the City of Rolla had used this creek for the discharge of the city sewage and that plaintiff purchased the farm with full knowledge and notice of such condition and was therefore estopped from maintaining any action for damages by reason thereof.

Plaintiff's evidence was to the effect that he purchased the farm in question in 1919; that it is located just south of the City of Rolla, contains 275 acres with about 200 acres in cultivation and has two dwelling houses on it and is suitable for stock raising and general farming purposes. That the creek referred to — Love Creek — flows in a southeasterly direction through the farm for a distance of about three-fourths of a mile and has running water in it the year around. Plaintiff's evidence further showed that the present city septic tank, known as the Imhoff Tank, was completed and the city sewage emptied into it in the year of 1929; that prior to that time there was an old tank located about one-half mile north of where the Imhoff Tank was located, on Love Creek, and that the sewage from the City of Rolla was discharged into the old tank and thence into Love Creek; that prior to the construction and operation of the Imhoff Tank Love Creek had fresh, pure and wholesome water in it which was suitable for stock purposes; that boys swam and fished in the creek where it flows through plaintiff's farm and no offensive odor arose from the creek, but since the construction and operation of the present Imhoff Tank the discharge from the tank into the creek is a dark color, contains solid matters as well as liquids, which give off foul and offensive odors and that the creek all through plaintiff's land is polluted; that it has a dark scum on it and offensive odors arising from the creek are noticeable all over the farm; that stock will not drink from the water and when driven across it offensive substances collect on their bodies and the gravel in the bed of the creek and along the banks is contaminated to a depth of two or three feet.

Plaintiff's evidence further disclosed that none of the structures nor the pipe were located on the farms in question, but were located on land adjacent to the farm.

Plaintiff's evidence showed, and it was undisputed, that the entire sewage from the City of Rolla is emptied into the Imhoff Tank and that at the time this tank was constructed there were between four and five miles of additional lines added to the City's sewer system and since the tank was installed several new sewer districts have been established and the population of the City of Rolla has increased from 2250 in 1920 to 3670 in 1930 and has been increasing since 1930. Plaintiff also introduced evidence as to the value of the farm, showing that before the Imhoff Tank was constructed and put in operation the reasonable market value of his farm was $22,000 and that immediately thereafter it was worth only $2,000 or $3,000. Several witnesses testified as to the market value of the farm before and after the Imhoff Tank was put in operation and their opinions relative to values varied considerably. Some thought the farm was worth from $12,000 to $15,000 immediately before the Imhoff Tank was put in operation and that immediately thereafter its value was reduced to at least half.

At the close of the plaintiff's evidence defendant submitted a peremptory instruction in the nature of a demurrer to the evidence, which was overruled. Defendant then offered testimony to support the defenses pleaded in the answer. In order to show that the present septic tank was completed and began to operate in 1928, as set forth in defendant's answer, defendant introduced in evidence that part of plaintiff's original petition, wherein plaintiff alleges that this septic tank was constructed in 1928 and at all times thereafter had been maintained by defendant city.

Defendant's evidence showed that before the Imhoff Tank was constructed the city had an old septic tank which was located about 3200 feet north of the present tank. The old tank was constructed in the winter of 1907 and spring of 1908 as the result of a bond election of the City of Rolla, and was situated about thirty yards north of the bank of Love Creek. This tank was simply a square, concrete box, about eighteen feet deep and had two partitions in it. From the time the old tank was put in operation in 1908, until the spring of 1928, when the new tank was completed, all raw sewage from the City of Rolla was enptied into the old tank and discharged into Love Creek and flowed through the land now owned by plaintiff. Defendant's evidence further shows that during all this time the water in Love Creek, as it flowed through the plaintiff's farm and for a mile or more below, was black and very dirty and there was a bad odor from it. The water was not suitable for stock purposes and this condition existed at the time plaintiff bought the farm in question, in 1919.

Defendant's evidence further showed that the contract for the construction of the Imhoff Tank and sewer system was let in September, 1927 after an election had been held for the issuance of bonds under Ordinances 316 and 317. The work was begun about thirty days thereafter and the entire project completed and approved in May, 1928. It was put in operation almost immediately thereafter and began to discharge sewage into Love Creek and has been operated continuously since that time. When the new system was completed in the spring of 1928 the mayor appointed a commttee from the Board of Aldermen to inspect the tank to see if it was operating according to specifications. It was shown by the testimony of the sanitary engineers that the Imhoff Tank in question removes about ninety per cent of the settleable solids from the sewage by a process of sedimentation and that this material goes in the sludge beds and does not get into Love Creek; and that in 1928 the Imhoff Tank was an approved form of sewage disposal. Defendant's witnesses testified that the condition of Love Creek, through plaintiff's land, since the completion of the new system is no worse than before and that consequently the market value of plaintiff's premises has not been reduced.

Plaintiff introduced two witnesses in rebuttal to controvert the defendant's evidence as to the condition of Love Creek, where it flows through plaintiff's farm, while the old tank was in operation. These witnesses testified that prior to the construction and operation of the Imhoff Tank the water in Love Creek was clean and suitable for stock purposes and that boys swam in it in the spring of the year, but that they had seen sewage in the creek while the old tank was in operation. Two of plaintiff's witnesses in chief testified to the effect that there was some contamination of Love Creek while the old tank was in operation and before the Imhoff Tank was put in operation, but that the condition was much worse after the Imhoff Tank was put in operation. It was undisputed that the old tank was constructed...