Lewis v. City of Potosi, 29974

• Decision Date: 05 November 1958
• Docket Number: No. 29974,29974
• Parties: Aaron LEWIS (Plaintiff), Respondent, v. CITY OF POTOSI, a Municipal Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 623

317 S.W.2d 623

Aaron LEWIS (Plaintiff), Respondent, v. CITY OF POTOSI, a Municipal Corporation (Defendant), Appellant.

No. 29974.

St. Louis Court of Appeals, Missouri.

Nov. 5, 1958.

Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, Larry J. Casey, Potosi, for appellant.

Roberts & Roberts, J. Richard Roberts, Farmington, for respondent.

ANDERSON, Judge.

Plaintiff, Aaron Lewis, is a riparian owner of land on Mine Au Breton Creek near Potosi, in Washington County, Missouri and brought this suit against the City of Potosi. The petition in said suit was in three counts. In count one plaintiff sued for damage to his land and for loss of livestock caused by defendant city emptying sewage and effluent from its disposal plant into said creek, thereby polluting the water thereof, causing offensive odors and rendering the water unfit for use, with the result that he suffered damage by reason of the depreciation of his land in the sum of $7,500, and loss in the sum of $3,750 for the value of his livestock poisoned by drinking said water. Count two was based on defendant's alleged negligence in the operation of its sewage disposal plant, and sought recovery for damage to plaintiff's land and for the loss of his cattle in the same amounts as prayed in count one. Count three sounded in equity and sought an injunction. There was a verdict and judgment for plaintiff on count one in the sum of $2,000. Count two was dismissed by plaintiff at the close of plaintiff's case. The court found in favor of defendant on count three. Defendant has appealed from the adverse judgment on count one.

Plaintiff's farm consisted of 48 acres and was located about a mile and a half downstream from the city limits. Potosi is a municipal corporation of the fourth class. Said city at all times herein mentioned has maintained within the city limits on Mine Au Breton Creek a septic tank or sewage disposal plant which was put into operation in 1937. The dimensions of the tank were 96 X 20 feet, and 8 feet high, and until 1943 the contents were discharged into the creek 600 feet below the tank. In September, 1943, a pipe was run 2,500 feet from the outlet of the septic tank down to a pond or lagoon which had been built by defendant city. This pond or lagoon was about 150 feet long and about 100 feet wide at one end, and 30 or 40 feet wide at the other end, and was made by constructing a dike across the bend in an old creekbed. Thereafter, everything that came out of the septic tank flowed down the pipe into this lagoon. This included solids which would settle in the lagoon, where, through bacterial action, the noxious elements therein would be largely destroyed. The water from the lagoon would seep through the dike into an adjacent slough, and from there into Mine Au Breton Creek. The dike was built of dirt, gravel and rocks, and was porous enough for water to seep through. There was no overflow pipe in the lagoon. Occasionally there would be an overflow and when this would occur the dike would be built higher. The overflow would run into the creek. The dike was 4 feet high at the time it was constructed, and was thereafter built up to a height of about 10 feet. In the case of overflow, solids that would float would go over the top of the lagoon and into the creek. The water that seeped out from the lagoon and went into the creek was discolored.

Alex Cordia, who supervised the city water works, streets and sewers, testified there was some odor around the lagoon.

William J. LaChance, who worked on a farm adjacent to the Lewis place, testified that during the last three or four years the water in the creek at the Lewis farm had an odor and 'something in it that collects on the gravel and rock * * *. It is just something that will gather on the rocks like moss.' LaChance stated that there was not much difference between the color of the water just below the lagoon and the color at the Lewis farm. On cross-examination the witness testified that the condition described had existed from the time the septic tank was installed.

Plaintiff testified that he first detected an odor from the creek at his farm either the last week in 1950 or the first week in 1951; that prior to that time the color of the water was, 'I would say it looked like any other creek,' but since that time 'it is colored.' Plaintiff stated that the water has the color of beer, '* * * kind of amber. The lower the creek gets the more colored it gets.' Another place in his testimony plaintiff stated that since 1951 the condition of the water got worse, and testified 'it would come down there and would settle when the water was low and the bottom of the creek would get black.

'Q. What do you mean by black? Explain to the jury so they can understand what you mean. A. I mean the sewage was sticking to the bottom of the creek.

'Q. Did that ever happen prior to 1951? A. It was late '50 or early '51.

'Q. Before that did it happen? A. No.'

Edward S. Richeson, a witness for the defendant, testified that prior to 1942, after the installation of the septic tank, he had occasion to observe the condition of the water in Mine Au Breton Creek, both at the point where the discharge from the septic tank entered the creek and at the Lewis farm, and, in fact, stated he had observed the creek below the septic tank for a distance of a mile or mile and a half below the Lewis place. At those times the water was a darkish color and had a horrible odor. The rocks and stones were covered with a black substance, and also gave out an odor. Richeson testified: 'Q. During what years would you say that was? A. Mostly not later than the summer of '42, and as far back as, I would say, '37, '38, '39, in there, that period of years.'

In 1952 plaintiff had 25 head of cattle on his place. Ten head of these cattle were kept in a pasture where they had access to the creek and used the creek for drinking purposes. Five of these cattle got sick and died. In describing the illness from which the cattle died, plaintiff testified: 'Well, the first thing they went off feed. I don't mean they quit eating. I was feeding them some dry feed. In '52, the latter part of '52, was a dry year. I bought these calves for breeding purposes, for stock cows. That was why I was keeping them separated. So, I took these calves, I had them on barley pasture, separated from the other cattle. When the barley played out, which I say would be June, then I went to letting them in this little pasture, the creek bottom, and across the creek. * * *

Q. * * * I asked you what they looked like. Were they gaunt or what was the situation? A. That was the first thing they would do. * * * Before they died they went to chewing their teeth, gritting their teeth.

'Q. Did they pass any blood? A. Yes, sir, that was the last thing. When they went to passing blood they died.

'Q. Mr. Lewis, had you pastured that same place previous to that with cattle? A. Yes, every year. I always did.

'Q. Did anything happen to the cattle before that? A. No, sir. I wouldn't say I never lost any. That wouldn't be saying it right.

'Q. Did you ever lose any cattle like that? A. No, sir.'

Plaintiff stated that the reasonable value of these five head of cattle was $200 each.

Plaintiff further testified that the next year on one occasion a gate blew open and his cattle got into this pasture where they had access to this creek. Plaintiff got them out of this pasture immediately, but one of them subsequently died. The reasonable value of this calf was $150. Before this calf died it looked and acted the same as the five others that had died the year before.

In 1951 or 1952 plaintiff had 76 or 78 head of hogs that had access to the creek. These hogs got sick and 19 or 29 of them died. The ones that were lost were worth $45 a head. Plaintiff sold about 35 of the remaining hogs for about a third of their value. Again, in 1956, three of plaintiff's hogs that had access to the creek became sick, but they got well.

Plaintiff gave the following testimony with reference to the damage to his farm 'Q. Mr. Lewis, prior to this condition, which you say happened the latter part of '50 or '51 to the creek, before, in '50, when you say the creek was like a normal creek, normally clear, water like in a normal creek, what was the reasonable market value of your farm? A. Well, I would say $35,000.

'Q. After this happened, you found this condition, the creek had such an odor and your hogs died and you don't use the water, what is the reasonable value of your farm? A. That is pretty hard to determine. I would sell it for $20,000.'

In July, 1955, samples of water taken from the creek were analyzed by Dr. George Walters of St. Louis. The examination was made under the supervision of Dr. John Eibert, a chemical engineer. The purpose of the examination was to determine the bacterial count in the water and the presence therein of coliform organisms. One sample was taken near where the water flowed from the lagoon, and the other was taken from the creek at the Lewis farm. In the first sample there was a bacterial count of 150,000 per milliliter, and in the second sample a bacterial count of 15,000 per milliliter. Both samples were heavily contaminated with coliform fecal pollution. Dr. Eibert testified that fecal pollution could have adverse effect upon the digestive tracts of animals. On cross-examination the doctor testified he did not know what effect the drinking of water containing a bacterial count of 150,000 would have on an animal. However, on redirect examination Dr. Eibert testified that he would not recommend for animal consumption water containing coliform organisms and a bacterial count as high as that shown in the two samples which he had tested. There was evidence on behalf of defendant that the presence of coliform organisms in the drinking water of animals would not have an adverse effect on such animals.

Defendant's witness Dr. W. R. Sheets, a veterinarian, testified...