Lewis v. City of Springfield

• Decision Date: 07 February 1910
• Citation: 142 Mo. App. 84,125 S.W. 824
• Parties: LEWIS et al. v. CITY OF SPRINGFIELD.
• Court: Missouri Court of Appeals

125 S.W. 824

142 Mo. App. 84

LEWIS et al. v. CITY OF SPRINGFIELD.

Springfield Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 28, 1910.

1. MUNICIPAL CORPORATIONS (§ 845) — SURFACE WATER — ACTIONS FOR DAMAGES — COMPLAINT — SUFFICIENCY.

A complaint, alleging that defendant city so negligently graded certain streets that the water from other streets was conveyed into L. street, near plaintiff's property, and that defendant negligently failed to construct sufficient gutters to carry the water off said L. street, so that the same flowed on plaintiff's property, was sufficient, though it did not specifically allege that in the grading of the streets named defendant changed the flow of surface water by diverting it from its natural course, or that defendant gathered the water from its natural course and brought it down to plaintiffs' property in greater volume than it had come prior to the grading.

2. MUNICIPAL CORPORATIONS (§ 835) — SURFACE WATER — INJURIES TO PROPERTY.

While a city is not liable for the incidental change of the flow of surface water, it may not collect such water into drains or sewers, and discharge it in unusual quantities onto private property.

3. EMINENT DOMAIN (§ 98) — CHANGE OF GRADE IN STREET — SURFACE WATER — INJURIES TO PROPERTY.

Since damages to private property resulting from the change in a grade of a street must be paid by a municipality, this being held to be the taking or damaging of private property for public use within the meaning of the Constitution of 1875, a city collecting surface water from streets onto another street is liable for damages to private property resulting from an overflow of the surface water because of insufficient drains in the latter street.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by Lydia N. Lewis and another against the City of Springfield. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. H. Mason and O. E. Gorman, for appellant. Hamlin & Seawell, for respondents.

NIXON, P. J.

This was an action for damages commenced before a justice of the peace and arising out of the alleged failure on the part of the city of Springfield to properly grade its streets, whereby a large quantity of surface water was so collected as to cause it to be thrown upon respondents' lot by reason of the insufficiency of the gutter provided. From a judgment for $250, the city appealed to the circuit court, where, upon a trial by jury, respondents obtained a verdict for $50. The case is here on the appeal of the city. The facts will appear in the opinion.

1. It is contended by appellant that its motion in arrest of judgment should have been sustained for the reason that neither count in the petition states a cause of action and will not support a verdict.

The first count in the petition, after alleging that respondents are husband and wife and the owners of lot 4 in Hendricks & Jones' addition to the city of Springfield, and that the city of Springfield was a municipal corporation of the third class, and that it has control over its streets and alleys with the duty to construct and control its streets and alleys in such a way that their use would not interfere with the property and enjoyment of property owners and citizens living along said streets and alleys, and that Lynn street is a street and thoroughfare within the said city adjacent to the aforesaid property of the respondents, alleges: "That on the ______ day of ______, the defendant so negligently constructed a gutter on the south side of Lynn street and so negligently and carelessly permitted the same to become filled with dirt and trash that the water overflowed therefrom on the ______ day of ______, and upon divers other days and dates thereafter, into an alley adjoining plaintiffs' property, at each overflow rendering same unhealthful, and upon each overflow the soil in the yard was washed, thereby injuring the yard, and the appearance of the yard upon each overflow would be bad, and said premises were rendered unhealthful. That the said cellar and basement were injured and rendered unfit for use. That offensive odors in the premises were created by each of said overflows; the rooms of said house being rendered damp and unhealthful and leaving therein a musty smell or odor. That on the ______ day of ______, by reason of an overflow caused as aforesaid, the premises of plaintiffs were rendered unhealthful, causing sickness in his family and an expenditure of $____ for medicines, medical attention and nursing, and that on divers occasions thereafter, on account of the many and frequent overflows, caused as aforesaid, the family of plaintiffs were rendered sick and unhealthful. That each of said overflows could be prevented and stopped, the said nuisance as aforesaid being temporary in character, and this action is brought to recover damages on account of said temporary nuisance and for damages as aforesaid, on account of the overflows from the time of the purchase of said property by plaintiffs to the present time, and plaintiffs say that by reason of said overflows, as aforesaid, and the negligence of the defendant, as aforesaid, they are damaged in the sum of $250, for which they ask judgment."

Plaintiffs allege in their second count: That they are the owners of lot 4 on Lynn street in Hendricks & Jones' addition to the city of Springfield, and have a dwelling house thereon in which they reside. "That the following named streets run east and west in said city, to wit: Pacific,...