Lucas v. City of Louisiana
| Decision Date | 06 July 1943 |
| Docket Number | No. 26403.,26403. |
| Parties | LUCAS et al. v. CITY OF LOUISIANA. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Theodore Bruere, Judge.
"Not to be reported in State Reports."
Action by Martha Lucas and another against the City of Louisiana for damages to plaintiffs' realty by overflow from a natural watercourse as the result of a wall constructed by defendant falling into and obstructing such watercourse. Judgment for defendant, and plaintiffs appeal.
Reversed and remanded.
May & May, of Louisiana, for appellants.
Edward A. Glenn, of Louisiana, for respondent.
This suit was brought by appellants, hereinafter called plaintiffs, to recover from respondent city, hereafter referred to as defendant, damages alleged to have resulted to certain real estate owned by plaintiffs adjoining a natural watercourse referred to as the "Town Branch," also as the "City Branch," and as "the branch," which flows through plaintiffs' land within said city. The cause was tried before the court and a jury and at the conclusion of all the evidence the court gave, at defendant's request, an instruction in the nature of a demurrer to the evidence directing a verdict in favor of defendant. Plaintiffs then took an involuntary nonsuit with leave to move to set the same aside. In due time plaintiffs filed a motion to set aside said nonsuit, which the court overruled and thereupon rendered judgment in favor of defendant. Plaintiffs appealed.
Plaintiffs' first amended petition, upon which the case was tried, alleged, in substance, that they were owners of "Part of Lots Numbered 638 and 639 in Block Numbered 78 of the original town, now City of Louisiana, Mo.," located along the south side of the City Branch, a natural watercourse which flows from the northwestern part of the City of Louisiana, in a southeasterly direction through said city and empties in Noix Creek in the south part thereof; that the defendant is and was a municipal corporation operating under a special charter passed by the Legislature of Missouri in 1870 with amendments thereto subsequently adopted; that said city, through its City Council, had charge and control of its streets and alleys, and of the City Branch; that during 1933 and 1934 there was erected, under the direction and by authority of defendant city, a stone wall on each side of said City Branch approximately throughout its entire length through said city; that defendant negligently erected said wall, or allowed same to be erected under its direction, without cementing the stones thereof together and without putting a cement top thereon; that in the exercise of ordinary care defendant could and should have known that said wall was being improperly constructed and was liable to give way and fall into said City Branch and would thereby obstruct same and cause damage to plaintiffs' property; that in April or May, 1941, a portion of said improperly constructed wall adjoining plaintiffs' property gave way and fell into said City Branch and obstructed the flow of the water therein and caused the water to overflow and damage plaintiffs' property; that immediately thereafter plaintiffs notified defendant thereof, but defendant negligently and carelessly failed to repair said wall or remove said obstruction, and, on or about July 10, 1941, there was a rain which caused a great quantity of water to run in said City Branch north of plaintiffs' property, and said water was blocked and diverted from its free passage by said debris, obstructing said City Branch, which was caused to and did back up and wash out plaintiffs' wooden foot bridge which extended from their property across said branch to the opposite side thereof, and which was of the reasonable value of $300; that said City Branch did thereby cut into the property of plaintiffs and caused said bridge to fall into said branch by reason of which plaintiffs were compelled to walk down into said branch and climb a ladder to get into their property; that plaintiffs' means of ingress and egress were greatly impaired and they were compelled to undergo hardships in order to use their property; that all said damage to their property was directly and proximately caused by defendant's negligence aforesaid; and that their property was thereby depreciated in the reasonable market value of $750, for which sum they prayed judgment.
Defendant's answer was a general denial.
Plaintiffs contend that the trial court's ruling was based on the view that since no ordinance authorized the construction of the wall which fell into the City Branch, defendant could not be held liable in damages for such obstruction and that such ruling was erroneous. However, plaintiffs do not press that point in this court. They say their principal contention is that defendant negligently allowed the City Branch, a natural watercourse adopted by the city as a drain or sewer, to remain obstructed, after due and timely notice, for a period of about two months, as a result of which plaintiffs were damaged.
Defendant city contends that the record clearly shows that it did not, by ordinance, authorize the construction of the wall complained of; that under its charter such work could only be authorized by an ordinance duly passed; that it could not, therefore, be held liable for any negligence in such construction. Defendant also contends that there is no evidence sufficient to make a case for the jury upon the theory that it had adopted or acquired the watercourse as a public drain or sewer because no ordinance was ever passed or adopted by the city to that effect.
Section 1 of Chapter 7 of the Revised Ordinances of defendant city, introduced in evidence by plaintiffs, provides that upon the annual organization of the City Council said body shall select a number of committees of which one is a committee on streets and alleys. Section 4 of said chapter provides that it shall be the duty of the committee on streets and alleys to see that the street commissioner executes the orders of the council, and the committee is empowered, among other things, to employ such assistance as the street commissioner may require as otherwise provided by ordinance, and shall also have the supervisory control over the streets of the city.
Plaintiffs also introduced in evidence Sections 1 and 2 of Article 7 of the Revised Ordinances of said city. Section 1 provides that the street commissioner shall in all matters act under the direction of the committee on streets and alleys and shall personally superintend the making of repairs on streets and public places ordered by him, and that he shall, among other things, personally oversee and inspect all work on streets and generally perform such other duties as may be required of him by the committee on streets and alleys, and report to said committee as they may direct. Section 2 thereof provides that the street commissioner shall examine the condition of all streets and sidewalks in the city and report to the city engineer or the committee on streets and alleys such as need repairing.
Plaintiffs next introduced in evidence Section 3 of Chapter 19 of the Revised Ordinances of said city which provides that no person shall throw or cause to be thrown, conduct or permit the escape of any filthy substance, contents of water closets or privies, or any dead animal, or any obstruction whatever, into the town branch, or any stream or drain whatever, within the city. (Emphasis ours.)
Clarence Todd, City Clerk of defendant city, called as a witness for plaintiffs, produced city ordinances and the minutes of the City Council for each year beginning with 1933 to and including 1937. Ordinance No. 3701 of said city, introduced in evidence by plaintiffs, provides that it is deemed a nuisance for any person, firm or corporation or any agent or servant thereof to throw or cause to be thrown into the city branch or any sewer within the City of Louisiana, any gasoline, oils, or other inflammable or explosive fluid or other substance whatever of inflammable or explosive character. Violation of the above ordinance is made a misdemeanor and punishable by fine. Said ordinance was adopted and approved June 7, 1935.
In the minutes dated December 1, 1933, it appears that the City Council met in regular session and that: .
The minutes dated January 5, 1934, were introduced in evidence showing that the City Council met on said date and that:
Mr. Trower was then a member of the City Council, as was Mr. Cornish.
The minutes of the City Council of September 7, 1934, showed that:
Mr. Pitney was then a member of the Council.
Said minutes, dated October 2, 1936, showed that:
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