Luckey v. The City of Brookfield
| Decision Date | 25 November 1912 |
| Citation | 151 S.W. 201,167 Mo.App. 161 |
| Parties | B. C. LUCKEY, Respondent, v. THE CITY OF BROOKFIELD, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. Fred Lamb, Judge.
REVERSED.
Judgment reversed.
Bresnehen & West, Bailey & Hart for appellant.
(1) Respondent cannot recover in this action, as it is improperly brought, being an action for damages to the stock of the respondent, and the recovery, if any, must be for damages to the realty. Defendant's sewer system is permanent, and the damages for which the city would be liable on account thereof are for permanent injury to the land, and not for remote injuries to plaintiff's stock, made sick by drinking the polluted water. Smith v. Sedalia, 152 Mo. 283; Smith v. Sedalia, 182 Mo. 1; Kellogg v Kirksville, 132 Mo.App. 519; Kellogg v Kirksville, 149 Mo.App. 1; Krebs v. Const. Co., 144 Mo.App. 649; St. Louis Trust Co. v. Bambrick, 149 Mo. 560. (2) The defendant has acquired a prescriptive right to empty its sewage into West Yellow creek. Marble Co. v. Gas Light Co., 128 Mo.App. 96; Skinner v City of Slater, 159 Mo.App. 589-591. (3) Plaintiff's instruction No. 1 should have been refused because it ignores the defense that defendant had a prescriptive right to empty its sewage into the creek. Fink v. Phelps, 30 Mo.App. 431; Land & Lumber Co. v. Tie Co., 87 Mo.App. 167; Evans v. R. Co., 16 Mo.App. 522. (4) Plaintiff's instruction No. 2 should have been refused. Because it permits plaintiff to recover for damages to his stock instead of to his real estate. Bungenstock v. Nishnabotnee Drainage Dist., 163 Mo. 198; Pinney v. Berry, 61 Mo. 359.
Burns, Burns & Burns for respondent.
A permanent nuisance is a nuisance not only permanent in the manner of its building but its effect toward the party complaining must be the same or substantially the same each year. In the case at bar the evidence showed that the water on plaintiff's farm was not polluted by the defendant's sewer to the extent of injuring stock more than from two to four years out of ten years. That is that during many years the flow of water in Yellow creek on plaintiff's farm was of such volume that it so diluted the sewage from defendant's sewer that it would not and did not poison stock and from the evidence it appears that it might not injure stock or injure the farm for many years the number of which out of any ten no one could tell until after the damage occurred or did not occur, as the case might be. So that when the nuisance is applied to plaintiff's case it is not permanent but very casual and intermittent and may damage plaintiff once, twice or three times in any ten years and may not damage him at all for that length of time. The fact that plaintiff's damages were intermittent only necessarily means that he could not maintain a suit at any time until the damage actually occurred. It seems very clear that if plaintiff had at any time undertaken to maintain a suit for permanent damages or had treated the sewer as a permanent nuisance to him the court would be wholly without any guide to instruct the jury on the measure of damages. Krebs v. Construction Co., 144 Mo.App. 649; Kellogg v. Kirksville, 132 Mo.App. 519; Kellogg v. Kirksville, 149 Mo.App. 1; Smith v. Sedalia, 152 Mo. 283; Smith v. Sedalia, 132 Mo.App. 157; Charles v. Railroad, 124 Mo.App. 293; Marble Co. v. Gas Light Co., 128 Mo.App. 96; Current Law, Vol. 8, 778; Manufacturing Co. v. Trust Co., 139 Mo.App. 209; Current Law, Vol. 14, 566; Kentucky L. R. 687; Current Law, Vol. 6, 471; 53 S.E. 776; Constitution of Missouri, Art. 11, Sec. 21; Mining Co. v. Hamby's Admr., 90 S.W. 226; Coal Co. v. Doman, 49 S. 242.
--Plaintiff sued the city of Brookfield, a city of the third class, to recover damages for injury to his live stock caused by the pollution by defendant of a watercourse that ran through his pasture land. The period for which damages are claimed in the petition is from August 5, 1910, to March 22, 1911, and the stock injured consisted of 230 sheep and four horses which were kept in the pasture and had access to the contaminated stream. In 1899 defendant built a sewer system which discharged the sewage of the city into a ditch which, in turn, emptied into the stream in question and the stream carried the sewage through plaintiff's pasture. It appears from the evidence of plaintiff that in ordinary seasons the volume of water flowing in this natural watercourse was sufficiently large to dilute the sewage and render it practically innocuous to live stock but that at intervals, averaging three or four years in duration, the volume of water in the stream would become so reduced by scarcity of rainfall as to render the water injurious to animals that drank it. The period for which damages are claimed was in one of these comparatively infrequent dry seasons which, as stated, recurred about three times in each decade.
Defendant built and operated the sewer in the manner stated without acquiring the right by purchase or condemnation to use the watercourse for carrying off the sewage. The cause of action pleaded in the petition and submitted to the jury is bottomed on the idea that the nuisance thus created and maintained by defendant was temporary as to the land of plaintiff since its injurious consequences were intermittent and widely separated and that each injury should be treated as a new and independent cause of action. On this view of the case plaintiff insists that his damages in this instance are to be measured by the loss he suffered in consequence of the injury inflicted on his live stock which had access to the stream during the period in question and drank its impure water. It is the theory of the defense that the nuisance is permanent, that all of the damages to the land of plaintiff accrued at the time of the completion of the sewer system in 1899; that such damages were comprised in and were to be measured by the diminution in the market value of the land caused by the creation of a permanent nuisance and that since this action was not commenced until October, 1911, more than ten years after the cause of action accrued it is barred by limitation. The trial of the issue thus raised resulted in a verdict and judgment for plaintiff and the cause is here on the appeal of defendant.
With one exception the facts and issues of this case run parallel with those we considered in the case of Smith v. Sedalia, recently decided by this court and certified to the Supreme Court by one of the judges on the ground that the decision was in conflict with the opinions of the Supreme Court in Smith v. Sedalia, 152 Mo. 283, 53 S.W. 907 and 182 Mo. 1. The Supreme court in an opinion written by FERRISS, J., approved and amplified our view of the law of that case ( Smith v. Sedalia, 149 S.W. 597), and we think definitely removed the cause of much of the confusion and uncertainty in the decisions relating to the subject of permanent and temporary nuisances and the proper measure of damages to apply in each class of cases.
In that case the city of Sedalia had finally completed a sewer system about eighteen years before the commencement of the action in question and had during that period been emptying the sewage of the city into a natural watercourse that ran through the land of the plaintiff. The injury to the useful occupation and enjoyment of the land was continuous but the plaintiff's action was founded on the view that the nuisance was temporary and that he might maintain periodical suits for the recovery of the damages he suffered in each successive period. But this view was rejected by this court and afterwards by the Supreme Court on...
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