Martin v. City of St. Joseph

• Decision Date: 01 March 1909
• Citation: 136 Mo. App. 316,117 S.W. 94
• Parties: MARTIN v. CITY OF ST. JOSEPH et al.
• Court: Missouri Court of Appeals

117 S.W. 94

136 Mo. App. 316

MARTIN v. CITY OF ST. JOSEPH et al.

Kansas City Court of Appeals. Missouri.

March 1, 1909.

1. MUNICIPAL CORPORATIONS (§ 845) — NUISANCE — INSUFFICIENT CULVERTS — PLEADING.

A petition, in an action against a city for injuries caused by the overflow of water from an insufficient culvert, which alleged that an embankment was negligently raised and maintained, that such culvert was negligently built and maintained and too small to accommodate the flow of water in the stream, and that defendant allowed it to be choked with débris, is not necessarily based on negligence; but it is sufficient to sustain a recovery as for a nuisance.

2. NUISANCE (§ 1) — DEFINITION — "PRIVATE NUISANCE."

A "nuisance" is anything that worketh hurt, inconvenience, or damage. A "private nuisance" is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.

3. PLEADING (§ 49) — PETITION — THEORY AND FORM OF ACTION.

Under Rev. St. 1899, § 592 (Ann. St. 1906, p. 612), providing that the petition in an action shall contain a plain and concise statement of the facts constituting a cause of action and a demand of the relief which the plaintiff may suppose himself entitled to, whether a petition states facts constituting a cause of action for a nuisance or negligence is immaterial, where the relief demanded would be the same in either case.

4. MUNICIPAL CORPORATIONS (§ 839) — NUISANCE — NOTICE.

Where a city does not create a nuisance caused by a city street obstructing the flow of a stream, it is not liable for its maintenance, unless it maintains the same after notice and request to abate it.

5. MUNICIPAL CORPORATIONS (§ 658) — STREETS — INTEREST IN.

A city does not occupy a relation to its streets as that of lessee. The interest of the city in the street is not of a private character and in no sense partakes of the nature of ownership as understood when applied to the rights of private persons.

6. COURTS (§ 90) — STARE DECISIS.

The last expression of the court on a subject is controlling as against prior opinions conflicting with it.

7. MUNICIPAL CORPORATIONS (§ 845) — NUISANCE — NOTICE — QUESTIONS FOR JURY.

The evidence being conflicting as to whether a city had received notice to abate a nuisance, it was a question for the jury whether the city was liable for the maintenance of the nuisance.

8. MUNICIPAL CORPORATIONS (§ 834) — OBSTRUCTING STREAM — CITY LIMITS.

Where a street obstructs a stream, the culvert being too small to pass the water, the fact that the outlet of the culvert was outside the city limits does not affect the liability of the city for the nuisance caused by the overflow; the liability being based on the maintenance of the embankment within the city limits with an insufficient outlet.

9. MUNICIPAL CORPORATIONS (§ 834) — OBSTRUCTION OF STREAM — NUISANCE — MAINTENANCE — LIABILITY.

Where a street obstructs a stream by providing too small a culvert to pass the water, the city's liability for the nuisance is not affected by the fact that it did not originally construct the street; its maintenance of the obstruction after the city limits were extended to include the locality being sufficient to create the liability.

10. MUNICIPAL CORPORATIONS (§ 834) — NUISANCE — DUE CARE.

Neither can the city escape liability if the culvert was too small by using due care to keep

the embankment in proper condition, though such care might affect the extent of damages by lessening the amount of overflow.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Freeman W. Martin against the City of St. Joseph and the St. Joseph Light, Heat & Power Company for the maintenance of a nuisance. From a judgment in favor of plaintiff against the city, the city appeals. Reversed and remanded.

W. B. Norris and O. E. Shultz, for appellant. Rusk & Stringfellow, for respondent.

BROADDUS, P. J.

This is a suit by plaintiff for damages to his property caused by the acts of the defendants in obstructing a natural water course. There is running into and through the city of St. Joseph a natural water course, which crosses Jule street between Twenty-Eighth and Twenty-Ninth streets. In the year ...