Mathiason v. City of St. Louis

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Burgess
• Citation: 156 Mo. 196,56 S.W. 890
• Decision Date: 08 May 1900
• Parties: MATHIASON v. CITY OF ST. LOUIS et al.

56 S.W. 890 156 Mo. 196 MATHIASON
v.
CITY OF ST. LOUIS et al. Supreme Court of Missouri, Division No. 2. May 8, 1900.

EQUITY — INJUNCTION — DRAIN PIPE IN STREET — CROSS BILL — NUISANCE ON PREMISES — ABATEMENT — DEMURRER — MATTERS GERMANE.

Where a bill was filed to enjoin a city from interfering with a drain pipe laid by plaintiff in a street without authority, and the city filed answer and cross bill alleging conduct of plaintiff's business on his premises in a manner constituting a nuisance, and asking for injunction to abate the same, a demurrer to such cross bill was improperly overruled, since a cross bill is an auxiliary bill, and cannot introduce new and distinct matters, but must be germane to the subject-matter of the original bill, and the character of plaintiff's premises, on which the cross bill was based, was not involved in a bill to enjoin interference with a drain pipe, no right to retain which would have been passed by deed to such premises.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

[56 S.W. 891]

Bill by Peter B. Mathiason against the city of St. Louis and others. From a judgment in favor of defendant city of St. Louis on its cross bill, plaintiff appeals. Reversed.

This is a proceeding by injunction, by which it is sought to enjoin and restrain the defendant city, Richard R. Southard, its sewer commissioner, and Charles W. Francis, its acting health officer, from interfering with a certain iron drain pipe laid by him from a bone meal and fertilizer factory, of which he is the owner, situated upon the east side of Second street, between Adelaide and Withers avenues, in the city of St. Louis, under and across Second street, a public highway, to a private sewer across the street from his factory, said private sewer connecting with one of the city's public sewers, and from obstructing or interfering with the drainage from plaintiff's factory premises through said pipe and private sewer into said public sewer. It appears from the petition that the plaintiff laid the drain pipe in question in the street, and connected it with the private sewer, and undertook to discharge the waste water from his factory through said pipe and private sewer without permit from the city authorities. Defendants, by amended answer, denied each and every allegation in plaintiff's petition. The city of St. Louis then, by way of further answer, and as a return to the order to show cause, issued in this case, why an injunction should not be issued as prayed for in plaintiff's petition, pleaded the violation of the city ordinances by plaintiff in laying and continuing the drainage pipe across the street without its permission, and other matters by way of defense, which are unnecessary to state, for the reason that no complaint is made by plaintiff with respect to the ruling of the court in dismissing his bill. "But, further answering, and by way of cross bill herein, the city of St. Louis represents and shows unto the court that for many years, to wit, 15, prior to the institution of this suit, the plaintiff has been conducting the business of a bone-burning, rendering, and fertilizing factory at No. 5310 and 5342 North Second street, within the limits of the city of St. Louis, and in close proximity to the residence of all of the people of this city and to the waterworks, including the storage basins of the city of St. Louis; that plaintiff has so conducted said establishment as, and that it has been during all that time, and is now, a public nuisance; that plaintiff has permitted foul, noxious, and disease-breeding water and waste material to be drained from said establishment in, onto, and upon public and private property immediately adjoining said premises, and has permitted obnoxious, noxious, and health-destroying vapors, fumes, odors, and smells to escape from his said establishment, so as to injure the health of the inhabitants of the city for many blocks around, and so as to make the enjoyment of their property less agreeable and beneficial to them, and so as to create disease among the people in the vicinity, — all to such an extent that many times, heretofore, to wit, on the 6th day of August, 1891, and on divers and sundry other occasions, to wit, August 27,...