McCleery v. City of Marshall

• Decision Date: 04 December 1933
• Docket Number: No. 17921.,17921.
• Citation: 65 S.W.2d 1042
• Parties: McCLEERY v. CITY OF MARSHALL
• Court: Missouri Court of Appeals

65 S.W.2d 1042

McCLEERY v. CITY OF MARSHALL

No. 17921.

Kansas City Court of Appeals. Missouri.

December 4, 1933.

Appeal from Circuit Court, Saline County; Robert M. Reynolds, Judge.

"Not to be published in State Reports."

Action by Janet McCleery against City of Marshall. From a judgment for plaintiff, defendant appeals.

Affirmed.

James & James, of Marshall, for appellant.

W. H. Meschede and Louis J. Rasse, both of Marshall, for respondent.

BLAND, Judge.

This is an action for damages caused to plaintiff by reason of a nuisance created by the defendant in the construction of a sewer. There was a verdict and judgment in favor of plaintiff in the sum of $3,000, and defendant has appealed.

The facts show that plaintiff is the owner of a 60 acre tract of land located a short distance south of the city of Marshall; that the lands of one E. E. Elsea and his wife are situated immediately west of those of plaintiff, the two tracts being separated by a public road; that a great many years prior to 1931 the city of Marshall built sewers in the south part of the city which united in one outlet and emptied into a ravine inside of the city limits approximately 1/4 of a mile north of its southern limits; that this ravine in its meanderings crossed the said southern limits of the city and entered the Elsea lands; that it then ran in a southeasterly direction through said lands and crossed the public road; thence in an easterly direction through plaintiff's land; that this system of sewers of the defendant (a city of about 8,000 inhabitants) drained about one-half of its area; that from the point where the sewer emptied into the ravine to plaintiff's land it was more than 1/2 a mile.

In 1931 the city decided to extend the sewer to a point on the Elsea land about 300 feet from plaintiff's land and, by ordinance, it entered into a contract with Elsea and his wife in which they granted the city an easement over and across their lands for such an extension.

The contract provided that the outlet of said sewer on the Elsea property referred to therein as a "temporary outlet," should be used for a term of two years and that within such time the city would, at its own expense, extend the sewer to a permanent outlet in the ravine located on an acre of ground which had been deeded by Elsea and his wife to the city for that purpose, "or extend said sewer to a permanent outlet beyond and outside of the land of" Elsea and his wife; that if the city should fail to make the extension within the time designated it would pay to the Elseas the sum of $867.50, and they should have the right to extend said sewer to the "permanent outlet." (Italics ours.) The acre of ground in question was situated immediately across the road from plaintiff's land.

Thereafter, in the year 1931, the city built an 18 inch sewer beginning with the old outlet in the city limits and running along the ravine 600 or 700 feet. It then left the ravine to the east and ran to a point in a smaller ravine about 300 feet from plaintiff's property where it emptied into the latter ravine. This smaller ravine emptied into the large ravine about 100 feet from plaintiff's property. The entire length of the extension was 3,650 feet and shortened the distance that the sewage was carried. The sewer ended in a "concrete head wall." There were three retards about 100 feet apart built at the lower end of the sewer. These were constructed of large rocks. Each retard made a pond and when a heavy rain would come the filth from these ponds would be washed out on to plaintiff's land.

The evidence shows that prior to building the extension of the sewer there was little or no odor from the stream, as the sewage was exposed to the air and sunlight for a sufficient time to purify it. However, after the extension was built the odor was extremely offensive, intense and very obnoxious and rendered the water flowing in the ravine unfit for use by man or beast.

It appears that it was the intention of the city, at sometime in the future, to build a disposal plant on the acre of ground that it purchased from the Elseas.

The case was tried by the plaintiff and presented to the jury on the theory that the building of the extension constituted a permanent nuisance and, therefore, the measure of damages was the difference between the reasonable value of the land immediately before and immediately after its construction. Defendant contends that, owing to the fact that the city engineer testified that the outlet of the extension was merely temporary and it was the city's intention to extend the same to a permanent outlet, the nuisance, if any, was but a temporary one.

We think there is no question but that the nuisance created by the extension was a permanent one. Smith v. City of Sedalia, 182 Mo. 1, 81 S. W. 165; Luckey v. City of Brookfield, 167 Mo. App. 161, 151 S. W. 201; Kent v. City of Trenton (Mo. App.) 48 S.W.(2d) 571. There was no definite plan for the erection of the disposal plant. The contract with the Elseas, itself, is not certain about it, because it recites that if the city did not run the...