New, et al. v. So. Davies Co. Drg. Dist.

• Decision Date: 04 April 1949
• Docket Number: No. 21178.,21178.
• Parties: GEORGE NEW, ET AL., APPELLANTS, v. THE SOUTH DAVIES COUNTY DRAINAGE DISTRICT, ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

220 S.W.2d 79

GEORGE NEW, ET AL., APPELLANTS, v. THE SOUTH DAVIES COUNTY DRAINAGE DISTRICT, ET AL., RESPONDENTS.

No. 21178.

Kansas City Court of Appeals. Missouri.

Opinion delivered April 4, 1949.

Appeal from Circuit Court of Daviess County. — Hon. James W. Davis, Judge.

REVERSED AND REMANDED.

Morgan & Miner, J.P. Morgan and Wm. A. Miner for appellants.

(1) The duty to build and maintain bridges where drainage ditches obstruct public roads has always been that of Drainage Districts organized under the Act of 1913, Laws of Missouri, 1913, page 232, as is now provided in Section 12354, Revised Statutes of Missouri, 1939. State ex rel. Ashby v. Medicine Creek Drainage District, 284 Mo. 636, 224 S.W. 343; State ex rel. Walker v. Big Medicine Drainage District No. 1, 196 S.W. 2d 254. (2) The common law condemns as a public nuisance any unauthorized or unreasonable obstruction of a highway which necessarily impedes or incommodes its use by the traveling public. Glaessner v. The Anheuser-Busch Brewing Ass., 100 Mo. 508; Carson v. Baldwin et al., 144 S.W. 2d 134; 29 C.J. 616 (Sec. 371). (3) Private individual has a cause of action to abate a public nuisance if he has suffered some injury different in kind and not merely in degree from that suffered by the general public, even though it is true that others similarly situated to him may have a like action. Glaessner v. The Anheuser-Busch Brewing Association, 100 Mo. 508; Charles H. Heer Dry-Goods Co. v. Citizens' Railway Co., 41 Mo. App. 63; Beaudean v. The City of Cape Girardeau, 71 Mo. 392; John K. Cummings Realty & Investment Co. v. Deere and Company, 208 Mo. 66; Glasgow v. St. Louis, 107 Mo. 198; Givens v. Van Studdiford, 86 Mo. 149, l.c. 158; Thompson and Son v. City of Macon et al., 106 Mo. App. 84; Arcadia Realty Co. et al. v. City of St. Louis et al., 30 S.W. 2d 995 (Mo. S. Ct.); Rude v. City of St. Louis, 93 Mo. 408; Fairchild et al. v. City of St. Louis, 97 Mo. 85. (4) There is no uniformity in the application of the general rule by the courts of various states. 105 Pacific 632, l.c. 633; Charles H. Heer Dry-Goods Co. v. Citizens' Railway Co., 41 Mo. App. 63. (5) These plaintiffs have alleged sufficient special and peculiar injuries, over and above those suffered by the general public, to sustain their right to bring this suit under the law as followed by Missouri Courts. Borders v. Glenn, 232 S.W. 1062; Patton v. Forgey, 171 Mo. App. 1; Daniel Sheedy v. Union Press Brick Works, 25 Mo App. 527; Charles H. Heer Dry-Goods Co. v. Citizens' Railway Co., 41 Mo. App. 63; Glaessner v. The Anheuser-Busch Brewing Association, 100 Mo. 508; Beaudean v. The City of Cape Girardeau, 71 Mo. 392.

Dean H. Leopard, Randall R. Kitt and Wilder Lintner for respondents.

(1) A private individual has no right of action, either at law or in equity, because of the obstruction of a street or highway, unless he suffers some peculiar or special injury not common to the general public. Cummings Realty & Investment Co. v. Deere & Company, 208 Mo. 66, 106 S.W. 496; Christy v. Chicago, B. and Q.R. Co., 212 S.W. 2d. 476 (1948, K.C.); Thompson and Son v. City of Macon, 106 Mo. App. 84, 80 S.W. 1; Arcadia Realty Co. v. City of St. Louis, 326 Mo. 273, 30 S.W. 2d 995; Gorman v C., B. & Q.R. Co., 255 Mo. 483, 164 S.W. 509. (2) No private individual may maintain a suit either in law or in equity as the result of the maintenance of a public nuisance. Such a situation is a matter solely for the attention of the public authorities. Christy v. Chicago, B. &. Q.R. Co., 212 S.W. 2d 476, 478. (3) The right to travel on public roads and highways is a public right. The obstruction in a public highway which prevents its use is a public nuisance, a public wrong. The right to remedy this public wrong is in the state and is delegated to some public official who has the exclusive right to open the highway. Individuals have no right to exercise that function and cannot bring suit to abate the nuisance. Gorman v. C., B. & Q.R. Co., 255 Mo. 483, 491-492, 164 S.W. 509; Rude v. The City of St. Louis, 93 Mo. 408, 6 S.W. 257; Fairchild v. The City of St. Louis, 97 Mo. 85, 11 S.W. 60; Canman v. The City of St. Louis, 97 Mo. 92, 11 S.W. 60. (4) According to the weight of authority, the injury sustained by the plaintiff must differ not merely in degree but in kind from that suffered by the public generally. 39 Am. Jur., Sec. 126, p. 384; Cummings Realty & Investment Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496. (5) The fact that plaintiffs allege they may have more need or occasion than other persons to make use of the public right, and that their lands may be more damaged by violation of that right, does not authorize them to sue. 39 Am. Jur., Sec. 126, p. 385; Cummings Realty & Investment Co. v. Deere & Co., 208 Mo. 66, 106 S.W. 496; Thompson and Son v. City of Macon et al., 106 Mo. App. 84, 80 S.W. 1; Arcadia Realty Company v. City of St. Louis, 326 Mo. 273, 30 S.W. 2d 995; Bouquet v. Hackensack Water Company, 90 N.J.L. 203, 101 Atl. 379; Whitmore v. Brown, 102 Me. 47, 65 Atl. 516. (6) Alleged public wrongs or neglect or alleged breach of public duty cannot be redressed at a suit in the name of an individual or individuals whose interest in the right asserted does not differ from that of the public generally, or who suffers injury in common with the public generally, even, it seems, though his loss be greater in degree. 39 Am. Jur., Sec. 11, p. 863; Davis v. Commissioners of Hampshire County, 153 Mass. 218, 26 N.E. 848; Alexander v. Wilkes-Barre Anthracite Coal Company, 254 Pa. 1, 98 Atl. 794. (7) An obstruction in the highway, but not directly in front of plaintiff's property is not such special damages as will entitle the plaintiffs to sue. Cummings Realty & Investment Co. v. Deere & Company, 208 Mo. 66, 106 S.W. 496; Arcadia Realty Company et al. v. City of St. Louis et al., 326 Mo. 273, 30 S.W. 2d 995; Wilson v. Kansas City, 162 S.W. 2d 802 (Mo. Sup., 1942); Rude v. The City of St. Louis, 93 Mo. 408, 6 S.W. 257; Fairchild v. The City of St. Louis, 97 Mo. 85, 11 S.W. 60; Canman v. The City of St. Louis, 97 Mo. 92, 11 S.W. 60. (8) If an individual is interfered with in the use of the highway in the same manner as the other members of the community, his injury is merged in that of the public. The law affords no private remedy for anything but a private wrong, that the damages resulting from a common or public nuisance, such as affects all the public in the same way, though in different degrees, are of a nature to be impossible of apportionment among the injured public, and that, therefore, the only action maintainable is by the State. Jacksonville T. &. K.W.R. Co. v. Thompson, 34 Fla. 346, 16 So. 282. (9) It is not enough that the alleged injury is merely greater than that suffered by the general public; it must be different in kind. Cummings Realty & Investment Co. v. Deere & Company, 208 Mo. 66, 106 S.W. 496; Arcadia Realty Co. v. City of St. Louis, 326 Mo. 273, 30 S.W. 2d 995; Rude v. The City of St. Louis, 93 Mo. 408, 6 S.W. 257. (10) The alleged necessity of taking a longer or more circuitous route does not constitute special injury or damage. Rude v. The City of St. Louis, 93 Mo. 408, 6 S.W. 257; Fairchild v. The City of St. Louis, 97 Mo. 85, 11 S.W. 60; Blanding v. City of Las Vegas, 52 Nev. 6, 280 Pac. 644; Jacksonville, T. & K.W.R. Co. v. Thompson, 34 Fla. 346, 16 So. 282; Stoutemeyer v. Sharp, 89 Ark. 175, 116 S.W. 189; Davis v. Commissioners of Hampshire County, 153 Mass. 218, 26 N.E. 848. (11) The allegation of the alleged reduced value of the lands is not sufficient, and does not constitute a special damage or injury. Cummings Realty & Investment Co. v. Deere & Company, 208 Mo. 66, 106 S.W. 496; Thompson and Son v. City of Macon, 106 Mo. App. 84, 80 S.W. 1; Arcadia Realty Company v. City of St. Louis, 326 Mo. 273, 30 S.W. 2d 995; Whitmore v. Brown, 102 Me. 47, 65 Atl. 516; Davis v. Commissioners of Hampshire County, 153 Mass. 218, 26 N.E. 848. (12) In order for a property owner to be able to allege facts showing that he suffers a special or peculiar injury on account of an obstruction of a highway, his property or some part of it must abut on the obstructed portion of the highway, or else such obstruction must isolate his property from access to other roads. Kansas City v. Brown, 286 Mo. 1, 227 S.W. 89, 94; Glasgow v. St. Louis, 107 Mo. 198, 17 S.W. 743; Christy v. Chicago, B. and Q.R. Co., 212 S.W. 2d 476 (1948, K.C.). (13) A suit of this nature would have to be brought by the State through its proper and authorized officer, the Prosecuting Attorney. Section 12942, R.S. Mo., 1939; State ex rel. Walker, Pros. Atty., v. Locust Creek Drainage District, 58 S.W. 2d 452, and 228 Mo. App. 434, 67 S.W. 2d 840; State ex rel. Thrash v. Lamb, Judge, 237 Mo. 437, 141 S.W. 665. (14) The Drainage District is a necessary party defendant. State ex rel. Jones v. Chariton County Drainage District No. 1, 252 Mo. 345, 158 S.W. 633; State ex rel. McWilliams v. Little River Drainage District, 269 Mo. 145, 190 S.W. 897. (15) Where the property or interest of a municipal corporation will be affected in case the injunction asked for is granted, it is generally held that it, as well as the particular officer or officers sought to be enjoined, should be made a party or parties. 32 C.J., Sec. 480, pp. 298, 299; School District Number Four v. P.R. Smith, 90 Mo. App. 215, 227; Bradley v. Gilbert, 155 Ill. 154, 39 N.E. 593, 595; Brown v. City of Frankfort, 9 S.W. 384 (Ky.); Ennis v. Pollock, 143 Ga. 252, 84 S.E. 539; Nicolai v. Vernon, 88 Wis. 551, 60 N.W. 999; Basham v. Holcombe, 240 S.W. 691, 693 (Texas); Berdan v. Passaic Valley Sewerage Comrs., 88 Atl. 202, 206 (N.J.). (16) Where the interests or property rights of a governmental or civil subdivision, such as a municipality, county, or school district, will be affected in case the injunction asked for is granted, generally it is held that it should or must be made a...