Paddock v. Somes

• Decision Date: 17 November 1890
• Citation: 14 S.W. 746,102 Mo. 226
• Parties: Paddock, Appellant, v. Somes
• Court: Missouri Supreme Court

14 S.W. 746

102 Mo. 226

Paddock, Appellant, v. Somes

Supreme Court of Missouri

November 17, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Reversed and remanded.

Kerr & Kerr for appellant.

(1) The court erred in striking out that part of plaintiff's petition, praying for an injunction. Henderson v Dickson, 50 Mo. 161; Mulholland v. Rapp, 50 Mo 42; Thompson v. District, 71 Mo. 495; Sappington v. Railroad, 14 Mo.App. 86; Hall v. Johnson, 57 Mo. 521. (2) The court erred in refusing instructions asked by plaintiff. Abbott v. Railroad, 83 Mo. 271; McCormick v. Railroad, 57 Mo. 483; Shane v. Railroad, 71 Mo. 237; Martin v. Benoist, 20 Mo.App. 262. (3) The court erred in the instructions given of its own motion. Cases cited, ante. (4) The court erred in giving the instructions asked by defendant. Cases cited, supra; Wood's Law of Nuisances [2 Ed. 1883] pp. 1015, 500-521, 510, and authorities there cited, 506; Cooley on Torts, ch. 19, p. 567, et seq.; Attorney General v. Asylum, L. R. 4 Ch. App. Cases, 142; Hurdman v. Railroad, English Ct. of App. 6 C. L. J. 367.

W. H. Clopton for respondent.

(1) The court did not err in sustaining respondent's motion to strike out the part of plaintiff's petition praying for an injunction, Chancery will not always restrain by injunction a "trespasser merely because he is a trespasser." Echelkamp v. Schrader, 45 Mo. 505; Carlisle v. Stevenson, 3 Maryland Ch. 499; Herr v. Beerbower, 3 Maryland Ch. 456; Wason v. Sanborn, 45 N.H. 169; Wood v. Sutcliffe, 2 Sim. (N. S.) 163; High on Inj., sec. 722; Hil. on Inj. [3 Ed.] sec. 47, p. 636. The amount was too contemptibly small to entitle it to recognition by a high court of chancery. Laney v. Jasper, 39 Ill. 46; Smith v. Adams, 6 Paige, 435; Stewart v. City of Clinton, 79 Mo. 614. (2) The court properly declared the law. The instructions for defendant were correct declarations of law. The first instruction for defendant needs no support. The second instruction is supplemented by reason and authority. Stewart v. Clinton, 79 Mo. 603. The third instruction for defendant is erroneous only in fixing the date of the trial, instead of the date of the institution of the first suit, as the time from which the damage, if any, began. But, as the plaintiff submitted to that period in the beginning of the trial and recognized it in all his instructions, he cannot be heard to complain now. Where a case is tried throughout on one theory, it is too late to raise the objection in the appellate court that the court failed to instruct on an entirely different theory. Bank v. Armstrong, 62 Mo. 59; Fell v. Mining Co., 23 Mo.App. 224, and cases cited. The fourth instruction for defendant was proper. It declared the law as to surface water. Abbott v. Railroad, 83 Mo. 284; Beirson v. Railroad, 78 Mo. 204-12. The instructions given for plaintiff, as modified by the court, properly declared the law. Abbott v. Railroad, supra. (3) Plaintiff bought the lot with knowledge that surface water and spring water flowed over it. Laney v. Jasper, 39 Ill. 46.

Sherwood J. Ray, C. J., dissents; Black, J., regards the action of the trial court as correct in trying the cause as simply an action at law, and concurs in reversing and remanding; Brace and Barclay, JJ., concur.

OPINION

Sherwood, J.

-- John Paddock brought this suit against Samuel Somes for having unlawfully laid a drain pipe across North Broadway from his premises to lots belonging to plaintiff and on which he resided and for continuing to maintain the same, thus wrongfully causing and continuing the discharge of water, drainage and sewerage from defendant's premises onto lots of plaintiff. Plaintiff asked for damages and for an injunction. The plaintiff had previously recovered a verdict and judgment for a nominal sum against the defendant for a like wrong. That judgment remains unreversed.

It was admitted at the trial that the flow of water, drainage and sewerage had continued from the time of the former trial, April 21, 1886, and that defendant created and continued to maintain the nuisance. The foregoing facts were proven on the trial. The answer was a general denial.

The petition in the present action omitting formal parts is the following:

"Plaintiff states that on or about the first day of July, 1883, the defendant then being in possession of the tract of land last aforesaid did wrongfully, wilfully and maliciously excavate and lay a drain from said tract of land, then and now in possession of defendant, across said Broadway, extending the same to and upon the building lots aforesaid of plaintiff, thereby wrongfully, wilfully and maliciously diverting from its natural course the rainfall and the water falling or being on said tract of land of defendant, as well as the drainage and sewerage; and wrongfully, wilfully and maliciously caused the same to be discharged and to flow upon the building lots aforesaid of plaintiff hereinbefore described, and unlawfully, wilfully and maliciously continued to maintain said pipe and flow of water, drainage and sewerage upon lots of plaintiff aforesaid, thereby rendering said lots unfit for building purposes, to the great damage of the plaintiff; that by reason of the premises plaintiff filed his petition in the circuit court, city of St. Louis, state of Missouri, against said defendant, asking damages therefor, in case numbered 69,772, on the twenty-second day of December, 1885; that upon hearing of said cause the court rendered a judgment finding said allegations to be true, and awarding the plaintiff damages therein.

"Plaintiff alleges and avers that ever since December 22, 1885, the said plaintiff and defendant have been, and are now, respectively, in possession of the said respective properties as aforesaid, and that said defendant has ever since said last date unlawfully, wilfully and maliciously continued to maintain said pipe and flow of water, drainage and sewerage upon the lots of plaintiff aforesaid, thereby unlawfully, wilfully and maliciously diverting from its natural course the water passing or being on said tract of land of defendant as well as the drainage and sewerage, and unlawfully, wrongfully, wilfully and maliciously causing the same to flow and be discharged upon the building lots aforesaid of plaintiff, thus continuing to render said lots unfit for building purposes to the plaintiff, to the damage of plaintiff in the sum of $ 5,000; that plaintiff, though often requested, has wholly neglected and refused to desist from the maintaining of said pipe and flow of water, drainage and sewerage as aforesaid on the lots of plaintiff, rendering and continuing to render said property useless to plaintiff; that plaintiff has no adequate remedy at law, and, to avoid multiplicity of suits, plaintiff asks judgment for the said sum of $ 5,000 and costs, and that an injunction issue from this honorable court perpetually restraining defendant from, and ordering him to cease, maintaining said pipe and flow of water, drainage and sewerage on the said premises of plaintiff, and for such other and further relief as to this honorable court may seem meet."

The petition in the former cause, making a similar omission as before, was as follows:

"Plaintiff states that on or about the first day of July, 1883, the defendant then being in possession of the tract of land last aforesaid did wrongfully, wilfully and maliciously excavate and lay a drain from said tract of land now in possession of defendant across said Broadway, extending the same to and upon the building lots aforesaid of plaintiff, thereby wrongfully, wilfully and maliciously diverting from its natural course the rainfall and the water falling or being on said tract of land of defendant, as well as the drainage and sewerage, and wrongfully, wilfully and maliciously caused the same to be discharged and to flow on the building lots aforesaid of plaintiff hereinbefore described, and unlawfully continues to maintain said pipe and flow of water, drainage and sewerage upon lots of plaintiff thereby rendering said lots unfit for building purposes to the damages of plaintiff in the sum of $ 5,000. For which, with the costs, plaintiff prays judgment against the defendant."

The former and present petition are here presented in order that comparison may be instituted between them.

There was abundant testimony to sustain the allegations of the petition. At the close of the case the following instructions were presented by the plaintiff and given or refused as hereinafter stated:

"1. The court instructs the jury that by verdict and judgment in the case, the following facts are established, etc., beyond contradiction:

"That before the filing of the petition in the suit heretofore tried, the defendant, Samuel Somes, by a drain laid across North Broadway, caused the drainage or sewerage to flow from the premises of defendant on the west side of Broadway, and unlawfully caused the same to be discharged and to flow upon the building lots of plaintiff on the east side of North Broadway.

"2. The court instructs the jury that, if they believe from the evidence that the defendant has, since the twenty-second day of April, 1886, continued to cause or suffered the drainage or sewerage to flow from his premises through the pipe laid by defendant's premises on the west side of Broadway onto the premises of plaintiff on the east side of Broadway, they will find a verdict for the plaintiff.

"3. The court instructs the jury, that if they find for the plaintiff they will assess such a sum as damages against the defendant, as will compensate plaintiff for any injury to his lots for building purposes, caused by the flow thereon of drainage or sewerage from defendant's lot to lots of plaintiff...