Page v. Metropolitan St. Louis Sewer Dist., No. 50104

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation377 S.W.2d 348
Decision Date13 April 1964
Docket NumberNo. 50104,No. 1
PartiesChester PAGE and Frances Page, His Wife, Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal Corporation and Political Subdivision, Respondent

Page 348

377 S.W.2d 348
Chester PAGE and Frances Page, His Wife, Appellants,
v.
The METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal
Corporation and Political Subdivision, Respondent.
No. 50104.
Supreme Court of Missouri, Division No. 1.
April 13, 1964.

Page 350

Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellants.

Thompson, Mitchell, Douglas & Neill, James M. Douglas, David F. Ulmer, St. Louis, for respondent, The Metropolitan St. Louis Sewer Dist.

HOUSER, Commissioner.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis sustaining the motion of Metropolitan St. Louis Sewer District, hereinafter 'MSD,' to dismiss and dismissing the following petition filed against MSD by Chester and Frances Page:

'SECOND AMENDED PETITION FOR MANDATORY INJUNCTION.

'COUNT I.

'Plaintiffs, for Count I of their cause of action, state:

'1. That they are husband and wife and owners of a certain parcel of land known as Lot 58 of Robinwood subdivision known and numbered as 705 Derhake Road, Florissant, Missouri.

'2. That the defendant is now and at all times hereinafter mentioned was a municipal corporation duly organized and existing under and by virtue of Law, with an office and place of business in the City of St. Louis, Missouri, and engaged in the business of constructing, supervising, maintaining, controlling and regulating sewers and ditches in and around the Metropolitan St. Louis area; that at all times hereinafter mentioned defendant controlled, supervised, maintained and regulated the hereinafter described drainage ditch.

'3. Plaintiffs further state that there is located adjacent to their said property a ditch used for drainage purposes, said ditch being an easement in and upon the property of these plaintiffs and their adjoining property owner, said easement being an easement of record in Book 3305, Page 603 in the Office of the Recorder of Deeds for St. Louis County, Missouri.

'4. Plaintiffs further state that since and before May 1960, said ditch has gradually and constantly widened and deepened causing the property of plaintiffs to crumble, collapse and wash away, thus diminishing the size of plaintiffs' lot; that said ditch constituted a public nuisance, and private nuisance, is dangerous to the health and welfare of the residents of the community and to the plaintiffs; that water from said ditch constantly floods and overflows into and upon plaintiffs' land and property; that these plaintiffs have been deprived of their right of lateral support for their property, and will in the future be deprived of their right of lateral support; that, to date, by virtue of being deprived of their right of lateral support, plaintiffs have been damaged in the sum of FOURTEEN THOUSAND FIVE HUNDRED DOLLARS ($14,500.00) that plaintiffs' are thereby unable to rent said premises because of the conditions herein stated and will in the future incur continuing damages in the sum of ONE HUNDRED DOLLARS ($100.00) per month, and are in danger of suffering irreparable damage to their property if the conditions herein mentioned are allowed to

Page 351

exist; that, although defendant has long known of the aforesaid condition, it has willfully and wrongfully failed and refused to take any steps to remedy these conditions so as to prevent further collapse of ground and loss of property to these plaintiffs and a flooding of their land and property; although requested to do so; that plaintiffs have no adequate remedy at law.

'WHEREFORE, for Count I of their Petition, plaintiffs pray an order of this Court awarding them FOURTEEN THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($14,500.00) damage for the loss of their property, and further, an order directing and requiring defendant to fill in said ditch and to build a retaining wall to provide plaintiffs with lateral support for their property, and for such further orders as this Court may deem just and proper, together with their costs expended herein.

'COUNT II.

'Plaintiff, CHESTER PAGE, for Count II of his Petition, states:

'1. Plaintiff hereby incorporates by reference all of the allegations of Count I, and further states:

'2. That all of the acts and omissions of Defendant which plaintiffs herein complain were performed and committed in a manner that was and is willful, wrongful, wanton, malicious, and inhuman.

'3. That by reason thereof, plaintiff, CHESTER PAGE has been caused great worry about the safety of his wife, his children, persons on and about said premises, himself and his property, and has suffered and will in the future suffer great mental pain and mental anguish, all to his damage in the sum of TWO THOUSAND DOLLARS ($2,000.00).

'WHEREFORE, plaintiff, CHESTER PAGE, prays judgment against defendant on County II in the sum of TWO THOUSAND DOLLARS ($2,000.00).

'COUNT III.

'Plaintiff, FRANCES PAGE, for Count III of her Petition, states:

'1. Plaintiff hereby incorporates by reference all of the allegations of Count I, and further states:

'2. That all of the acts and omissions of Defendant which plaintiffs herein complain were performed and committed in a manner that was and is willful, wrongful, wanton, malicious, and inhuman.

'3. That by reason thereof, plaintiff FRANCES PAGE has been caused great worry about the safety of her husband, her children, persons on and about said premises, herself and her property, has suffered and in the future will continue to suffer great mental pain and mental anquish; all to her damage in the sum of FIVE THOUSAND DOLLARS ($5,000.00).

'WHEREFORE, plaintiff, FRANCES PAGE, prays judgment against defendant on Count III, in the sum GIVE THOUSAND DOLLARS ($5,000.00).'

MSD's motion to dismiss alleged that the petition failed to state a claim upon which relief could be granted in that defendant is a political subdivision of the State of Missouri exercising governmental functions and is not subject to suit upon the claim stated in the petition. Following the dismissal of the petition plaintiffs appealed.

We have jurisdiction for the reason that the amount in dispute exceeds the sum of $15,000.

In support of its position that the court erred in sustaining the motion to dismiss on the theory of governmental immunity appellants make...

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32 practice notes
  • Heins Implement Co. v. Missouri Highway & Transp. Com'n, No. 75313
    • United States
    • United States State Supreme Court of Missouri
    • 17 d2 Agosto d2 1993
    ...nuisance is alleged to have been caused by the public entity's negligence is immaterial. See Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 353-54 Page 694 (Mo.1964). Because MHTC is empowered to exercise the right of eminent domain, § 227.120, RSMo 1986, the trial court did no......
  • Colman v. Utah State Land Bd., No. 860331
    • United States
    • Utah Supreme Court
    • 12 d4 Abril d4 1990
    ...[P]rivate property shall not be taken or damaged for public use without just compensation."); Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 354 (Mo.1964) ("While the state cannot be sued without its consent, and there is no statutory provision authorizing such suits, neverthel......
  • Jones v. State Highway Commission, No. 60017
    • United States
    • Missouri Supreme Court
    • 12 d1 Setembro d1 1977
    ...Highway Commission to obscure ones such as county agricultural and mechanical societies. 16 Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 352 (Mo.1974); Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, 500 (1964); Todd v. Curators of University o......
  • Keith v. Tucker, No. 9166
    • United States
    • Court of Appeal of Missouri (US)
    • 17 d1 Julho d1 1972
    ...v. C. Rallo Contracting Co., Mo.App., 395 S.W.2d 238, 246(13)) or in the reply brief (Page v. Metropolitan St. Louis Sewer District, Mo., 377 S.W.2d 348, 354(9); Edwards v. Durham, Mo., 346 S.W.2d 90, 98(3); Magenheim v. Board of Education of School Dist. of Riverview Gardens, Mo., 340 S.W.......
  • Request a trial to view additional results
32 cases
  • Heins Implement Co. v. Missouri Highway & Transp. Com'n, No. 75313
    • United States
    • United States State Supreme Court of Missouri
    • 17 d2 Agosto d2 1993
    ...nuisance is alleged to have been caused by the public entity's negligence is immaterial. See Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 353-54 Page 694 (Mo.1964). Because MHTC is empowered to exercise the right of eminent domain, § 227.120, RSMo 1986, the trial court did no......
  • Colman v. Utah State Land Bd., No. 860331
    • United States
    • Utah Supreme Court
    • 12 d4 Abril d4 1990
    ...property shall not be taken or damaged for public use without just compensation."); Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 354 (Mo.1964) ("While the state cannot be sued without its consent, and there is no statutory provision authorizing such suits, neverthel......
  • Jones v. State Highway Commission, No. 60017
    • United States
    • Missouri Supreme Court
    • 12 d1 Setembro d1 1977
    ...Highway Commission to obscure ones such as county agricultural and mechanical societies. 16 Page v. Metropolitan St. Louis Sewer Dist., 377 S.W.2d 348, 352 (Mo.1974); Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, 500 (1964); Todd v. Curators of University o......
  • Keith v. Tucker, No. 9166
    • United States
    • Court of Appeal of Missouri (US)
    • 17 d1 Julho d1 1972
    ...v. C. Rallo Contracting Co., Mo.App., 395 S.W.2d 238, 246(13)) or in the reply brief (Page v. Metropolitan St. Louis Sewer District, Mo., 377 S.W.2d 348, 354(9); Edwards v. Durham, Mo., 346 S.W.2d 90, 98(3); Magenheim v. Board of Education of School Dist. of Riverview Gardens, Mo., 340 S.W.......
  • Request a trial to view additional results

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