Person v. City of Independence

• Decision Date: 31 January 1938
• Docket Number: No. 18946.,18946.
• Citation: 114 S.W.2d 175
• Parties: PERSON v. CITY OF INDEPENDENCE.
• Court: Missouri Court of Appeals

114 S.W.2d 175

PERSON v. CITY OF INDEPENDENCE.

No. 18946.

Kansas City Court of Appeals. Missouri.

January 31, 1938.

Rehearing Denied March 7, 1938.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

"Not to be published in State Reports."

Action by Maude R. Person against the City of Independence for damages arising from a nuisance allegedly maintained by the defendant. From an adverse judgment, plaintiff appeals.

Judgment reversed and cause remanded.

C. R. Leslie, S. G. Edsell, Walter Raymond, and Hume & Raymond, all of Kansas City, for appellant.

John F. Thice, of Independence, and Charles V. Garnett, of Kansas City, for respondent.

REYNOLDS, Judge.

This cause comes to the writer of this opinion on rehearing.

This action, filed on July 23, 1934, is for damages arising from a nuisance alleged to have been maintained by the defendant city.

At the close of the plaintiff's evidence, the court gave the defendant's instruction in the nature of a demurrer to the evidence, whereupon the plaintiff took an involuntary nonsuit with leave. Subsequently, she filed a motion to set aside the nonsuit, which was overruled. She has appealed.

The facts show that, since 1909, the defendant, a municipal corporation, has maintained a septic tank, or sewage disposal plant, at the corner of Twenty-Third and Crysler streets, near the limits of the city; that the sewage from the southwest portion of the city is conveyed to this tank for treatment; that the plant covers about a half acre of ground; that, prior to 1927 and 1928, there were quite a number of buildings constructed in the area in question but, after that time, the "building activities let down or about ceased" and the "development amounted to practically nothing"; that from January, 1909, until June 23, 1929, there were 1,220 permits for sewer connections issued to individuals in the sewer district which the disposal plant served; that from July 23, 1929. to July 23, 1934, there were 114 permits for such sewer connections and, from 1928 to 1929, there were 55; and that, during the whole time in question, there were no additional lateral sewers built, the increased sewage coming merely from the additional house connections.

The evidence further shows that there is a stream called "Rock Creek" running in a general westerly direction past the disposal plant, and that, after the sewage is treated in the plant, the residue is discharged into this creek; that the plaintiff and her family lived about 150 to 200 feet west of Twenty-Third and Crysler streets and about 200 feet from the creek; that the plaintiff acquired and moved into the property in October, 1925; that it consists of about two acres, on which is a house and another small building which she built upon the premises east of the house; and that the creek runs near the plaintiff's ground and at one place touches it.

It is claimed by the plaintiff that the disposal plant and the refuse discharged from it by the defendant into the creek created a nuisance by reason of its giving off disagreeable and sickening odors, etc., and that this condition was not noticeable until about the first of February, 1930.

The parties are not in dispute as to the fact that the plaintiff's evidence is sufficient to show that the conditions present constituted an actionable nuisance; but they are in disagreement as to when the nuisance was created, the plaintiff contending that it began in 1930 and the defendant claiming that it commenced previous to July 23, 1929, five years or more before the commencement of this action, and that the action is barred by limitation.

The plaintiff testified that there was considerable shrubbery between her house and the disposal plant, which obstructed her view, and that she did not know of the existence of the plant until after she had purchased the property; that she worked away from home during the day; that the first time she noticed any odor was about six months after she moved into the property, when she noticed a slight odor, but she did not know where it came from; that she wondered about it; that it seemed to be off in the distance at that time and she noticed it more when the air would be heavy and close to the ground; that atmospheric conditions seemed to have something to do with its being noticeable; that, from the time she first noticed it until 1930, she very seldom afterward noticed it, perhaps once or twice or three times a year, prior to 1930. She was asked if she did not find out about a year or two after she moved there, about 1926 or 1927, that the creek stunk, to which she answered: "No, I wouldn't say it had such a disagreeable odor; they called it Stink Creek." She was asked if she would not call the smell from the creek a "pretty bad smell." She answered, "Well, if you go right upon it, I suppose it would be," but that she lived 200 feet from it; that any odor was objectionable but, so long as it was not bad enough to create a disturbance and was not continuous, she did not consider it as being extreme; that she did not know of the presence of the septic tank until the next spring after she moved in; that she did not notice any odor the day she moved in; that it snowed that day; that, between the time she moved in and the next spring, she did not get home from work until night and it was almost dark when she would leave home in the morning; that she was only at home Sundays and it was bad weather and she did not get outdoors much; that the next spring she was in the garden and noticed a "slight odor coming from somewhere"; that she "noticed a slight odor and wondered where is was coming from and went on in the house, and of course it wasn't strong enough to notice just where it was coming from."

The following is from the plaintiff's testimony in the record:

"Q. But you found out that summer where it came from, didn't you? A. Well, no, I don't believe that it was that summer.

"Q. Well, how soon do you think it was after that that you found out? A. Might have been late that summer, or the next.

"Q. Well, you got some good damp atmosphere when there wasn't any wind, then you had plenty of that odor, didn't you? A. I wouldn't say we did, no. It was like it was coming from a distance, it seemed to be—well, to be frank about it, I thought the odor was coming from somebody's toilet, that they had either cleaned out at the time up on the—I am going to be frank about it, I didn't know what the tank was for, what a septic tank was used for, and therefore I didn't know it contained an odor and I didn't know where it was coming from. * * * I have stated time and time again, I am employed in the day time and I am only home in the evening and I didn't have much opportunity of getting out and looking over the place."

She testified that, for a time after she purchased the property, she did not talk to any of the neighbors; that she found out later from her neighbors where the odor was coming from; that "They said it was Rock Creek, and they said, `Have you ever noticed the smell coming from that?' and I told them no, because I hadn't been around much, and they said, `Everybody around here calls it Stink Creek,' and of course in time I did find it to be a very much talked about proposition"; and that her neighbors told her this possibly a year or two after she moved there.

The following is from her cross-examination:

"Q. But you found out about a year or two after you got down there, about 1926 or '27 that the creek really did stink? A. No, I wouldn't say it had such a disagreeable odor; they called it Stink Creek.

"Q. Well, what did it smell like, tell the jury? A. Well, as I said before, all the odor is attached to an out-door toilet.

"Q. Well, I would call that a smell, wouldn't you, pretty bad smell? A. Well, if you go right upon it, I suppose it would be.

"Q. Well, now you lived right there? A. Yes, sir—why, no, two hundred feet from it.

"Q. Well, can you tell the jury whether it did or did not, you ought to know? A. Well, I wasn't close enough to it that I could just say whether it was very disagreeable, the creek itself."

It appears that a petition was circulated to do away with the septic tank and build a sewer through the neighborhood, which the plaintiff signed. She testified that she signed the petition but she did not recall when it was, whether in 1930 or before; that she "was told the State Board of Health was down there"; and that the people in the neighborhood circulated a petition which she signed.

The cross-examination continued:

"I signed a petition to help my neighbors out in any way I could to abate anything that was disagreeable in the neighborhood. * * * I have stated before that the neighbors came to me and asked me if I wouldn't help them and sign the petition and I naturally did, as I said before; if we could get a sewer in there or help any of them out. I have signed several petitions and I don't recall any one particularly, but I remember I signed one.

"Q. To do what? A. To do away with the septic tank and procure a sewer system."

(She did not remember whether the petition she signed was directed to the State Board of Health or to whom, but it was a petition to help her neighborhood.)

The following is from her redirect examination:

"Q. Did those odors either from Rock Creek or the tank ever sicken you in your home prior to 1930? A. No, sir."

She further testified that, in the year 1930, she worked a part of the year; that the odors increased in the year 1930, becoming first apparent in May or June, beginning when it was warm enough to be outdoors; that, coming home from work in the evening, she could smell the fumes from the tank a block away; that, when she would get into the house, she would be unable to open the doors or the windows because the odor was so strong; that she and her family would be unable to go to sleep; that, "Well, we just went into the house and shut the doors and windows and put on electric...