Pinney v. Berry
| Decision Date | 31 October 1875 |
| Citation | 61 Mo. 359 |
| Parties | ELBERT PINNEY, Respondent, v. WM. M. BERRY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jasper County Court of Common Pleas.
G. W. Crow & Geo. T. White, for Appellant.
I. Defendant bought the mill and dam long after the same was erected, and defendant did not heighten it, nor is there any proof that plaintiff gave defendant notice of the injury with a special request to remove said dam before the bringing of this suit.
II. The court erred in refusing defendant's instruction numbered four. (6 Mo., 228).
The court erred in admitting plaintiff's evidence of a diminution of the salable value of plaintiff's farm and homestead, and of the value of a spring or springs within the banks of the river, and of permanent and prospective injuries to said farm and homestead, under defendant's objections. (Hill. Torts, 573, § 16; Id., 602, § 11; 15 Mo., 153; 6 Mo., 228.)
E. J. Montague, for Respondent.
I. The rule of damages laid down by the court below was correct. The established rule is “the difference between the value of the plaintiff's premises before the injury, and the value immediately after the injury.” The benefits to be taken into account, are special and peculiar, accruing to plaintiff alone.
II. Upon the facts of this case, notice and request were not necessary, and if necessary, such notice need not be “written.”
The evidence showed that the dam was erected on appellant's land. He permitted the erection, and was therefore liable. (2 Greenl. Ev., § 472; Staples vs. Spring, 10 Mass., 72.)
III. The evidence shows that appellant raised the dam by filling it with brush and dirt, and gravel, and made the water stand higher in the creek and the little stream. This was equivalent to an original erection, and a continued nuisance, (Id., 572, § 16.)
IV. The second instruction very properly declares that he who permits a nuisance to be erected on his land, becomes liable for all injuries created thereby (2 Greenl. Ev., § 472), and left the jury to determine the fact of such permission, and, also, the fact as to whether defendant continued the nuisance from the spring of 1871 until the bringing of the suit. Both the law and the evidence supported the instruction.
This action was brought to recover damages for an alleged nuisance caused by a dam across a river called North Fork. The plaintiff owned a small farm just above the dam, and alleged in his petition that defendant “erected and maintained” a dam, which caused the water in the river to flow up a branch running from plaintiff's house down the river, and thus destroyed the value of about twenty acres of his land, and impaired the drainage of the remainder, and cut off convenient communication with a part of his land on the side of the river opposite to his dwelling house, and that this overflow and subsequent subsidence filled up the branch with mud, leaves, etc., thereby creating a nuisance which injured the health of his family. The answer denied these allegations and averred that the dam was constructed under the order of court, and in conformity to the statute. The replication denied this, and as there was no proof on the subject, we may dismiss this allegation from consideration.
It appeared on the trial that the plaintiff bought his farm in the spring of 1867; that Berry, the defendant, then owned the land, on which the dam was built in the succeeding winter, but the dam and mill were built by some other persons, who exercised exclusive ownership over the dam, etc.; but how this ownership was acquired nowhere appears, whether by sale, or lease, or mere verbal or written permission to occupy. At all events, in 1871, Berry took possession of the dam and mill, and as the dam was out of repair, he rebuilt it, as some of the witnesses say, higher than it was before, and, according to others, merely filled with brush and gravel, etc. the upper logs previously on the dam. The evidence in regard to the effect of this dam, on the plaintiff's premises occupies a great number of pages of the record, and, on many points, is very conflicting.
No exception was taken to any of the testimony except this: The plaintiff offered to prove that his homestead and farm were rendered less valuable per acre, and that his spring was destroyed, and that his spring was worth_____ dollars. This evidence was objected to as irrelevant upon the ground that the action was on the case for a nuisance, and that the plaintiff could not recover for diminution of the salable value of his homestead and farm, nor for permanent injuries, nor for prospective injuries. This objection was overruled and an exception taken.
The plaintiff then proceeded to state the value of his farm and its diminution in value by the dam, and estimated that diminution at one-half.
A great deal of evidence was given in regard to the spring. The plaintiff estimated this at five hundred dollars, and his expenses in hauling water, occasioned by the loss of the spring, at five dollars per month.
The court gave the following instructions to the jury, at the plaintiff's instance, and exceptions were saved to them by the defendant:
1st. “If the jury believe from the evidence that the defendant Berry raised or repaired the dam in question in the spring and summer of 1871, and that defendant kept and maintained said dam across North Fork, and that in consequence of said dam any part of the land of plaintiff was overflowed, and that plaintiff was injured thereby, or that plaintiff, in consequence of said dam, has been hindered in the free use and enjoyment of his premises, prior to the commencement of this action the plaintiff is entitled to a verdict in his favor.”
2d. “If the jury believe from the evidence that defendant, Berry, at any time since the year 1867, and prior to the commencement of this suit, has kept and maintained a dam across North Fork, and that in consequence of the keeping and maintaining of said dam, the waters of said creek have been made to flow back upon the lands of plaintiff, and that plaintiff has been injured thereby, then plaintiff is entitled to recover.”
3d. “If the jury believe from the evidence that defendant took possession of said dam across North Fork, and raised the height thereof in the year 1871, and kept and maintained said dam after raising the same, up to the time of the commencement of this suit, the defendant is liable to the damages to plaintiff's homestead, occasioned by the erection and maintenance of said dam.”
4th. “If the jury believe from the evidence that the defendant permitted the erection of the mill-dam in question on his land, and that he purchased the said dam in 1871, and continued the same to the time of bringing this suit, then defendant is liable for whatever damages result from the erection and maintenance of said dam.”
The court refused the following instructions asked by defendant:
1st. “The plaintiff on the evidence is not entitled to recover.” 2d. “Unless the defendant erected the dam in controversy, or after he purchased the same, the plaintiff gave him notice of the fact that it flowed his lands and did him damage, and also made a special request on the defendant to remove the same, the jury will find for defendant.”
3d. “If the jury believe that the dam in controversy was not erected by the defendant, but that defendant purchased the same, and that he has not raised the altitude of said dam since he purchased the same, the plaintiff cannot recover in this action unless the jury find from the evidence that the plaintiff gave to defendant notice that said dam flowed the lands of plaintiff, and did plaintiff damage, and also made a special request on defendant to remove the same before the institution of this suit.”
4th. “To entitle the plaintiff to recover, he must prove that defendant erected the dam in controversy, or that after defendant purchased said dam, it overflowed plaintiff's land, and that plaintiff notified said defendant of said injury and made a special request.”
The jury found a verdict for plaintiff, and after a motion for a new trial was overruled, an appeal was taken to this court.
The various objections taken on the trial and here, may be resolved into three principal points: First, was any notice necessary to defendant in this case...
To continue reading
Request your trial
-
Kelly v. City of Cape Girardeau
...of action each time plaintiff was damaged by reason of the flooding of his premises." Kelly v. Cape Girardeau, 72 S.W.2d 880; Pinny v. Berry, 61 Mo. 359; v. R. R., 71 Mo. 575; Horine v. Peoples Oil Company, 200 Mo.App. 233; Prim v. White, 162 Mo.App. 594; Victor Co. v. Morning Star Co., 50 ......
-
Elizabeth Price v. Metropolitan Street Railway Company
...v. Mfg. Co., 129 Mo. 590, 31 S.W. 957; Coontz v. Railroad, 115 Mo. 669, 22 S.W. 572; State to use v. Bacon, 24 Mo.App. 403; Pinney v. Berry, 61 Mo. 359; Barrett v. Telegraph Co., 42 Mo.App. 542.] It is not to be inferred defendant would not have been entitled to a more definite statement ha......
-
Kelly v. City of Cape Girardeau et al., 23629.
...p. 802, sec. 442; Paddock v. Somes, 102 Mo. 226, l.c., p. 240, v. 1; Foncannon v. City of Kirksville, 88 Mo. App. 279; Pinney v. Berry, 61 Mo. 359, 367; Ready v. Mo. Pac. Ry. Co., 98 Mo. App. 467, 470; City of Harrisonville v. Dicky Clay Mfg. Co., 61 Fed. (2d) 210-212. If the bill stated fa......
-
Bragg v. Metropolitan Street Railway Company
...Railroad, 99 Mo. 318; Seckinger v. Mfg. Co., 129 Mo. 590; Coontz v. Railroad, 115 Mo. 674; State ex rel. v. Bacon, 24 Mo.App. 405; Pinney v. Berry, 61 Mo. 359; Barrett v. Telegraph Co., 42 Mo.App. 542. record does not show any objection or exception to any offer of evidence tending to show ......