Potashnick Truck Service v. City of Sikeston

• Citation: 173 S.W.2d 96,351 Mo. 505
• Decision Date: 20 July 1943
• Docket Number: 37960
• Parties: Potashnick Truck Service, Inc., Appellant, v. City of Sikeston et al
• Court: Missouri Supreme Court

173 S.W.2d 96

351 Mo. 505

Potashnick Truck Service, Inc., Appellant, v. City of Sikeston et al

No. 37960

Supreme Court of Missouri

July 20, 1943

Appeal from Scott Circuit Court; Hon. James C. McDowell Judge.

Affirmed.

Bailey & Bailey for appellant.

(1) Although municipalities of this state have a right to declare what constitutes a nuisance and to abate nuisances even in a summary manner, it does not follow that in doing this they are above the law; they must abate a nuisance in a lawful manner, and always subject to determination by the courts both as to the fact of nuisance and as to the manner of abatement. The power to abate does not carry with it the power to destroy. Walther v. City of Cape Girardeau, 149 S.W. 36, 166 Mo.App. 467. (2) A source of damage to a private dwelling is not a public nuisance even if similar damage is inflicted on others. Pennsylvania Coal Co. v Mahon, 260 U.S. 393, 67 L.Ed. 322; Smith v. Sedalia, 53 S.W. 907, 152 Mo. 283. (3) A municipality may not, under the guise of the police power, arbitrarily divert property from its appropriate and most economical use, or diminish its value by imposing restrictions which have no other basis than the momentary taste of the public authorities. Spann v. Dallas, 111 Tex. 350, 19 A. L. R. 1397, 235 S.W. 513; Austin v. Thomas, 96 W.Va. 628, 38 A. L. R. 1490, 123 S.E. 590; Fitzhugh v. Jackson, 132 Miss. 585, 33 A. L. R. 279, 97 So. 190; Tighe v. Osborne, 149 Md. 349, 43 A. L. R. 819, 131 A. 801; Goldman v. Crowther, 147 Md. 282, 38 A. L. R. 1455, 128 A. 50; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1, 256 S.W. 474. (4) Ordinance No. 1492 of the City of Sikeston is unreasonable in that it is the product of legislalative whim or caprice and should be declared invalid. City of St. Charles v. Elsner, 56 S.W. 291, 155 Mo. 671. (5) Where the general power exists to declare a nuisance, a city cannot declare the place of a single individual to be a nuisance in the absence of a general regulation applicable to all others of the same class. City of Sturgeon v. Wabash Ry. Co., 17 S.W.2d 616, 223 Mo.App. 633. (6) A stock loading pen or transfer pen is not a nuisance per se. Kays v. City of Versailles, 22 S.W.2d 182. (7) The doctrine of equitable estoppel or laches may be applied to cities. State ex rel. City of Sikeston v. Missouri Utilities Co., 53 S.W.2d 394. (8) The doctrine of laches will be invoked when it appears that because assent, actual or implied, has materially changed the conduct of the party alleging estoppel with respect to the subject matter. Blackford v. Heman Const. Co., 112 S.W. 287, 132 Mo.App. 157.

Robert A. Dempster for respondents.

(1) The City of Sikeston, being a city of the third class, has express legislative authority to suppress, abate, and remove hogs and cattle pens that may be dangerous or detrimental to the public health of its citizens. Sec. 6957, R. S. 1939. (2) City Ordinance No. 1492, of the City of Sikeston, is a valid exercise of the police power as it was adopted to secure the general health of the inhabitants of the city by ordering the abatement and removal of a nuisance in the nature of a cattle or hog pen. Sec. 6957, R. S. 1939. (3) The keeping of hogs in a filthy pen near a dwelling in a city or town is a nuisance, per se. Whipple v. McIntyre, 69 Mo.App. 397; Kays v. City of Versailles, 22 S.W.2d 182. (4) The courts will not declare an ordinance void when the object to be accomplished is conducive to public interest and public health unless it is clearly unreasonable, but will rather accord the city a liberal discretion both as to the ends sought and to the means employed. St. Louis v. Galt, 179 Mo. 8, 77 S.W. 876; Chillicothe v. Brown, 38 Mo.App. 609; Walther v. Cape Girardeau, 166 Mo.App. 467, 149 S.W. 36.

OPINION

Ellison, J.

This is an appeal from a decree of the circuit court of Scott County declaring appellant's stock pen a nuisance, and denying an injunction against the respondent city to restrain the enforcement of its ordinance so declaring and ordering removal of the pen within thirty days. The appellant's petition in the circuit court challenged the constitutionality of the ordinance. That contention has been abandoned on this appeal and the basis for appellate jurisdiction in this court is that the value of appellant's outlay is $ 8,000 and the expense involved in complying with the ordinance would equal or exceed $ 25,000.

There is practically no dispute on the applicable law, and the case must hinge on the conclusions to be drawn from the evidence. Appellant concedes that municipalities of this state have a right to declare what constitutes a nuisance and to abate nuisances even in a summary manner. Yet it further and correctly asserts this power cannot be exercised unreasonably, abusively or capriciously; and that such action is subject to review by the courts, both as to the fact of the nuisance and as to the manner of abatement. The further assignment is made, and was pleaded in appellant's petition, that the respondent city is estopped by its own laches. The facts are as follows.

Appellant is duly engaged in the business of transporting freight and live stock as a common carrier. A large portion of its northbound freight from Sikeston to St. Louis and East St. Louis is live stock, mainly cattle and hogs. It operates a stock pen on a part of Block 2, Chamber of Commerce Addition to the City of Sikeston, near the intersection of U.S. Highways 60 and 61. It has been maintained at that location for four or five years, and was put there with the oral consent of the city authorities. Prior to that time appellant had a pen in its wagon yard at another location nearer the center of town and was required to remove it to its present location because complaints arose on account of the stock feeding carried on at the former location.

The pen is about 20x30 or 35 feet in size. It has a sheet iron roof, is divided into sections inside for the separation of cattle, hogs and sheep, and the floor is graveled with white rock chat. It has a capacity of 150 hogs and would accommodate a varying number of cattle according to their size. It chief use is in assembling live stock brought from the neighboring farming district by local trucks and transferring it to through trucks bound for the city live stock markets. The stock is not fed or watered in the pen, but there is a hydrant by means of which hogs, especially, are sprinkled in hot weather.

Appellant's main office or dead freight terminal is within 60 feet of the stock pen. One of appellant's officers testified it is necessary for the two to be close together so that the employees of the main office can wait on trucks coming to and departing from the stock pen. He insisted it would not be feasible to have the pen alone removed to the edge of or outside of town because the stock trucking business at the pen is too intermittent to warrant the stationing of an employee there; and besides he might make private trades and cheat the company. On the other hand if the company should move its main office and terminal to the edge of town along with the pen the business would lose contact with the public. One of the appellants testified they have a payroll of $ 25,000 or $ 30,000 a month and that the livelihood of three or four hundred people depends on their business -- all this indicating the live stock traffic through the stock pen is considerable.

When the appellant's freight terminal and stock pen were built at their present location it was a small cotton patch. There were a number of houses in the vicinity, and at least one restaurant. Appellant's general manager, Eugene Potashnick admitted "we built the pen knowing people lived in the neighborhood. It was a residential section." Since then the appellant's business has grown greatly and many other businesses have been established there. We take judicial notice that Sikeston is a growing city, having a Federal census population of 5676 in 1930 and 7944 in 1940.

Appellant's officer testified: "The pen is surrounded practically in all directions by businesses," established restaurants, filling stations, barber shops, garages, hotel, shoe factories, etc. Directly west across Highway 61 is a park owned by the International Shoe Company, and immediately north thereof is that Company's factory. North of Highway 60 are a number of filling stations and bulk plants. Directly north of the stock pen is a filling station. Beyond that, in the order named, are a restaurant, a garage, a business building (drug store?) and a hotel. South of the stock pen, across the street, is a barber shop. Eastwardly, in order, are a cleaning shop, a vacant lot, then residences continuing on Greer Avenue. East of the terminal are a vacant lot, a garage, a hotel and a former auction barn and livestock pen now used by the W. P. A. for distribution of their produce. The Lewis cleaning and pressing shop is within 40 feet of the stock pen, his residence 10 feet further.

Regarding the condition in which the stock pen is kept, and its effect on health, peace and comfort. Appellant's witness Dr. Old, a deputy State Veterinarian, and he had examined the stock pen the morning of the trial and thought it all right. There was no odor and it did not look like it had been cleaned that morning. General Manager Potashnick testified "wherever there is livestock there is odor;" but that they did no feeding or watering there and the pens were kept clean. As an illustration he stated that his livestock trucks, after being washed out, hauled government inspected fresh meat back from St. Louis on the return trip. He also said there are other stock pens in the city, but their location, condition and extent of use were not shown. There was no general...