Riggs v. City of Springfield

• Decision Date: 04 April 1939
• Docket Number: 35299
• Citation: 126 S.W.2d 1144,344 Mo. 420
• Parties: Modeana Riggs and Modeana Riggs, Administratrix of R. L. Riggs, v. City of Springfield, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

126 S.W.2d 1144

344 Mo. 420

Modeana Riggs and Modeana Riggs, Administratrix of R. L. Riggs, v. City of Springfield, a Municipal Corporation, Appellant

No. 35299

Supreme Court of Missouri

April 4, 1939

Appeal from Laclede Circuit Court; Hon. William E. Barton Judge.

Reversed.

W D. Tatlow, Kirby W. Patterson, John S. Farrington and Sam M. Wear for appellant; Don O. Vernon of counsel.

(1) The defendant city, by establishing its sewer system in 1893 could have acquired, by condemnation, the right for all time to pollute the waters of Wilson Creek by emptying its sewer therein. Secs. 1524, 1544, R. S. 1889; Secs. 9281, 9298, R. S. 1909; Sec. 6872, R. S. 1929. Under these statutes the city was given the right to establish a sewer system and to use this natural watercourse for public drainage and sewer purposes. These statutes have been so construed by this court. Mining Co. v. Joplin, 124 Mo. 137; Smith v. Sedalia, 244 Mo. 107, 149 S.W. 597; Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471. (2) The city, under the statutes supra, could and did acquire, by appropriation, exactly the same right to pollute Wilson Creek that it could have acquired by condemnation, for the reason that no part of the property of the riparian owners was taken, within the meaning of the Constitution, so as to require the city to institute condemnation proceedings. The damages suffered by the then owners of the property, who had riparian rights in the creek, were purely, and only, consequential, and the city could leave it to such property owners to recover their compensation for such pollution within the statutory period applicable thereto. This has been decided by this court in a number of cases. It is the fixed and settled construction of the Missouri Constitution and the Missouri statutes. Smith v. Sedalia, 244 Mo. 107, 149 S.W. 597; Clemens v. Ins. Co., 184 Mo. 46, 82 S.W. 1; McReynolds v. Ry. Co., 110 Mo. 488; McGrew v. Granite Paving Co., 247 Mo. 549, 155 S.W. 414; Lemon v. Garden of Eden D. Dist., 310 Mo. 179, 275 S.W. 46. (3) The proprietor of land through which a stream flows cannot insist that the water shall come to him in its natural pure state. He must submit, and that, too, without compensation, to the reasonable use of it by the upper proprietors; and he must submit to the natural wash and drainage coming from towns and cities. But a city has no right to gather its sewage together and cast it into a stream so as to injure the lower proprietor. For damages thus sustained the lower proprietor will have an action. But it has been directly held by this court, as early as 1894, that the city could be and was authorized by statute to acquire by condemnation the right to injure the lower proprietor by gathering its sewage and casting it into a stream; in other words, the right to pollute the stream to the extent that would constitute a private nuisance if the city was not authorized to do so. Joplin Mining Co. v. Joplin, 124 Mo. 136. (4) By such lawful appropriation the city acquired a valuable easement in the property from those who then owned the land through which the creek flows; and it has been directly held by this court that it is immaterial whether such easement was created by private or public grant or by prescription. Swisher v. C. & A. Ry. Co., 235 Mo. 441, 138 S.W. 505; St. Louis Savings Deposit Bank v. Kennett Est., 101 Mo.App. 392, 74 S.W. 481. (5) Ordinarily the question of abandonment of an easement is purely one of intention. The acts relied upon as evidence of this intention to abandon must be of an unequivocal and decisive character. Whether a party has abandoned his right to an easement is a question of fact for the determination of the jury. 19 C. J., secs. 149, 151, Title Easements. In note 31 is cited a long list of authorities, including a Missouri case. Duluce Realty Co. v. Staed Realty Co., 245 Mo. 417, 151 S.W. 415.

John T. Sturgis, Phil M. Donnelly, Harold T. Lincoln, A. C. Hayward and Frank B. Williams for respondents.

(1) As we have said, plaintiffs, on the pleadings and the evidence favorable to them, made a case for the jury for damages under the law applicable to eminent domain. Eminent domain is a right inherent in sovereignty to use, take or damage private property for the sole benefit of the sovereign. In this State, it is the State that is sovereign and the right of eminent domain is limited and restricted by the State Constitution, Section 20, Art. II, which says: "No private property shall be taken for private use with or without compensation, unless by consent of the owner," except for certain specific purposes and on conditions not here involved. And by Section 21, Art. X, which says: "Private property shall not be taken or damaged for public use without just compensation," and provides how such just compensation shall be ascertained and paid. The State by express statutory enactment from time to time, delegated to municipal corporations its sovereign power of eminent domain to enable them to deal with the disposal of their sewage and for other purposes. The constitutional provision, however, is the supreme law and is self-enforcing. Tremayne v. St. Louis, 320 Mo. 120; Bridge Co. v. Stone, 174 Mo. 1, 63 L. R. A. 301; Kansas City v. Liebi, 298 Mo. 569; State ex rel. v. McKelvey, 301 Mo. 1; State ex rel. Applegate v. Taylor, 224 Mo. 393; McGrew v. Paving Co., 247 Mo. 549. This constitutional provision dominates and controls all the acts and powers of government, legislative, executive or judicial. (2) The right to compensation for causing an injury to him or his land by the city in disposing of its sewage by discharging such sewage into a watercourse flowing onto or over his land to his injury, is given and guaranteed by this constitutional provision to the riparian owner, through and over whose land the polluted water flows. Mine Co. v. Joplin, 124 Mo. 129; Smith v. Sedalia, 152 Mo. 283; Smith v. Sedalia, 244 Mo. 107; Cape Girardeau v. Hunze, 314 Mo. 438. (3) The right to compensation guaranteed to the riparian landowner whose property is damaged in this manner is not predicated on any wrong or negligence, or trespass on the land, but on the mere fact that the landowner is damaged by having his land so used, and is recoverable by an ordinary action at law for damages. Werth v. Springfield, 78 Mo. 107; Pundman v. St. Charles Co., 110 Mo. 594; Webster v. K. C. & S. Ry., 116 Mo. 114; Gulath v. St. Louis, 179 Mo. 38. In Smith v. Sedalia, 244 Mo. 107, 122, this court says: "This suit is not grounded upon trespass merely, nor upon nuisance, although the injury takes the form of a nuisance, but upon the constitutional right to compensation for property damaged for public use. Webster v. Ry. Co., 116 Mo. 118; Turner v. Ry. Co., 130 Mo.App. 540; and it is so argued in plaintiffs' brief. The city, by proper proceedings to that end, had the right by statute to secure the use of this stream for sewer purposes but did not. The city did not condemn but appropriated the use. Such action, however, does not deprive the plaintiff of his right to compensation, nor does it affect the measure of damages, which, for such use by the city, either by condemnation or appropriation, is the dimunition in market value of the land damaged. McReynolds v. Ry. Co., 110 Mo. 488." (4) The Statute of Limitations is not available as a defense to the cause of action stated in plaintiff's petition, the nuisance being temporary and abatable and not permanent. (a) The pollution of Wilson Creek did not result from the inherent character of defendant's sewer system and disposal plant, but from the increased sewage and the manner in which the system and plant were operated. This proves that the resultant nuisance was and is abatable and that no prescriptive right can accrue to the city. Shelley v. Ozark Pipe Line Corp., 37 S.W.2d 518; Keene v. Huntington, 79 W.Va. 713, 92 S.E. 124, L. R. A. 1917F, 475; Bennett v. Marion, 93 N.W. 558; Kent v. Trenton, 48 S.W.2d 571; Kelley v. Cape Girardeau, 72 S.W.2d 880; Kelley v. Cape Girardeau, 60 S.W.2d 85; City of Harrisonville v. Dickey Clay Mfg. Co., 77 L.Ed. 1208, 61 F.2d 213; Foncannon v. Kirksville, 88 Mo.App. 284; Pinney v. Berry, 61 Mo. 367; Ready v. Mo. Pac. Ry. Co., 98 Mo.App. 470; Fansler v. Sedalia, 176 S.W. 1102; McGowan v. Mo. Pac. Ry. Co., 23 Mo.App. 203; Bollinger v. Amer. Asphalt Roof Corp., 19 S.W.2d 547; Smith v. Sedalia, 152 Mo. 293; Carson v. Springfield, 53 Mo.App. 289; 46 C. J. 650. (5) One asserting a prescriptive right to maintain a nuisance has the burden of establishing all the elements necessary to create such prescriptive right. 46 C. J. 753, sec. 355; Stremph v. Loethen, 203 S.W. 238; Joyce on Nuisances, secs. 55, 56; Fansler v. Sedalia, 189 Mo.App. 459, 176 S.W. 1102; Crosby v. Bessey, 49 Me. 539, 77 Am. Dec. 271. (6) To establish a prescriptive right to maintain a nuisance, it must be shown that the user has contained in substantially the same way and with equally injurious results for the entire statutory period. Fansler v. Sedalia, 176 S.W. 1104, 189 Mo.App. 454; 46 C. J. 750, secs. 351, 352; Stremph v. Loethen 203 S.W. 238; Wood on Limitations (2 Ed.) 182; Wright v. Moore, 38 Ala. 593; Carlisle v. Cooper, 21 N.J.Eq. 576. (7) In order to give rise to a prescriptive right the use must be uninterrupted and continuous for the full prescriptive period. Prescription does not begin to run until the servient estate has been injured. 46 C. J. 753, sec. 352; Stremph v. Loethen, 203 S.W. 238; Bunten v. Ry. Co., 50 Mo.App. 414; Fansler v. Sedalia, 189 Mo.App. 454, 176 S.W. 1102; Skinner v. Slater, 159 Mo.App. 589, 141 S.W. 753; Bradbury Marble Co. v. Laclede Gas Light Co., 128 Mo.App. 96, 106 S.W. 594. (8) In order to establish a prescriptive right to maintain a nuisance the use must be...