Rutz v. City of St. Louis

• Decision Date: 03 January 1881
• Citation: 7 F. 438
• Parties: RUTZ and others v. CITY OF ST. LOUIS.
• Court: U.S. District Court — Eastern District of Missouri

7 F. 438

RUTZ and others v. CITY OF ST. LOUIS.

United States Circuit Court, E.D. Missouri.

January 3, 1881

Baker &amp Fletcher, for plaintiff.

Leverett Bell, for defendant.

TREAT D.J.

This is an action at law for the recovery of damages consequent upon the alleged injuries caused by defendant. The plaintiff was owner of real estate in Illinois, opposite the city of St Louis. Said city built, it is averred, on its shore unlawfully, a dyke, whereby 40 acres of plaintiff's land was washed away. A demurrer is interposed on two grounds:

First, that the action is local, being for damages to the realty of the plaintiff in another jurisdiction.

This suit is brought in the United States circuit court here, of which the defendant, a corporation, is an inhabitant, within the meaning of the acts of congress pertaining thereto. Being a municipal corporation it could not be an inhabitant of, or found within the jurisdiction of Illinois, or of the United States circuit court for said district; and hence, if the common-law rule as to local actions must prevail, the plaintiff is remediless, practically, however great the wrong sustained, because no legal service could be there had.

It seems that the old rule as to local actions should not be considered applicable to suits of this nature. Where there is a wrong there must be a remedy. The injury in this case was caused by defendant acting within another jurisdiction.

Second. Defendant contends that the dyke built by it was under authority of Missouri statutes, and consequently was not unlawful, despite the averments in plaintiff's petition to the contrary.

Can such a proposition be raised by demurrer to the petition? If the United States courts are bound to take notice of public acts of every state, and the state of Missouri, by statute, authorized the dyke to be erected, then it was a lawful structure, intraterritorially, if properly erected, and does not fall within the rules concerning nuisances. Transportation Co. v. Chicago, 99 U.S. 635; Weeks, Damnum Absque Injuria, Sec. 8; Radcliff v. Mayor, 4 Comst. 195; and various other cases cited, especially Imler v. Springfield, 55 Mo. 125.

There are, however, other and graver considerations involved, to which the attention of counsel was directed in the course of the argument, with the request that they would examine the same, and the authorities to which the court referred. In the absence of any such aid, the court is asked to pass upon a grave question concerning the rights of riparian owners on opposite sides of the river to that where dykes, etc., are constructed, provided such a question can, in the present state of the pleadings, be raised by demurrer.

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