Rychlicki v. The City of St. Louis
| Decision Date | 16 May 1893 |
| Citation | 22 S.W. 908,115 Mo. 662 |
| Parties | Rychlicki, Appellant, v. The City of St. Louis |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Action for damages for collecting surface water by means of a large open ditch and then discharging the water thus collected by means of two conduits or drains under Page avenue upon plaintiff's land, in a body.
Omitting caption, the amended petition filed February 25, 1890, is as follows:
"Plaintiff by leave of court, files this amended petition herein and for cause of action against defendant states: That he is in fee simple entitled to and in actual possession of and for ten years prior to the year 1880 was so entitled and possessed of a certain tract or parcel of land, lying and being situate in said city of St. Louis (a municipal corporation of said state), containing fifteen arpens, be the same more or less and bounded west by land of Bernard Pratte, south by land of owners unknown, east by King's Highway and north by Page avenue.
Plaintiff further states that defendant illegally and without color of title or right under and across Page avenue laid conduits or drains and by which conduits and drains the surface waters falling north of said Page avenue were collected and thrown upon the said land of plaintiff.
Plaintiff further states that the tract so owned and possessed by him plaintiff, was at the time of the laying of said conduits and drains cultivated land, and by reason of said surface waters being so thrown upon it, was ruined for the purpose of cultivation, turned into a morass, rendered unhealthy and unwholesome to plaintiff and his family, rotted and damaged the fences thereon, making drains, bridges and ditches necessary, to the great detriment of plaintiff and by reason of all of which he has sustained damages in the sum of $ 6,000 and costs, for which sum he asks judgment."
The answer to this petition was a general denial and also a plea of "contributory negligence."
The original suit was brought in September, 1880. The subjoined plat illustrates the situation of the property in question and its surroundings. An outline of the testimony, sufficient for the purposes of the opinion will hereafter be furnished.
Alfred A. Paxson for appellant.
(1) Instruction number 2 given by the court at the instance of defendant is erroneous, confusing and misleading, and does not declare the correct principle of law applicable to the facts in the case and should not have been given, Rychlicki v. St. Louis, 98 Mo. 497; Benson v. Railroad, 78 Mo. 512; McCormack v. Railroad, 57 Mo. 434. It is inconsistent with the first instruction given for the plaintiff, and therefore the jury had nothing to guide them on the real issue in the case. Thomas v. Babb, 45 Mo. 384; Stevenson v. Hancock, 72 Mo. 612; Modisett v. McPike, 74 Mo. 636; Price v. Railroad, 77 Mo. 508; Frederick v. Allgaier, 88 Mo. 598; State v. Herrell, 97 Mo. 105. (2) Defendant's instruction No. 6 is misleading and erroneous and should not have been given in the form asked. (3) The court erred in not granting a new trial on account of juror James H. Duffer having been connected with defendant's street department during a portion of the time covered by the petition, and which was unknown to plaintiff at the time of trial, as shown by affidavits. (4) The verdict is not supported by the evidence, and is so strongly against the entire evidence that it must be ascribed to passion, prejudice, partiality or ignorance caused by the contradiction in the instructions as to the law of the case. Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 120; Caruth v. Richeson, 96 Mo. 186; State v. Primm, 98 Mo. 368. (5) The court erred in the exclusion of the letter dated March 31, 1880, written by Mr. Garesche to the then mayor of defendant and the indorsements thereon. Pinny v. Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575; Wayland v. Railroad, 75 Mo. 548.
W. C. Marshall for respondent.
(1) The facts of the case are wholly different from those presented on the first appeal in this case (98 Mo. 497). (2) Surface water is a common enemy. Stewart v. Clinton, 79 Mo. 612. (3) The plaintiff is not entitled to any damages by reason of the change of grade on Page avenue. Stewart v. Clinton, 79 Mo. 612.
On a former occasion this cause was before this court, 98 Mo. 497, 11 S.W. 1001, where it was held in reversing the judgment of the lower court, that the city would be responsible for collecting surface water into drains, gutters, culverts and conduits and then discharging the water thus accumulated in a body on the land of an adjacent proprietor. But the basis of that ruling was furnished by facts offered to be proved in the trial court, and which that court refused to admit to be proved. The case as now presented differs widely from the hypothetical case aforesaid.
The record has been carefully read, and while it shows that the county of St. Louis was the creator of the nuisance in 1870-1871, yet it also shows that the district of country which embraced the premises in question became, by a legislative act, a part of the city in 1872, remained so until 1874, when by a like act it again became a part of the county, and so remained until October 22, 1876, when it again became a part of the city, of which it now forms a part. But it does not appear that the city had any hand either in the original injurious erection of the nuisance nor in its...
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