Scheurich v. Empire Dist. Electric Co.

• Decision Date: 31 May 1916
• Docket Number: No. 17692.,17692.
• Citation: 188 S.W. 114
• Parties: SCHEURICH v. EMPIRE DIST. ELECTRIC CO.
• Court: Missouri Supreme Court

188 S.W. 114

SCHEURICH v. EMPIRE DIST. ELECTRIC CO.

No. 17692.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

Rehearing Denied July 5, 1916.

Appeal from Circuit Court, Newton County; Car McNatt, Judge.

Action by A. J. Scheurich against the Empire District Electric Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

See, also, 109 Mo. App. 406, 84 S. W. 1003.

C. H. Montgomery, of Joplin, for appellant. Spencer & Grayston, of Joplin, for respondent.

WALKER, J.

In January, 1911, plaintiff filed in the circuit court of Newton county a petition claiming damages for the maintenance by defendant of a dam which obstructed the waters of a creek causing it to overflow plaintiff's land. Defendant demurred to the petition. The demurrer was sustained, and judgment rendered for the defendant, from which plaintiff appeals. The amount sued for fixes the appellate jurisdiction in this court.

In substance the petition stated: That the defendant, the Empire District Electric Company, was and is a corporation organized under the laws of the state of Kansas. That the plaintiff is, and has been for more than 20 years last past, the owner in fee and in the actual possession of certain lands, describing them, in Newton county. That he has upon said lands a dwelling house in which plaintiff lives with his family, and gardens, fields, stables, and other buildings, and crops and valuable mines. That all of said lands before the wrongful act of defendant were valuable as mineral lands and for farming and gardening purposes. That before said wrongful act a stream called Shoal creek, a water course not navigable, flowed unobstructed through plaintiff's land, and had so flowed from time immemorial. That in the year 1891 the Southwest Missouri Electric Light & Water Power Company, a corporation, without first obtaining permission from the circuit court of Newton county, Mo., and without any legal authority, did wrongfully and willfully build in and across said stream, where the same passes through and along the sides of plaintiff's land, a dam and obstruction, thereby unlawfully and wrongfully obstructing the waters of said stream, and backing the same up, over, and around the lands of plaintiff, and causing the said waters to overflow the same. That afterwards, on the ____ day of ____, 1896, the Southwest Missouri Light Company, a corporation, purchased said dam, obstructions, and all property pertaining to it, and maintained and operated the same as an obstruction up to and until January, 1908, when the said Southwest Missouri Light Company was reorganized and became the Consolidated Light, Power &amp Ice Company. That said transaction was a consolidation of said Southwest Missouri Light Company and an Ice Company which had theretofore been operated in connection with and at the plant of said Southwest Missouri Light Company. That this company had possession of and maintained said dam until October 22, 1909, when the company was reorganized under the name of the defendant, Empire District Electric Company. That the defendant took over the dam and all the property of said company, and assumed all the liabilities of its predecessor, and that defendant has since said October 22, 1909, maintained said dam and obstructions until the present time, and that all the property of the said Consolidated Light, Power & Ice Company was turned over to and became the property of the defendant, said Empire District Electric Company, well knowing that said dam was built in violation of law, and obstructed the flow of the stream, and caused its waters to damage plaintiff, and said defendant still unlawfully and wrongfully obstructs said stream, and causes the waters to overflow plaintiff's land, to his damage. That in the year 1896 the said Southwest Missouri Light Company increased the height of said dam about three feet, without any legal authority and against the objections and protests of plaintiff. That by reason of said increased height noxious vapors and offensive smells were created, causing malaria, and rendering plaintiff's dwelling an inconvenient, undesirable, and dangerous place to live. That the raising of the waters around plaintiff's land prevents it from draining as it otherwise would, and causes a large part of it to be unproductive. That the land is rich in minerals, but is of a gravelly formation, and the raising of the waters on said land, and their percolation through the soil, and consequent filling of any shaft or mine sunk thereon, prevent the mining of said land, and cause plaintiff to lose the rentals he otherwise would derive from same. That the dam and additions thereto cause the water to wash away plaintiff's fences and the soil from his land, and to cut off plaintiff from access to a road leading from his residence to the city of Joplin, plaintiff's market town, and to cause him to go a longer distance over a rougher road to reach said market town. That said dam and the additions thereto cause the backwater to stand in stagnant pools on plaintiff's land and adjacent land, thereby causing the vegetation to decay, and creating noxious vapors and gases, which pollute the atmosphere in the vicinity of plaintiff's dwelling; and that large quantities of leaves, trash, and animal and vegetable matter lodge and remain above said dam and near plaintiff's residence, which decompose and give off foul gases, polluting the atmosphere, and causing malaria and sickness. That by reason of the unlawful and wrongful acts of defendant his family has become sick and his dwelling house has been rendered an undesirable and dangerous place to live, his family is exposed to malaria, and the rental value of his land greatly lessened. That in April, 1899, plaintiff brought an action against the Southwest Missouri Light Company for temporary damages and for an injunction against the maintenance of the dam, and on the 3d day of August, 1900, recovered a judgment for $150 temporary damages which was doubled by the court, but an injunction to abate the dam was refused. On appeal, the St. Louis Court of Appeals, in January, 1905 (Scheurich v. Southwest Mo. Light Co., 109 Mo. App. 406, 84 S. W. 1003), reversed the finding of the lower court, but only ordered the dam lowered six inches. That in August, 1908, plaintiff commenced an action against the Consolidated Light, Power & Ice Company for damages for maintaining said dam, but before it could be tried that corporation reorganized under the name of the defendant company, and plaintiff was forced to dismiss his action in January, 1911. That at the time defendant acquired and took over said dam and property of the Consolidated Light, Power & Ice Company said last-named action was pending, and that defendant took said dam and the property of said corporation with full knowledge that said action was pending, and that the dam was being maintained in violation of law, and as an obstruction to said stream. Then follows a prayer for temporary damages as alleged in the petition in the sum of $5,000 from the 22d day of October, 1909, when defendant became the owner of the dam, and asks that the same may be doubled as required by the statute.

Defendant filed a demurrer, which was sustained. In sustaining the demurrer the trial court held that plaintiff could have recovered all his damages in the first suit, and hence could not maintain this action. The sufficiency of the petition is alone the matter for our determination.

I. Pleading Special Injuries. — The nuisance charged to have been maintained by defendant from October 22, 1909, to the date of the institution of this suit, or for a period of about fourteen months prior to the commencement of said action, while public in its nature and erected in violation of law, is charged to have been a private nuisance as well, which worked annoyance and injury to plaintiff. In a case of this character the right of action is not limited to the state on account of the violation of the law and the consequent injury to the public by reason thereof, but also extends to the person distressed or damaged by such nuisance, provided he has suffered injuries special in their nature and therefore different from those of which the general public may complain. Berry v....