Scott v. City of Marshall
| Decision Date | 11 February 1929 |
| Citation | 14 S.W.2d 694,223 Mo.App. 596 |
| Parties | JAMES M. SCOTT ET AL., RESPONDENTS, v. CITY OF MARSHALL, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Saline County.--Hon. Robert M Reynolds, Judge.
AFFIRMED.
Judgment affirmed.
W. H Meschede and R. D. Johnson for respondent.
Homer E. Rich and Harvey & Ballamy for appellant.
Trimble, P. J., absent.
This is an action in two counts, the first at law for damages, and the second in equity for a mandatory injunction. The allegations in both counts are identical, differing only in the character of the relief prayed, and are bottomed upon the alleged destruction by defendant of a natural drain by filling and causing it to be filled up, by the negligent and wrongful construction of an inadequate sewer therein and adjacent thereto, to the damage of plaintiff's property.
The facts of record are that plaintiffs are husband and wife and they were the owners of lot 6, block 2, Hudson's addition to the city of Marshall, Saline county, Missouri. Plaintiffs' property was located at the southeast corner of the block bounded on the north by Vest street, on the east by Jefferson avenue and on the west by Lafayette avenue. Their house was a one-story five-room building with a basement, facing east on Jefferson avenue. The basement consisted of two rooms, one of which had a concrete floor, while the floor of the other was of dirt. In the summer plaintiffs used the basement room with the concrete floor for cooking and eating space while in the winter the same was used as a garage, access thereto for garage purposes being afforded by a concrete driveway from Yerby street.
An alley ran north and south through the center of the block, touching the back of plaintiffs' property which had a depth of 150 feet. The sewer which is the basis of this action was built just west of the alley above mentioned, and on private property, the city having acquired an easement therefor, and was constructed pursuant to an ordinance duly passed by the council and signed by the mayor of defendant city on May 20, 1921. The plans and specifications for said sewer were drawn by an engineer employed for the purpose and were duly adopted by the mayor and the city council. It is in evidence that the said engineer calculated the flow of water which would be carried moderately down a storm sewer to be constructed, the area and nature of the territory to be drained being considered, and the speed at which the water would drain from said territory.
It appears that prior to the construction of the sewer there existed a ditch or natural watercourse beginning at Vest street at the north line of said block 2, and just west of the alley above mentioned, running south to and under a culvert under Yerby street, thence southeasterly to Jefferson avenue, thence south to and beyond the city limits. This ditch or natural watercourse is described as being three to four feet deep and six to eight feet wide at Vest street and six to eight feet deep and ten to fifteen feet wide at Yerby street, continuing at about the same dimensions to the city limits.
Under Yerby street there was a culvert described by plaintiffs and their witnesses as being eight feet square and by the engineer and contractor who planned and built the sewer as four by five feet. There was a manhole just south of Yerby street, the top of which was said to be about six inches above the street level and seven and four-tenths feet from top to bottom, the bottom thereof being the bottom of the sewer and former ditch. The sewer was of twenty-four-inch tile from Vest to Yerby streets, of twenty-seven-inch tile from Yerby to Jefferson and thirty-inch tile from there to the city limits. The line of the sewer was approximately along the line of the ditch, or watercourse, and nearly in a direct line from Vest to Yerby street, and connected with the culvert at Yerby street, south of which it was laid in a southeasterly direction to Jefferson avenue, and a little east of the old ditch, and thence south on Jefferson avenue. A tile ten inches in diameter was run up from the main sewer to a point a little above the surface of the ground a short distance north of Yerby street, the purpose of which was to serve as an intake for any surplus water accumulating there. Also four catch basins thirty inches long and eight and one-half inches high were constructed in Yerby street nearby and leading to the main sewer. There are also two similar catch basins at the corner of Jefferson street and Yerby, draining into a tile and going south on Jefferson away from plaintiff's property, constructed in the spring of 1926. A similar catch basin was at the corner of Lafayette and Yerby streets.
It appears of record that most of the sewer pipe was laid in the bottom of the watercourse, or ditch, and was covered with the dirt that had been taken from the excavation dug for the sewer. It further appears that after the sewer was constructed the plaintiffs and other lot owners in block 2, and also in the block south thereof, filled in their lots and the alley with dirt. In this work plaintiffs alone used two hundred sixty wagon loads of dirt on the back end of their lot, and plaintiffs testified that after the construction of the sewer, they placed in the alley some of the debris resulting from overflows.
The second amended petition on which the cause was tried alleged defendant wrongfully, negligently and wilfully destroyed said natural watercourse by filling and causing it to be filled up; that, in lieu of said watercourse, defendant negligently, carelessly and wrongfully constructed an underground sewer with laterals and intakes thereto, in that these were too small and inadequate to carry the surface water discharged therein, and that as a result:
"On August 16, 1926, and at other and divers numerous times during rains since the construction of said sewer, large and unusual volumes of water have been forced upon plaintiffs' property; that at said times plaintiffs had vegetables, shrubbery, flowers and a lawn on their premises, and said water was negligently backed and forced upon them and in the barns, sheds and buildings of plaintiffs and drowned a large number of chickens of plaintiffs; that said water was backed and forced into the basement under plaintiffs' residence, causing the foundation of said house to crack; that said water contained filth which was deposited upon plaintiffs' property causing offensive and obnoxious odors and conditions deleterious to the health and comfort of plaintiffs."
The petition further alleges:
". . . that defendant knew, or by the exercise of ordinary care could have known, that said sewer and intakes were insufficient to carry off the surface water, so negligently and wrongfully discharged therein without causing damage to plaintiffs' property; that defendant was notified of said condition but failed to remove and abate the same."
In the first count damage is sought in the sum of $ 1250. The second count prays injunctive relief as follows:
"Plaintiffs further state that they have no adequate remedy at law for the grievances aforesaid, and to avoid a multiplicity of suits the plaintiffs pray, in addition to the damages sought in the first count of this petition that the defendant be perpetually enjoined and restrained from further maintaining said inadequate and insufficient sewer, intakes and tile and the destruction of said natural drain by defendant's negligence and that said defendant be enjoined, ordered, and required to construct an adequate and sufficient sewer, intakes and sewer tile to carry said drainage water so that the same will not injure and damage plaintiffs' said premises as aforesaid and for such other and further relief of such premises as the court may deem proper."
Defendant demurred to both counts of the petition and after the court refused to sustain the demurrer defendant filed a motion to require plaintiffs to make their petition more definite and certain. This motion was overruled. Thereupon defendant filed answer admitting defendant's corporate entity and that it established the sewer district as alleged and caused the sewer in question to be constructed, but denied all other allegations of the petition. As affirmative defense the answer alleges that the said sewer was constructed in accordance with plans and specifications adopted by the council and mayor; that the same was a safe sewer and fully adapted to carry off all surface water, sewage and other matter properly within said sewer, or which according to rules of experience in the construction of sewers could reasonably be anticipated, and that said sewer was well adapted for the uses for which it was constructed; that on August 16, 1926, there was a great and unusual and extraordinary rainfall in the city of Marshall; that plaintiffs' premises are on some of the lowest ground in said sewer district and the water ran from the higher ground therein, onto plaintiffs' premises and other adjoining premises, in an unusual and extraordinary quantity; that never since the construction of said sewer had there been an overflow therefrom which injured plaintiffs' premises, except at times of great, unusual and extraordinary rainfall, which could not reasonably or properly be anticipated.
The reply was a general denial. Upon the issues thus made, the cause was tried to a jury resulting in a verdict for plaintiffs on the first count of the petition, in the sum of $ 600, and judgment was accordingly entered.
The second count of the petition was tried to the court and submitted upon the testimony adduced on the trial of the first count. The court made a finding of facts,...
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