Skinner v. City of Slater

• Decision Date: 04 December 1911
• Citation: 141 S.W. 733,159 Mo. App. 589
• Parties: SKINNER v. CITY OF SLATER.
• Court: Missouri Court of Appeals

141 S.W. 733

159 Mo. App. 589

SKINNER v. CITY OF SLATER.

Kansas City Court of Appeals. Missouri.

December 4, 1911.

1. NUISANCE (§ 11) — ACQUISITION OF PRESCRIPTIVE RIGHT.

The right to maintain a private nuisance can be acquired by adverse and exclusive enjoyment for the time prescribed by the statute of limitations for the acquisition of title to land.

2. NUISANCE (§ 15) — ACQUISITION OF PRESCRIPTIVE RIGHT.

Where a town street commissioner without authority constructed a tile drain, which was later used as a sewer, the running of the statute of limitations in its favor, so as to prohibit its abatement as a nuisance, starts only from the time the town exercised jurisdiction over it as such a sewer.

3. NUISANCE (§ 15)—ACQUISITION OF PRESCRIPTIVE RIGHT.

The use of a tile drain by a town for a use not complained of in an action to declare it a nuisance is not sufficient to start the running of the statute of limitations in favor of a prescriptive right to the use complained of.

4. NUISANCE (§ 15)—ACQUISITION OF PRESCRIPTIVE RIGHT.

And though it be shown that the town permitted private persons to use it as a sewer, it is no such dedication of it as such as will start the running of the statute in favor of a prescriptive right to such use.

5. PARTIES (§ 42)—NEW PARTIES—INTERVENTION —TIME FOR APPLICATION.

An application to intervene as a party, on the ground that petitioner's rights would be incidentally affected, was properly denied, where not made until after the cause had been submitted for judgment.

6. NUISANCE (§ 30)—ABATEMENT—PARTIES— PERSONS WHO MAY JOIN.

In a suit to enjoin a city from the maintenance of a sewer, on the ground that it was a nuisance, a private person, who was using the sewer, is not a necessary party to the proceeding.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by E. F. Skinner against the City of Slater. From a judgment for plaintiff, defendant appeals. Affirmed.

Com. P. Storts and Alf. F. Rector, for appellant. Dan V. Herider and D. D. Duggins, for respondent.

BROADDUS, P. J.

This is a proceeding to enjoin the city from the maintenance of a nuisance. The facts are that the defendant is a city of the fourth class, and was such during the times of the alleged complaint; that plaintiff was at the time of the trial, and since 1902, the owner of a tract of land lying north of the city; that a part of said land, a strip about 400 feet wide and a quarter of a mile long, lies within the corporate limits, and that the balance adjoins the city; that the lands are valuable for platting and for selling as lots; that in 1891 the street commissioner of defendant, without authority, constructed under Main street a tile drain; that when first constructed its discharging end was near the lands now owned by plaintiff; that about 1893 this discharge was changed to its present location, but by whom it does not appear; that the drain was used by defendant to carry waste water from its light plant; that in about 1904 the street was paved, and manholes were constructed to carry surface water into the drain; that the drain was constructed of ordinary drain tile, the joints not being cemented; that since 1891 defendant has continued to use the drain...