Smith v. City of Sedalia

• Decision Date: 25 May 1904
• Citation: 81 S.W. 165,182 Mo. 1
• Parties: SMITH v. CITY OF SEDALIA.
• Court: Missouri Supreme Court

81 S.W. 165

182 Mo. 1

SMITH v. CITY OF SEDALIA.

Supreme Court of Missouri, Division No. 1.

May 25, 1904.

WATER COURSES — POLLUTION — SEWAGE — NUISANCE — DAMAGES — ELEMENTS — NOMINAL DAMAGES — NEW TRIAL.

1. Where plaintiff brought suit for the pollution of a water course after the extension of a city sewer in 1891, and certain testimony offered by defendant tending to show that slaughter houses, soap factories, etc., had been operated along the creek many years before, and had emptied therein, being objected to, defendant's attorney assured the court that he would introduce evidence that such condition existed within the period covered by the action, whereupon the objection was overruled, but the evidence promised was not offered, and the court refused to charge that the jury should disregard the evidence relating to such slaughter houses, etc., an order granting plaintiff a new trial after verdict in favor of defendant was proper.

2. Where a city collected sewage and discharged it in a volume into a creek to the injury of a lower riparian proprietor, he is entitled to recover compensation for the depreciation in the market value of his land, caused thereby, for destruction of its comfortable use and occupation, and for the actual loss of rents, provided each of such elements of damage are proved.

3. Where a city collected and discharged sewage into a water course so as to constitute a nuisance, a lower riparian proprietor was not required to prove special damages in an action therefor, in order to entitle him to recover at least nominal damages.

Appeal from Circuit Court, Johnson County; W. L. Jarrott, Judge.

Action by D. H. Smith against the city of Sedalia. From an order granting plaintiff's motion for a new trial after verdict in favor of defendant, the latter appeals. Affirmed.

A. L. Shortridge and C. C. Kelly, for appellant. Sangree & Lamm and Montgomery & Montgomery, for respondent.

VALLIANT, J.

Plaintiff sues the defendant city for damages for having constructed and for maintaining a system of sewers through which the sewage of the city is emptied into a creek that flows through the plaintiff's farm, polluting the water of the creek and infecting the air, thereby rendering the plaintiff's farm less valuable and less enjoyable as a place of residence or occupation. The answer of the defendant pleads a prescriptive right to use the creek as an outlet for its sewers, and denies that the sewage pollutes the water, or in any wise injures the plaintiff's property. This is the second appeal in the case. For a fuller statement of it we refer to the opinion of the court on the former appeal, a reading of which will render further statement now unnecessary. Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711. On the former appeal we affirmed the ruling of the trial court sustaining the plaintiff's motion for a new trial, and remanded the cause to be retried. On its return to the circuit court of Pettis county a change of venue was ordered on the motion of the plaintiff, and the cause was sent to the circuit court of Johnson county, where it was again tried, with the same result as in the former trial; that is, a verdict for the defendant, and a motion for a new trial by the plaintiff, which the court sustained. From that ruling the defendant has again appealed.

The evidence for the plaintiff bearing on the points now to be considered tended to show as follows: The plaintiff purchased the farm in question, containing about 400 acres, in 1889. Cedar creek meanders through it, and was, until polluted by the sewage complained of, a valuable feature of it. The farm lies just north of the city, a small part being within the city limits. In 1887, the city, by ordinance, provided for the construction of a system of public sewers, and in that year the main public sewer was constructed extending northward towards the land now owned by plaintiff to a point 3,600 feet from Cedar creek and about 4,000 or 5,000 feet from the plaintiff's land. The sewage discharged at that point passed through open natural drains, exposed to the air, on to Cedar creek; but by the time it reached the creek its offensive character was diminished, so that it was not particularly observable on the plaintiff's premises. But at the point where the sewage was then discharged it became so offensive that the city in 1891, on complaint, of the people in that vicinity, extended the sewer on to Cedar creek. Then the people in the vicinity of the point to which it was extended and at which the sewer emptied into the creek made complaint, and the city again extended it on down the creek about 1,500 feet to a point within 700 feet of the plaintiff's land. The creek carrying this sewage meanders through the plaintiff's land 5,550 feet. It is the sewage of a city of 20,000 people. The water in the creek was, after the extension in 1891, rendered unwholesome, and the air became obnoxious.

The testimony on the part of the defendant tended to show that the water was not polluted by the sewage, but, on the contrary, it was improved, for that, whereas before the sewage was turned into the creek it was not a constantly running stream, but, except in seasons of freshets, the water stood in pools, which were the receptacles, through natural surface drainage, of the filth of a large area of the city, and which became stagnant and offensive, and when the rains came the offensive accumulations in these pools were washed down on plaintiff's land, but since the sewers have been constructed and caused to empty into the creek there is a constant current in the creek, and the water thereof is fresh and wholesome. The defendant introduced evidence, over the plaintiff's objection, tending to show that slaughter houses and soap factories had been built and operated over and along this creek, casting their filth into it to such a degree that it became intolerable. The erection and operation of these offensive establishments began in 1869, and extended to 1882 or 1885. The plaintiff objected to this evidence on the ground that it told of conditions that had existed but had ceased to exist years before the plaintiff bought the land, and years before the sewers complained of were constructed. The court was about to sustain the objection, when counsel for the defendant interposed, and said that they would show that that condition existed down to the time covered in this suit. The following colloquy between the court and counsel for defendant occurred: "You claim that you have testimony that these same slaughter houses polluted this stream...