Smith v. City of Sedalia

• Decision Date: 14 November 1899
• Citation: 152 Mo. 283,53 S.W. 907
• Court: Missouri Supreme Court
• Parties: SMITH v. CITY OF SEDALIA.

53 S.W. 907

152 Mo. 283

SMITH v. CITY OF SEDALIA.

Supreme Court of Missouri, Division No. 1.

November 14, 1899.

NEW TRIAL — GROUNDS — FAILURE TO SPECIFY — REVIEW — MUNICIPAL CORPORATIONS — SEWAGE — DISCHARGE — PRESCRIPTIVE RIGHT — INJURY TO PRIVATE PROPERTY — ADVERSE USER — INSTRUCTIONS — POLLUTION OF STREAM — PUBLIC NUISANCE.

1. Since Rev. St. 1889, § 2241, providing that every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted, does not render an order granting a new trial invalid for failure to observe the requirement, such failure is not reversible error.

2. User by which a city can acquire a prescriptive right to discharge sewage, to plaintiff's injury, into a natural stream flowing through his farm, must be adverse, and the term, "without objection or hindrance," used in an instruction relating to the acquisition of such prescriptive right, does not sufficiently express the adverse character, since it is not inconsistent with permission.

3. A city does not acquire a prescriptive right to discharge its sewage, to plaintiff's injury, into a natural stream flowing through his farm, because private sewers constructed with the city's permission, but which were no part of the city's sewers complained of, had for the period of 10 years, more or less, polluted the waters of said stream.

4. In an action against a city for polluting a stream which flowed through plaintiff's farm, thereby rendering the water unfit for use, and making the atmosphere injurious to the health of the occupants of the farm, an instruction that, though the jury believe the use of the stream was or is injurious to plaintiff's land, yet if they believe that, before plaintiff became owner of the land, such use had become permanent, and that there was then no intention of changing or abandoning it, so as to avoid further injury to the land, then such injury is to be regarded as permanent, and an injury to the land itself, and only to be compensated for once, which compensation was due to the one who owned the land before plaintiff, was erroneous, since the injury complained of cannot be measured in damages once for all.

5. In an action against a city for polluting a stream flowing through plaintiff's farm, an instruction that if the jury believe that the sewage discharged in the stream comes only from that part of the city which naturally drains into the stream, and that without the construction of sewers by defendant the natural drainage in said stream would constitute a nuisance to the extent proven to exist at the time of the suit, then plaintiff cannot recover, is erroneous, where there is no evidence that, if there had been no sewers, the natural drainage in the stream would have been a nuisance to the extent shown to exist at the time of the suit.

6. Pollution of a stream which flows through the plaintiff's land, whereby the water is rendered unfit for use, and the atmosphere is rendered injurious to the health of the occupants of the land, is not a public nuisance, though there are several landowners through whose possessions the polluted stream flows, and who suffer damage of the same character, but differing in degree.

7. The fact that sewers are necessary to a city, and that the statute directs that they shall follow as near as practicable the natural drainage of the country, does not authorize a city to empty its sewers into a natural stream flowing through private property, to the injury of the owner thereof.

Appeal from circuit court, Pettis county; George F. Longan, Judge.

Action by D. H. Smith against the city of Sedalia. From an order sustaining plaintiff's motion for a new trial, defendant appeals. Affirmed.

This is a suit for damages against the city of Sedalia for the alleged wrongful pollution of the water of a natural stream which flows through the plaintiff's farm. The petition alleges that the plaintiff owns a farm adjoining the city, through which flows Cedar creek, a stream affording an abundant supply of water for stock and other farm purposes, which, until the injury complained of, was fresh, pure, and wholesome, and greatly enhanced the value of the land and the enjoyment of its use and occupancy; but that the defendant city had constructed a system of sewers, which collected and carried the sewage of the city, and discharged it into the creek a short distance from where it enters plaintiff's land, and by that means so polluted the water of the stream, as it came down on plaintiff's land, that it was foul, unwholesome, and unfit for use by man or beast, and in its turn polluted the atmosphere, so that it was rendered offensive and injurious to the health of the occupants of the farm. Damages are sought for the depreciation of the value of the farm and of its rental value. The answer pleads the several acts of the general assembly under which the defendant was incorporated, and its charter from time to time amended, beginning with the act of 1861, down to the act of 1873, and the final organization as a city of the third class under the General Statutes, in 1886; that during the period of its existence it had so grown that at the date of the suit it was a city of 20,000 inhabitants; that Cedar creek was the natural drain for the water falling on a large part of the area of the city, and the sewers, as constructed, do not carry into Cedar creek sewage or water from any territory other than that which naturally drains into the creek; that for more than 20 years prior to the institution of this suit there were sewers constructed in the city by its authority and consent, such as are complained of in the petition, which gathered the sewage and surface water, and discharged the same into the creek, and down on and across the land now owned by plaintiff, and from time to time those sewers and sewer systems were enlarged and extended, and new sewers were constructed and added to the others, until the present system now in use was brought into existence. So defendant says it has, by long usage, acquired the right to use Cedar creek for the purpose of carrying its sewage, and the plaintiff's right is barred by the statute of limitations of 10 years, and that, if a right of action to any one ever accrued, it was to the person who owned the land when the city began to so use the creek, and not to the plaintiff. The answer denies that the water is polluted, or that plaintiff's property is injured. The petition concludes, not only with a prayer for judgment for damages, but also for an injunction to restrain defendant from further committing the alleged nuisance complained of. But the petition contains but one count, and that is shaped as an action at law for damages, and the cause was tried as such. An injunction issues out of a suit in equity, and, if plaintiff had really intended to ask equitable relief, he should have framed a count substantially as a bill in equity. We will treat the case as the parties and the trial court treated it; that is, as an action at law only.

The evidence on the part of plaintiff tended to prove: That he bought the land mentioned in the petition in 1889. That it is a highly-improved and valuable farm, of about 400 acres, to the north of and adjoining the city of Sedalia, a small part of the southern end being within the city limits. That Cedar creek runs through the farm for a distance, following its meanderings, of about a mile, affording a sufficient supply of water for a stock farm, to which use it was principally devoted, and for other farm purposes. The residence is about 200 yards from the creek. That in 1887 the city passed an ordinance establishing a general sewer system, under which the main sewer now complained of was constructed, which then emptied at the Missouri Pacific Railway track, about a mile south of its present terminus, and that was the situation when the plaintiff bought, in 1889. At that time the water was clear, and there was no odor from the creek, but it could be detected that some foreign element was in the water. In 1888 the main sewer was enlarged, and in 1891 extended in the direction of plaintiff's farm, and again in 1893, until it reached the main channel of Cedar creek about 200 yards from plaintiff's land. That beginning in 1889, and continuing to 1895, the city constructed district sewers, 11 in number, emptying into the main sewer above mentioned. That until 1891, when the first extension of the main sewer in the direction of plaintiff's farm was made, much of the offensive character of the sewage was dissipated in the open air before it reached the plaintiff's land, although even then an examination of the water in the creek showed contamination; but that after the extension of 1891, and the second extension of 1893, with the addition of the several district sewers above mentioned, the water became entirely unfit for use, and dangerous, not only to the cattle, but also the health and comfort of the tenants of the farm. That in 1893 plaintiff made oral complaint, and in 1894 written complaint, to the city officers, of the same, but without avail. There was also testimony for the plaintiff tending to show the depreciation of the rentals and value of the land within the periods complained of. This suit was begun in 1895.

It was admitted that Cedar creek was the natural drain for all that district in the city which now drains and empties its sewage into it through the sewerage complained of. On the part of the defendant, the testimony tended to prove that as early as 1873 the city built a sewer for surface drainage which emptied about a mile from plaintiff's land, but the output of which, following natural courses, reached Cedar creek; and the city, in 1874, authorized private persons to build private sewers for surface drainage, emptying into that sewer. In 1877 the city authorized certain persons to build a sewer for drainage from Lamine street to Moniteau avenue, with which persons so...