Smith v. City of Sedalia

• Citation: 149 S.W. 597,244 Mo. 107
• Parties: D. H. SMITH, Appellant, v. CITY OF SEDALIA, Appellant
• Decision Date: 20 June 1912
• Court: United States State Supreme Court of Missouri

149 S.W. 597

244 Mo. 107

D. H. SMITH, Appellant, v. CITY OF SEDALIA, Appellant

Supreme Court of Missouri

June 20, 1912

Appeal from Moniteau Circuit Court. -- Hon. W. H. Martin, Judge.

Affirmed (in part).

Charles E. Yeater and Mortgomery & Montgomery for plaintiff-appellant.

(1) The first point of the city that the nuisance complained of is a permanent injury and that all damages must in consequence thereof be recovered in one action has been heretofore adjudicated and put at rest in Smith v. City, 152 Mo. 300; and further the statement to the effect that the sewer was completed in October, 1893, is erroneous, as it appears from the record that districts 10, 11, 15 and 16 were added to the system from May 28, 1894, to July 18, 1898 and the plaintiff, having sued for loss of rents with a count in equity for the abatement of the nuisance by injunction in the first suit which was still pending, and having again in this second suit prayed the abatement of the nuisance, could not recover permanent damages in this second suit; nor can the plaintiff without his consent by election be forced to have permanent damages assessed in this action which would thereby deprive him of his right in equity for an abatement of the nuisance, and of his constitutional right to have his damages assessed and paid before his rights in his property are divested. Smith v. City, 152 Mo. 300; Sec. 21 art. 2, Constitution; 4 Sutherland on Damages (3 Ed.), sec 1046; Consumers Co. v. Pinkert, 92 S.W. 957; Morgan v. Danbury, 67 Conn. 484; Uline v. Railroad, 101 N.Y. 122; Vogt v. Grinnell, 98 N.W. 782; Carmichael v. Texarkana, 94 F. 564. (2) The second point made by the city to the effect that error was committed in excluding evidence tending to show that the surface drainage washed on plaintiff's land before any sewer was built, and was more injurious than the condition after its construction, was practically made res adjudicata in this case in Smith v. Sedalia, 182 Mo. 9, and the further contention made in this point by the city, that the burden was on the plaintiff to show that he was injured by the defendant's acts, was ruled to the contrary in Smith v. Sedalia, 182 Mo. 12, where this court says: "If the facts averred do constitute a nuisance, it is sufficient for the plaintiff to prove them, and it is not necessary that he should also prove that he has been especially injured by such nuisance." Smith v. McConathy, 11 Mo. 522; Jones v. Hannovan, 55 Mo. 468; Paddock v. Somes, 102 Mo. 237; Bungenstock v. Drainage Dist., 163 Mo. 222; Mize v. Glenn, 38 Mo.App. 104. (3) The plaintiff was entitled to a peremptory instruction to the jury, that a finding must be in his favor, in as much as the defendant, by its answer admitted that it had collected sewage in a sewer system and had cast it on the plaintiff's land, which admitted facts constitute a nuisance. Smith v. Sedalia, 182 Mo. 12. (4) The fourth contention for the city, that the jury should not have been instructed to give damages for the depreciation in rental value and injury to the comfortable use and occupation, is precluded by the specific ruling of this court on this particular instruction in Smith v. Sedalia, 182 Mo. 11 and 12, which particularly directs such a recovery of damages in this exact language. Furthermore, the plaintiff's testimony showed not only a depreciation of one-half of the rental value of the 200 acres of woodland pasture, constituting the south half of the farm, but also showed that the residence on the farm, lying north from the running sewage, was made disagreeable by the foul smells blown therefrom. Smith v. Sedalia, 182 Mo. 10. (5) The jury should not have been instructed, as asked by the defendant, and as contended for in its fifth point of its brief, that unless the waters of Cedar Creek running through plaintiff's lands were polluted by the construction of defendant's sewer system to a greater degree than they would have been from the natural drainage running into said creek, if the sewer had not been built, then the finding should be for the defendant. The defendant's answer and the undisputed facts, show that the defendant had collected sewage and had thrown it in a body on plaintiff's land and that constituted a nuisance, and, irrespective of whether damages ensued, or even if benefits thereby resulted, it would have been error to have instructed the jury to find, under circumstances as set forth above, for the defendant. Smith v. Sedalia, 182 Mo. 12; Jones v. Hannovan, 55 Mo. 468. (6) A case involving this same sewer between the same parties has twice been before this court and is reported in 152 Mo. 283, and 182 Mo. 1. Plaintiff's remedy is in equity for the abatement of the nuisance. Its jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of actions and the protection of plaintiff's right of property. No other court can afford a full and complete remedy in such cases. It has been universally exercised in similar cases. Paddock v. Somes, 102 Mo. 240; Welton v. Martin, 7 Mo. 310; Smith v. McConathy, 11 Mo. 522; Baker v. McDonald, 178 Mo. 472; Realty Co. v. Deere, 208 Mo. 83; Mining Co. v. Joplin, 124 Mo. 135; Samons v. Gloversville, 175 N.Y. 346; Ice Co. v. Philadelphia, 156 Pa. 54; Pettigrew v. Evansville, 25 Wis. 223; Butler v. Thomasville, 74 Ga. 570; O'Brien v. St. Paul, 18 Minn. 176; Atty.-Gen. v. Birmingham, 4 K. & J. 528; City v. Bond, 96 Ind. 242; Ashley v. Port Huron, 35 Mich. 301; Voight v. Grinnell, 98 N.W. 782; Madison v. Sulphur Co., 83 S.W. 658; Barnett v. Cemetery, 159 Ill. 390; Truett v. Assn., 50 L.R.A. 564; Foncannon v. Kirksville, 88 Mo.App. 279; Edmondson v. Moberly, 98 Mo. 526; Safe Dep. Co. v. Kennett, 101 Mo.App. 394; Gould on Waters, sec. 546; Bank v. Kercheval, 65 Mo. 688; Gould v. Rochester, 105 N.Y. 46; Chapman v. Rochester, 110 N.Y. 276; Carmichael v. Texarkana, 94 F. 565; Good v. Altoona, 162 Pa. 493; Beach v. Elmira, 22 Hun 163; Merton v. Chester, 2 Del. Co. 459; Morgan v. Danbury, 67 Conn. 484; Valparaiso v. Moffett, 12 Ind.App. 250; Morse v. Worcester, 139 Mass. 389; Nolin v. New Brittain, 69 Conn. 668; Hooker v. Rochester, 37 Hun 186; Cator v. Board, 5 Best S. 115; Wharf Co. v. Portland, 67 Me. 46; Mansfield v. Hunt, 19 Ohio C. C. 488; Owens v. Lancaster, 182 Pa. 257; Jacksonville v. Doan, 145 Ill. 28; Evansville v. Decker, 84 Ind. 325; Van Pelt v. Davenport, 42 Ia. 308; Perry v. Worcester, 6 Gray, 544; Draper v. Mackey, 35 Ark. 497; Woodyear v. Schaffer, 57 Md. 12; Holsman v. Bleaching Co., 14 N.J.Eq. 347; Mayor v. Mfg. Co., 59 Md. 96. (7) It is no objection to the exercise of injunctive relief that the city has adopted the natural course of drainage, has spent large sums in constructing its system of sewers and it has no other outlet for the sewage. Smith v. Sedalia, 152 Mo. 302; Beach v. Elmyra, 22 Hun 163; Byrnes v. Cohoes, 12 N.Y. S. C. 602; Hooker v. Rochester, 37 Hun 184; Peterson v. Santa Rosa, 119 Cal. 347; Platt v. Waterbury, 77 Conn. 550; Safe Dep. Co. v. Kennett, 101 Mo.App. 394; Gould on Waters, sec. 546; Addison on Torts (2 Ed.), sec. 1085; Wood on Nuisance (3 Ed.), secs. 427-434-782; Dwight v. Hayes, 150 Ill. 273; Robb v. La Grange, 158 Ill. 28; High on Injunction (2 Ed.), sec. 810. The city should proceed in accordance with the requirement of sec. 21, art. 2, of the Bill of Rights of the Constitution and the statutes and condemn the right of way for the sewage by paying plaintiff such damages as should be awarded him. The law is not disposed to help one who will not help himself and the remedy so easily at hand and convenient is a perfect answer to all the complaints of the city in this respect. Mining Co. v. Joplin, 124 Mo. 135; Van De Vere v. Kansas City, 107 Mo. 84; Uline v. Railroad, 101 N.Y. 114. (8) No acquiescence or consent of the plaintiff is shown. His simple silence under the circumstances disclosed by the evidence created no estoppel. By no act or conduct of his was the city led into any course of proceeding. They continued to construct additional sewer system after plaintiff had commenced his action to abate the nuisance. They did it under claim of right. Smith v. Sedalia, 152 Mo. 283; Chapman v. Rochester, 110 N.Y. 226; Galloway v. Railroad, 128 N.Y. 153; Maupin v. Railroad, 171 Mo. 195; Lead Co. v. White, 106 Mo.App. 232; Thomas v. Cannery Co., 68 Mo.App. 359; Spurlock v. Sproule, 72 Mo. 510; Bales v. Perry, 51 Mo. 449. Any acquiescence could at most create only a license revocable at pleasure. Dwight v. Hayes, 150 Ill. 281; Pitzman v. Boyce, 111 Mo. 387; Lead Co. v. White, 106 Mo.App. 222; Scheurich v. Light Co., 109 Mo.App. 406; Muellor v. Fruen, 36 Minn. 273; Leonard v. Spencer, 108 N.Y. 338; Tiedeman on Real Property, sec. 653. (9) The pendency of the former action for damages for a different period of time is not a cause for abating present action. Such action was not vexatious or unnecessary. It was necessary to prevent the bar of the Statute of Limitation. The causes of action are not identical. Rodney v. Gibbs, 184 Mo. 10; Warder v. Henry, 117 Mo. 541; State ex rel. v. Dougherty, 45 Mo. 294. (10) The interest of the public and those connecting with the city's sewer system, will not be affected by a proper decree of injunction which can preserve the status for such time as may be necessary for the city to proceed with diligence and without delay to a condemnation of the right to conduct its sewage over plaintiff's land instead of wilfully persisting in its unlawful act as an intentional tort-feasor to the plaintiff's damage. Gray v. Patterson, 48 L.R.A. 722; Mills v. Cambridge, 117 Mass. 401.

W. W. Blair, C. C. Kelly, W. M. Williams, W. G. Lynch, M. A. McGruder and E. W. Couey for defendant-appellant.

(1) The sewer system complained of was...