State v. City of Sedalia

• Citation: 241 S.W. 656
• Decision Date: 22 May 1922
• Docket Number: No. 14182.,14182.
• Parties: STATE ex rel. LAMM, Pros. Atty., v. CITY OF SEDALIA et al.
• Court: Court of Appeal of Missouri (US)

241 S.W. 656

STATE ex rel. LAMM, Pros. Atty., v. CITY OF SEDALIA et al.

No. 14182.

Kansas City Court of Appeals. Missouri.

May 22, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Suit by the State of Missouri, at the relation of Don S. Lamm, Prosecuting Attorney, against the City of Sedalia and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Montgomery & Rucker, of Sedalia, for appellant.

Paul Barnett, of Sedalia, for respondents.

TRIMBLE, P. J.

This is an Injunction suit brought by the state at the relation of the prosecuting attorney of Pettis county, Mo., against the city of Sedalia, its mayor, street commissioner, and its employed city scavenger, to restrain them from creating a public nuisance in disposing of dead animals found about the city. A demurrer to the petition was sustained by the trial court, and plaintiff has appealed.

In addition to alleging that relator was prosecuting attorney of Pettis county; that the defendant city of Sedalia was a city of the third class; that Hatton was mayor, Carson was street commissioner, and Cohen had the contract for the removal of dead animals found in the city—the petition set forth the following:

That in November, 1909, the city acquired by purchase or condemnation a tract of land in said city (describing it) 415 feet long and 341 feet wide, for the purpose of erecting thereon a septic tank for the purification of the sewage brought from the public sewer system in the eastern part of the city, the price therefor being paid by taxes levied on the property in said district; that said tract in said city is in the midst of a well-settled community of people who have homes and own property in that vicinity, and the lands adjoining said tract are intersected by streets and alleys and public highways much used and traveled by the inhabitants of said city and especially by the people residing in that immediate vicinity.

That the defendant city, acting by and through its said mayor and street commissioner, had employed the defendant Cohen—

"to remove all of the dead animals, horses, cows, dogs, cats, chickens, etc., which died in the said city or were found dead on its streets and alleys and other public places in said city and to haul the same to the real estate aforesaid, upon which said septic tank was located and to inter the same, burying them deep enough in the soil as to create no nuisance, and that the said defendant Cohen and his servants, agents and employs have been and are now engaged in carrying out their contract with the said city and under the direction of the codefendants, the said mayor and street commissioner, and in obedience to their orders and instructions and during the period of time aforesaid they have been hauling from within the limits of said city of Sedalia and depositing upon said tract of land all of the carcasses and bodies of all of the animals aforesaid and undertaking to bury the same, amounting from 10 to 25 animals a day. But the plaintiff alleges that the defendants in and about the matters aforesaid have been guilty of such gross negligence and want of care as that said animals when hauled to the place of deposit as aforesaid have been permitted to lie on the ground some times two or three days at a time., That many of the animals would be skinned, and after the skins were removed from the bodies they would be allowed to remain on the ground unburied for long periods of time. That dogs from the city and the neighborhood visited the place and fed upon the dead bodies of the animals, and that blood and obnoxious matters came from said bodies scattered about over the ground, and ran over and upon the soil, and, sinking into the soil and percolating through the same, found its way into the soil to the lands lying south of and lower than the place where they were deposited. That said blood and other matters and impurities therefrom found their way into numerous underground streams along and below said lands, and found its outlet in springs and openings and streams, thus rendering unfit for use of man or beast the waters.

"That the dead bodies of the animals spread over the ground, and the offal, blood, and other matters coming from them created a noisome stench and odor, which polluted the atmosphere for a mile or more around the place where they were deposited. Not only was the water rendered dangerous and unsafe for domestic use in that neighborhood, but it also carried with it an offensive smell and odor.

"That the action of the defendants resulted in a grievous nuisance, and that the noisome and offensive smells and odors so polluted the atmosphere in the neighborhood as to render impossible the reasonable and comfortable enjoyment of the property of the people residing in that vicinity and those traveling over said highways and streets. That said nuisance became and is a menace to the health, happiness, and enjoyment of the community, and that it has and is materially decreasing the value of the land in that vicinity.

"Plaintiff further charges that, not only the said animals were allowed to remain on the open ground as hereinbefore alleged for an unreasonable length of time before they are buried, but when they are buried, they are put in shallow trenches, and not sufficiently buried to prevent the escape of odors, which pollute the atmosphere as aforesaid.

"The plaintiff further alleges that this unwholesome and disagreeable pollution of the atmosphere is injurious and uncomfortable to those traveling upon the adjacent highway and to those cultivating the lands and fields in the neighborhood thereof, and is producing, and will continue to produce as long as continued, not only an uncomfortable and disagreeable interference, but will be unhealthy and will be followed by disease. That most of said animals have died of some disease, and carry with them hog cholera and other infectious diseases, which will greatly injure the community and the owners of other stock therein.

"Wherefore the plaintiff prays judgment in this action against the defendants, and that they and each of them, and their servants, agents, and employés, be enjoined and restrained from depositing any dead animals upon the real estate aforesaid and doing...