Stewart v. City of Marshfield

Decision Date03 September 1968
Docket NumberNo. 8627,8627
Citation431 S.W.2d 819
PartiesCharles STEWART and Joan Stewart, Plaintiffs-Appellants, v. CITY OF MARSHFIELD, Missouri, a municipal corporation, Defendant-Respondent.
CourtMissouri Court of Appeals

White & Dickey, Clyde R. Allemann, Springfield, for plaintiffs-appellants.

Roy C. Miller, Haymes & Haymes, Ellsworth Haymes, Marshfield, for defendant-respondent.

STONE, Judge.

In this 'action for damages to land by reason of permanent nuisance' (as plaintiffs'-appellants' counsel characterize and classify it in the first sentence of their brief), plaintiffs Charles and Joan Stewart, husband and wife, obtained on June 23, 1966, a ten-member jury verdict for $2,500 upon which judgment then was entered. (All emphasis herein is ours.) In response to the timely after-trial motion of defendant City of Marshfield, Missouri, the trial court entered an order on August 29, 1966, sustaining that motion and granting a new trial to defendant on the specified ground that the court had erred in giving plaintiffs' measure of damages instruction 3 (MAI 4.01). From that order, plaintiffs appeal.

Plaintiffs reside some three miles north of Marshfield on a 93-acre dairy farm 'through the south portion' of which Niangua Creek runs 'antigoggling . . . a little more than a quarter of a mile.' Their residence is 'less than a quarter of a mile' from the creek. About one and one-half miles upstream from plaintiffs' farm, defendant has, since about August 15, 1961, operated two sewage lagoons into which it empties the load gathered in its municipal sewer system. The alleged nuisance, of which plaintiffs complain, is the claimed pollution of Niangua Creek by the outfall of and seepage from the sewage lagoons and the asserted invasion of plaintiffs' farm by noxious odors both from the sewage lagoons and from the polluted creek. In their third amended petition upon which they proceeded to trial, plaintiffs averred that the 'nuisance is permannent'; their case was presented and submitted on that theory in the trial court; and, as we have observed, their presentation here is on the same theory. Although defendant's position in the trial court, as pleaded in its answer and supported by its evidence, was that, 'if any nuisance has occurred, which defendant denies, such was temporary in nature,' it does not, on this appeal, dispute the submissibility of the case on plaintiffs' theory that it is an 'action for damages to land by reason of permanent nuisance.' With submissibility of the case on that theory not in issue, a detailed evidentiary review would be superfluous and we brietly note only the testimony bearing upon the issue of damages.

Evidence was offered from which the triers of the facts could have found that Niangua Creek, as it flowed through plaintiffs' farm, had been so polluted that its waters had become unfit for piscatorial habitation or bovine use; that the milk production of plaintiffs' dairy herd had been reduced and, after two cows had aborted and others had sicknesses 'suspected' by the attending veterinarian to have been caused by the polluted creek water, plaintiffs 'shut the cattle off from the creek' and watered them from a well at the barn; and that, after a drastic decrease in milk production of the herd, plaintiffs finally disposed of their cows at public sale on September 19, 1964, taking 'a loss on every cow.' And there was evidence that 'rotten' and 'sickening' odors frequently had invaded plaintiffs' residence and had interfered with their use and enjoyment thereof.

In harmony with plaintiffs' theory of damages by reason of a permanent nuisance, their brief avers that 'the extent of plaintiffs' damages was proved by the testimony of O. E. Blackwell, a real estate broker . . .,' who supplied opinion evidence as to the diminution in the reasonable market value of plaintiffs' 93-acre farm by reason of such nuisance. According to witness Blackwell, that farm 'was well worth $150 an acre' or $13,950 before defendant's sewage lagoons were constructed in 1961, but existence of the alleged nuisance (of which the witness disclaimed personal knowledge), 'would cut the value of the place half.' As of the time of trial, to wit, June 22, 1966, the reasonable market value of plaintiffs' farm, if it had not been damaged by the alleged nuisance, would have appreciated from $13,950 to $20,000; but existence of the nuisance 'would cut the value in half . . . the same proportion,' or to $10,000. Plaintiffs regard Blackwell's testimony as showing that the diminution in the reasonable market value of plaintiffs' farm by reason of the alleged nuisance would have been one-half of $13,950, or $6,975. Defendant 'interprets' the same testimony as meaning that such diminution in reasonable market value would have been $3,950, the difference between its pre-nuisance undamaged value of $13,950 and its trial-date damaged value of $10,000. We pass this conflict of counsel with the comment that our acceptance of one viewpoint or the other is neither necessary to nor determinative of the appeal.

Plaintiffs offered, and the trial court gave, instruction 6 (MAI 4.01) on the measure of damages as follows: 'If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you believe will fairly and justly compensate the plaintiffs for any damages you may believe they sustained as a direct result of the occurrence mentioned in the evidence. M.A.I. 4.01.' Defendant's contention has been and is that 'the instant case is one for damages for appropriation of property rights and the measure of damage instruction should have been the same as in an eminent domain or condemnation case,' namely, MAI 9.02.

What was said by our Supreme Court, en banc, in the landmark case of Riggs v. City of Springfield, 344 Mo. 420, 430, 126 S.W.2d 1144, 1148, 122 A.L.R. 1496, an action by riparian landowners for damage akin to that for which instant plaintiffs sue, is instructive here: "The city, by proper proceedings to that end, had the right by statute to secure the use of this stream for sewer purposes. 1 The city did not condemn, but appropriated the use. Such action, however, does not deprive the plaintiff of his right to compensation; nor does it affect the measure of damages, which, for such use by the city, whether by condemnation or appropriation, is the diminution in market value of the land damaged. 2 As this court said, in McReynolds v. Railroad, 110 Mo. (484) loc.cit. 488, 19 S.W. 824, 'no good reason, founded upon principle, can be assigned why the same rule should not be applied in both classes of cases' (condemnation and appropriation). The injury is the same; the damage is the same; and the compensation should be the same.' We hold, therefore, that under the pleadings and proof this case is controlled and must be determined by the law of eminent domain.' And in Stewart v. City of Springfield, 350 Mo. 234, 248, 165 S.W.2d 626, 630(9), the court, en banc, declared that '(w)e find it a common rule that 'the discharge of sewage upon the property of an individual, or its discharge into a stream, so as to pollute the water and lessen or destory the value of the stream itself, or of private property situated thereon, is generally considered compensable under eminent domain provisions', 29 C.J.S. Eminent Domain § 118.'

In Newman v. City of El Dorado Springs, Mo.App., 292 S.W.2d 314, and again in Hillhouse v. City of Aurora, Mo.App., 316 S.W.2d 883, we developed the doctrine that, having appropriate regard for scientific advances, it no longer should be said that a municipal sewer system (or a part thereof) inherently, necessarily and inevitably creates or constitutes a permanent nuisance. And our Supreme Court has so recognized in subsequent opinions citing Newman and Hillhouse with approval and affirming judgments for temporary or abatable nuisances arising out of the operation of municipal sewer systems. Flanigan v. City of Springfield, Mo., 360 S.W.2d 700; Chappell v. City of Springfield, Mo., 388 S.W.2d 886. However, no case has been cited or found which in any wise questions the doctrine that an action, such as that at bar, for damages to land by reason of a permanent nuisance 'is controlled and must be determined by the law of eminent domain.' Riggs, supra, 344 Mo. at 430, 126 S.W.2d at 1148. Rather, in continued recognition and application of that guiding principle, it was stated in Lewis v. City of Potosi, Mo.App., 317 S.W.2d 623, 629(4, 5), a suit for damage to land by operation of a sewage disposal plant, that '(a)n action by a landowner against a municipality for the maintenance of a permanent nuisance of the character here involved, which adversely affects the value of the plaintiff's land, is by the demand for permanent damage converted into an action in the nature of a condumnation proceeding. The pollution of the stream is equivalent to a taking or an appropriation of the plaintiff's property in part, and the law permits the acquisition of the easement in such cases by the payment of permanent damages, the judgment having that effect.' MAI 9.02 is the approved measure of damages instruction where only 'part of property (is) taken.' That is the situation in the case at bar, where defendant is alleged to have taken only property rights, i.e., the right to use Niangua Creek for sewer purposes and the right to invade plaintiffs' land with foul and noxious odors arising from such use of the creek and from operation of defendant's two sewage lagoons.

The Committee on Jury Instructions requested 'that the Supreme Court adopt the recommended rules requiring that when an approved instruction is applicable it must be given to the exclusion of any other instruction on the same subject.' MAI p. xxi. That request was honored (V.A.M.R. Rule 70.01(b)) and repeatedly thereafter our appellate courts have reminded the bench and bar that this is '(t)he basic theory concerning the use of MAI ....

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