Stewart v. City of Springfield

• Decision Date: 08 September 1942
• Docket Number: 37234,37242
• Citation: 165 S.W.2d 626,350 Mo. 234
• Parties: J. T. Stewart and Josie Stewart, Appellants, v. City of Springfield, Missouri, a Municipal Corporation. Fred S. Chappell and Edna C. Chappell, Appellants, v. City of Springfield, Missouri, a Municipal Corporation
• Court: Missouri Supreme Court

165 S.W.2d 626

350 Mo. 234

J. T. Stewart and Josie Stewart, Appellants, v. City of Springfield, Missouri, a Municipal Corporation. Fred S. Chappell and Edna C. Chappell, Appellants, v. City of Springfield, Missouri, a Municipal Corporation

Nos. 37234, 37242

Supreme Court of Missouri

September 8, 1942

Rehearing Denied November 12, 1942.

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Affirmed.

A C. Hayward, H. T. Lincoln and Frank B. Williams for appellants Joe N. Brown of counsel.

(1) Defendant's demurrer to plaintiffs' amended petition does not conform to the statute. It is a speaking demurrer and should be wholly disregarded except, possibly, that part of it which attempts to raise the Statute of Limitations as a bar to plaintiffs' action. (a) Our code expressly defines the purview of a demurrer as being limited to what appears on the face of the petition. The purpose of the statute is to direct the trial court's attention to the precise ground of objection relied on. Secs. 770, 771, R. S. 1929; Hanson v. Neale, 215 Mo. 256, 114 S.W. 1073; Pacific Lime & Gypsum Co. v. Mo. Bridge & Iron Co., 286 Mo. l. c. 117, 226 S.W. 853; Thompson v. Farmers Exchange Bank, 62 S.W.2d 803, 333 Mo. 437; St. Louis Poster Adv. Co. v. St. Louis, 195 S.W. 717. (b) Upon demurrer the petition must, under our code, be liberally construed in arriving at its meaning. The court takes as true facts well pleaded and such inferences as necessarily and logically flow therefrom. The court cannot look beyond the allegations of the petition or consider extrinsic facts or assume facts not alleged in the petition. Thompson v Farmers Exchange Bank, 62 S.W.2d 803, 333 Mo. 437; City of Springfield v. Plummer, 89 Mo.App. 515; Aldridge v. Ryan, 260 S.W. 536; Lackawana Coal & Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35. (c) Defendant's demurrer, because it pleads extraneous matters, matters de hors the petition, and matters of defense, is a speaking demurrer, not recognized in our procedure. City of Springfield v. Plummer, 89 Mo.App. 515; Pacific Lime & Gypsum Co. v. Mo. Bridge & Iron Co., supra; Thompson v. Farmers Exchange Bank, supra. (d) It is not incumbent on plaintiffs to allege facts from which it conclusively appears that their cause of action is not barred. Maddox v. Duncan, 62 Mo.App. 474. (e) The Statute of Limitations is an affirmative defense, both at common law and under the codes; it must be raised by plea or answer, except where the statute confers title, in which case it becomes available under the general issue. Maddox v Duncan, 62 Mo.App. 474; State ex rel. Matney v. Spencer, 79 Mo. 313. (f) The Statute of Limitations cannot be invoked by demurrer unless it distinctly appears on the face of the petition that the action is necessarily barred, as in cases in which the statute creates a bar without exception. Maddox v. Duncan, 62 Mo.App. 474. (g) If the defendant seeks by his demurrer to take advantage of the Statute of Limitations he must plead the very provision upon which he depends. Nisley v. Leathy, 256 Mo. 341; Newkirk v. City of Tipton, 136 S.W.2d 147. (h) This is not an action for the recovery of lands, tenements or hereditaments, or the possession thereof, consequently the ten-year Statute of Limitations does not apply. Sec. 850, R. S. 1929. (i) The five-year Statute of Limitations does not apply because plaintiffs' amended petition does not state facts which show that their cause of action is based upon a liability created by statute, or by the constitutional provision against taking or damaging private property without compensation. Sec. 862, R. S. 1929. (j) Plaintiffs' cause of action arose when the pollution of Wilson Creek became manifest on plaintiffs' land. Not until then was the damage resulting therefrom sustained or capable of ascertainment, and the statute did not begin to run until then. Sec. 860, R. S. 1929; Newkirk v. City of Tipton, 136 S.W.2d 147; Kent v. City of Trenton, 48 S.W.2d 571. (k) The Riggs case does not rule this case on the question of limitations because of the allegations (a) that the pollution was not manifest in the waters of the creek on plaintiffs' land until 1911; (b) that in 1912 the city agreed to abate the nuisance by septic tanks, and did so abate it for a time, in keeping with a judgment rendered in an action brought by plaintiffs; (c) that the pollution, at all times, was a temporary abatable nuisance and that successive actions were brought by plaintiffs and judgments rendered in their favor as for a temporary, abatable nuisance. Riggs v. City of Springfield, 126 S.W.2d 1144. (2) The case at bar is not ruled by Smith v. Sedalia, 244 Mo. 107; Joplin Consol. Min. Co. v. Joplin, 124 Mo. 129, or Riggs v. Springfield, 126 S.W.2d 1144. (a) Cities of the third class, in 1892, did not have, by delegation from the Legislature, the right to condemn the use of natural watercourses of drainage for public drainage or sewer purposes. Art. 4, Chap. 30, R. S. 1889. (b) Notwithstanding the provision in the act that public sewers shall be established along the principal courses of drainage, the only delegation of eminent domain in the act with respect to sewers is that the council may condemn all necessary land for sewer carriage and outfall, and may condemn private property for use, occupation or possession in the construction and repair of public and district and private sewers. Secs. 1520, 1524, 1541, R. S. 1889. (c) Eminent domain to condemn the use of natural watercourses of drainage for public drainage and sewer purposes was not made available to cities of the third class until the Legislature passed the Local Option Act of 1895. This act, for the first time, expressly delegated to cities of the third class power to accept and acquire by gift, devise, purchase or by condemnation proceedings, both within and beyond the territorial boundaries of the city, the use of natural watercourses of drainage for public drainage and sewer purposes but only upon a vote by ballot of two-thirds of the qualified voters voting at an election held for that purpose in favor of adopting the provisions of the Act. Laws 1895, sec. 1, l. c. p. 58. (d) The Local Option Act of 1895, as a prerequisite to acquiring the right to use a natural course of drainage or watercourse, or any part thereof, as a public drain for sewer route, either within or beyond the territorial boundaries of the city, required the city by ordinance to declare the same to be a public drain and sewer route, describing the part or parts thereof to be used sufficiently for identification, and provided that thereupon the city might proceed to acquire the right to use the same by gift, purchase or condemnation proceedings. Laws 1895, p. 58, sec. 3, l. c. p. 59. (e) This act expressly provides that nothing contained in it shall be construed as repealing Secs. 97, 98 and 99, Laws of 1893, l. c. pages 86-87. Secs. 1520, 1524, 1544, R. S. 1889; Laws 1895, sec. 18, l. c. p. 64. (f) Under the Local Option Act of 1895, the city could institute condemnation proceedings in the circuit court only in case it could not agree with the riparian owners upon the proper compensation to be paid for the use of the natural watercourse of drainage for public drain or sewer route, and was required to file such proceeding in the county where such natural watercourse of drainage lay by petition setting forth a general description of the same. Laws 1895, p. 58, sec. 6, l. c. p. 60. (g) If the act is silent on the subject, as here, and powers given by it can be exercised without resort to condemnation, as here, it is presumed that the Legislature intended that the necessary property should be acquired by contract. Lewis on Eminent Domain (3d Ed.), sec. 371, citing Chamberlain v. Elizabethport, 47 N.J.Eq. 43; Leeds v. Richmond, 102 Ind. 372; State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 106. (h) The maxim, expressio unius est exclusio alterius, is applicable to a statutory provision, which creates, originally, a power or right. Under this maxim such power or right exists only to the extent plainly granted. 2 Lewis' Sunderland Statutory Construction (2d Ed.), p. 916, sec. 491. (i) The right to exercise the power of eminent domain cannot be implied or inferred from vague or doubtful language, but must be given in express terms, or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist. 1 Lewis on Eminent Domain (3d Ed.), sec. 371, p. 680; Houck v. Little River Drain. Dist., 119 S.W.2d 826; State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 105; Smith v. Sedalia, 152 Mo. 302; 18 Am. Jur., sec. 26, p. 650. (j) Missouri cities can exercise only such powers as are conferred by express or implied provisions of law, since their charters are a grant and not a limitation of power and are subject to strict construction, with doubtful powers resolved against the city. Taylor v. Dimmitt, 78 S.W.2d 841. (k) Defendant city asserting that the right to exercise the power of eminent domain has been delegated to it, must be able to point out the statute which, in express terms or by clear implication, authorizes such exercise, and to the extent claimed. There must be no effort to prove its existence, else it is in doubt, and if so the State has not granted it. State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 105. (l) The cases of Smith v. Sedalia, Joplin Consolidated Min. Co. v. Joplin and Riggs v. Springfield, supra, cannot be invoked as controlling authorities in the case at bar under the rule of stare decisis because the questions and the facts that are in the case at bar were not in any of said cases. State ex rel. Dunlap v. Higbee, 43 S.W.2d 825; Long v. Long, 79 Mo. 644; Kling v. Kansas City, 61 S.W.2d 411; Miller v. St. Joseph...