Sullivan Realty And Improvement Company v. Crockett
| Decision Date | 30 June 1911 |
| Citation | 138 S.W. 924,158 Mo.App. 573 |
| Parties | SULLIVAN REALTY AND IMPROVEMENT COMPANY, Appellant, v. DAVID W. CROCKETT et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdemann Judge.
Judgment affirmed.
R. H Stevens, Jesse H. Schafer and John W. Booth for appellant.
(1) The board of aldermen of the city of Sullivan had no power with reference to nuisances in the city and their abatement except its legislative power, which it could only exercise by ordinance. R. S. 1899, secs. 5964 and 6164. Its power with reference to nuisances and their abatement was strictly a legislative power. State ex rel. v. Gates, 190 Mo. 540; Ruggles v. Collier, 43 Mo. 353; St. Louis v. Clemens, 43 Mo. 395; Neill v. Gates, 152 Mo. 585, l. c. 594; St. Louis v. King, 226 Mo. 334. (2) The city of Sullivan has not, with reference to the alleged nuisance involved in this case, exercised either the legislative or the ministerial powers conferred upon the city by the laws of the State of Missouri. The ordinance read in evidence is simply an attempt to delegate its general power and authority (legislative and ministerial), to a board of health consisting of the mayor of the city, an alderman of the city, and a resident physician for the abatement of all nuisances existing at the passage of said ordinance, or thereafter to exist in said city. Said ordinance is therefore illegal and void. (3) The proceedings in lieu of abating a nuisance constituted a destruction of private property without warrant of law, and said order and proceedings cannot avail as a defense in this case. Waggoner v. City of South Gorin 88 Mo.App. 25.
James Booth and Bland, Crites & Murphy for respondents.
(1) The discharge of sewage from the Bennett Hotel into the open gutter of Euclid avenue, a public thoroughfare, was a nuisance per se. Joyce on Nuisance, sec. 302, p. 403; Webb's Pollock on Torts, sec. 3 p. 494; Smith v. Sedalia, 152 Mo. 283; Wiffle v. McIntire, 69 Mo.App. 397; Kirchgarber v. Loyd, 59 Mo.App. 59; Beckley v. Skroh, 19 Mo.App. 75; Livengey v. Schmidt, 29 S.W. 35; Schneider-Pressnor Co. v. Bermore Co. 60 S.W. 849; Board of Health v. Heisten, 37 N.Y. 683; Ft. Worth v. Crawford, 74 Tex. 404; Barker v. Port Jarvis Light Co., 25 N.E. 246; Ball v. Nye, 99 Mass. 582; Wood on Nuisance, sec. 598; 29 Cyc., pp. 1156-1157; State v. Board of Health, 16 Mo.App. 8. (2) The city of Sullivan had notice of the nuisance, and it was not only its right, but its bounden duty, to abate it. Benton v. St. Louis, 217 Mo. 700. (3) The nuisance was a public one. Natan v. New Britton, 69 Conn. 668; Burlington v. Stockwell, 5 Kan.App. 569; Aldrich v. City of Minneapolis, 52 Minn. 164; Carlonton v. Rugg, 149 Mass. 550; Fisher v. Jumwell, 128 Cal. 493; Wiley v. Ellwood, 134 Ill. 281; Joyce on Nuisance, section 15. (4) The nuisance being a common and public one, and the city having notice of it, its officers could, in a summary manner, abate it without an ordinance. 29 Cyc. p. 1218; Coates Co. v. Mayer et al., 36 A. 21; Corthell v. Holmes, 32 A. 715; Wolfe v. Chalker, 31 Conn. 21; 3 Blackstone's Com., 6; Hilliard on Torts, 605; Lancaster T. & P. Co. v. Rogers, 2 Pa. St., 114; Harvey v. Deadwood, 18 Ark. 252; Sillman v. Wolfe, 27 Tex. 68; Barneen v. Hotchkiss, 14 Conn. 311; Bowers v. City of Aberdeen, 109 P. 369. (5) The nuisance was abated by the officers of the city and the act was done in the performance of a public duty and for the benefit of the public. For this act neither respondent Chiles, as mayor, nor respondent Anderson, as marshal, to whom the order was given to abate the nuisance, nor Crockett, if he was working under the orders of the marshal, and did participate in filling up the sewer with concrete, are liable in damages to the appellant. 28 Cyc. 468-F; Ely v. St. Louis, 181 Mo. 723; State ex rel. v. St. Louis, 207 Mo. 354; Murlaugh v. St. Louis, 44 Mo. 479; Breen v. Cape Girardeau, 197 Mo. 388; Whitaker v. Hospital, 137 Mo.App. 119; Harvey v. DeWoodey, 18 Ark. 252; Dooley v. City of Kansas, 82 Mo. 444; Allison v. City of Richmond, 51 Mo.App. 133; Berton v. City of Odessa, 109 Mo.App. 883; Thibadaux v. Thibadaux, 46 La. Annual, 1528; 2d Wharton on Torts (3 Ed.), 557.
This is a suit in the nature of trespass, for damages to real property. At the conclusion of all the evidence, the court peremptorily instructed a verdict for defendants and plaintiff prosecutes an appeal from that judgment.
Plaintiff owns and operates a hotel in the city of Sullivan, Missouri, and maintained a private sewer therefrom into a public street of the city. The city of Sullivan is a city of the fourth class, of which defendant Chiles is mayor and also a member of its board of health, while defendant Anderson is marshal of the same city. Defendant Crockett is a citizen of Sullivan who owns a residence and resides immediately adjacent to the mouth of plaintiff's private sewer in Euclid avenue. It appears that numerous complaints had been filed both with the city council and the board of health of the city of Sullivan touching the matter of plaintiff's sewer and condemning it as a nuisance, and that the city officers had frequently protested to plaintiff's manager against its maintenance and insisted upon its removal, but he declined to act in the premises. About a month or more before defendants, mayor and marshal of the city, summarily abated the nuisance, plaintiff's manager, Mr. Bennett, met with the city council and the matter pertaining to this sewer was considered. The council passed no ordinance touching it at this time but sought through moral suasion to induce plaintiff to abate the nuisance. Mr. Bennett, the proprietor and manager of plaintiff corporation, refused, however, saying, "I can't and I shan't do anything on the sewer, and I shall use every legal means to prevent any one from doing anything on it." A few days after this, the city council passed an ordinance creating a board of health which ordinance purported to confer power upon the board of health to consider, determine and abate all nuisances maintained in the city, etc. Defendant Chiles, mayor, is a member of this board of health. The board of health investigated the matter of the sewer which discharged into Euclid avenue, a public street of the city, and condemned it as a public nuisance. After so doing, plaintiff was notified in writing to abate the nuisance within forty-eight hours, but declined and omitted to do so. The board of health thereupon issued a written order to defendant Anderson, the marshal, to abate the nuisance. Under this written order by the board of health, the marshal, after advising with defendant Chiles as to the method and manner of abating the nuisance, employed a laborer to assist him and filled the sewer in two places with cement or concreate. The marshal opened the manhole permitting access to the sewer immediately in front of plaintiff's hotel and deposited a sufficient amount of concrete therein to stop the flow of sewage. He did the same thing at another point near the outlet of the sewer at Euclid avenue. The sewer is constructed on a private right of way owned by plaintiff but no authority by ordinance or otherwise appears for discharging it into the public street of the city. The point of filling the sewer with concrete near Euclid avenue was adjacent to the home of defendant Crockett, and it appears that he was present when the marshal, with Hamilton, performed the task. The proof as to Crockett's conduct in the matter is that, besides filing a complaint with the board of health to the effect that the sewer was a nuisance, he carried a drink of water from his well to Hamilton, the laborer, while he was at the work, and handed a pole to either Hamilton or the marshal with which they removed the covering from over the second hole through which the concrete was lodged in the sewer. The proof suggests that Crockett was casually present, as he was not employed by the marshal and but incidentally countenaced the work to the extent stated. The ordinance of the city of Sullivan creating the board of health and prescribing the manner in which it should proceed in the abatement of nuisances was introduced in evidence as was also its proceedings had with respect to the matter. One section of the ordinance requires the board of health to notify the owner or the person having control of the nuisance and afford him a hearing on the question of nuisance before action shall be taken thereon. Though it appears complaints were filed with the board of health touching the sewer and that the board investigated and condemned it as a public menace, it appears, too, that no notice was given to plaintiff before this action was taken. But, immediately thereafter, plaintiff was notified that the board had considered and condemned the sewer so discharging into Euclid avenue as a public nuisance and ordered the flow of sewage to be abated within forty-eight hours.
On this appeal, plaintiff assumes the court directed a verdict for defendant at the conclusion of all the evidence on the theory that the action of the board of health and subsequent abatement of the nuisance under its order conclude the whole matter and therefore justified the acts of those who participated in the abatement. On this hypothesis it is argued that the charter of the city confers authority on the mayor and city council alone to abate the nuisance by ordinance and that therefore the matter involves a legislative discretion which may not be delegated to the board of health. It is further argued that even if it was competent to confer the authority mentioned upon the board of health in the manner prescribed by...
To continue reading
Request your trial