Sullivan Realty & Improvement Co. v. Crockett

• Citation: 138 S.W. 924,158 Mo. App. 573
• Parties: SULLIVAN REALTY & IMPROVEMENT CO. v. CROCKETT et al.
• Decision Date: 30 June 1911
• Court: Court of Appeal of Missouri (US)

138 S.W. 924

158 Mo. A. 573

SULLIVAN REALTY & IMPROVEMENT CO. v. CROCKETT et al.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

Rehearing Denied July 15, 1911.

1. NUISANCE (§ 78) — NUISANCE PER SE — SEWERS EMPTYING INTO STREET — ABATEMENT.

The maintenance of a private sewer from plaintiff's hotel to a public street, discharging into the street sewage from all the water appliances and laundry of the hotel, constituted a nuisance per se which was subject to abatement without ordinance or adjudication either by the city authorities or by private individuals.

2. NUISANCE (§ 3) — "NUISANCE PER SE" — DEFINITION.

A "nuisance per se," as the term implies, is a nuisance in itself, and one which cannot therefore be so conducted or maintained as to be lawfully carried on or permitted to exist.

3. MUNICIPAL CORPORATIONS (§§ 680, 681) — CITY COUNCIL — POWERS — PRIVATE SEWERS.

A city council has no power to license an individual to lay a private sewer in a public street, and to discharge sewage therein.

Appeal from St. Louis Circuit Court; G. A. Wurdemann, Judge.

Trespass by the Sullivan Realty & Improvement Company against David W. Crockett and others. Judgment for defendants, and plaintiff appeals. Affirmed.

R. H. Stevens, Jesse H. Schaper, and John W. Booth, for appellant. James Booth and Bland, Crites & Murphy, for respondents.

NORTONI, J.

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, Mo., 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 defendant 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. He, 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 48 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 concrete. 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 countenanced 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...