The City of Chillicothe v. Bryan
| Decision Date | 07 December 1903 |
| Citation | 77 S.W. 465,103 Mo.App. 409 |
| Parties | THE CITY OF CHILLICOTHE, Respondent, v. LYDIA A. BRYAN et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Livingston Circuit Court.--Hon. J. W. Alexander, Judge.
AFFIRMED.
Judgment affirmed.
Lewis A. Chapman for appellants.
(1) The testimony in the case showed that the discharges from said sewer of the foul matter and water on the land of the defendants created a nuisance to the great damage and injury of the defendants' land, preventing them from having the use of the same for their stock, and that the said discharges depreciated the value of their land. It was a private and public nuisance and should have been abated. If the city refused to abate or remedy the nuisance the defendants can not be blamed if they take the remedy into their hands. Preserve Co. v. Beeman, 60 S.W. 849, s. c., 22 Ky Law Rep. 1527; Sulphur and Copper Co. v. Barnes, 60 S.W. 593; Van Fosseau v. Clark, 52 L. R. A. 279; Kissel v. Lewis, 156 Ind. 233, s. c., 59 N.E. 478; Paper Co. v. Comstock, 58 N.E. 79; Griffith v Holman, 63 P. 239, s. c., 23 Wash. 374. (2) The creation of stenches and noisome odors has been recognized always as a nuisance. 16 Am. and Eng. Ency. Law, p. 952; Wood on Nuisances, p. 650. (3) No one can acquire a prescriptive right to maintain a nuisance. Smith v. Sedalia, 152 Mo. 283. (4) A municipal corporation has no right to create or maintain a nuisance. Chapman v. Rochester, 1 L R. A. 296; Dwight v. Hans, 150 Ill. 273; Robb v. LaGrange, 158 Ill. 21; Schnier v. Johnson, 71 Hun 232. (5) That the same use as to right and extent has been the same all the time lies at the foundation of the right to invoke the doctrine of prescription in support of nuisances of this kind. 16 Am. and Eng. Ency. of Law, 999; Wood on Nuisance (1 Ed.), sec. 705; Wood on Limitation, sec. 182; Holsman v. Boiling S. P. B. Co., 14 N. J. E. 343; Postlewait v. Payne, 8 Ind. 104; Janssen v. Lammers, 29 Mo. 89; Russel v. Scott, 9 Cowen 278; Roundtree v. Brantley, 34 Ala. 544. (6) No right became vested in the city of Chillicothe by the mere silent acquiescence of the owners of the premises in permitting at the first the drainage to be carried in the premises and afterwards the continuance of the nuisance; at most in this case, it was a license revocable when it became troublesome, or a nuisance. The city got permission with that understanding. Pitzman v. Boyce, 111 Mo. 387; Burton v. Railroad, 50 Mo.App. 426; House v. Montgomery, 19 Mo.App. 170; Cobb v. Smith, 38 Mo. 21. (7) If the evidence establishes the fact that the discharge of all this foul matter in one spot in the city limits is a public nuisance, the city of Chillicothe, Missouri, could never gain prescriptive immunity to maintain it. 16 Am. and Eng. Ency. of Law, 995; Wood on Nuisance (1 Ed.), sec. 724; Cooley on Torts (2 Ed.), p. 731; Tunk v. St. Louis, 122 Mo. 139; Givens v. Van Studiford, 86 Mo. 158; Wood on Nuisance (2 Ed.), secs. 736-737; Glessner v. Anheuser-Busch, 100 Mo. 516; Edmondon v. Moberly, 98 Mo. 526.
J. M. Davis & Sons, and Paul D. Kitt for respondent.
(1) That plaintiff has acquired the right to maintain this sewer and discharge the sewage therefrom into the water course on the land of the defendants by prescription, because if it be true, as alleged in the answer of the defendants and their statement, that this sewer was only to be used as a cellar drain, the respondents having, under claim of right, for more than twelve years before the institution of this suit used it for the purpose of carrying off all kinds of sewerage, and the right to do so has been acquired by prescription. (2) Respondent, having continuously and uninterruptedly under a claim of right, with the knowledge and acquiescence of the owner, used it as a sewer for more than ten years prior to the institution of this action, and sold rights for perpetual use thereof to private persons, who, with defendants' knowledge, have made valuable improvements on the faith of it, plaintiff's rights thereto have for this additional reason become fixed by prescription. (3) The defendants having waived their claim for compensation and having allowed the land to be appropriated and used for more than twelve years without objection and without insisting on a claim for damages, respondent has acquired the right to maintain the sewer by reason of the waiver of prepayment of compensation for damages caused by the sewer, and defendants are now estopped from ousting plaintiff. (4) The defendants by their conduct in standing by and seeing Beeman take two taps (one his own and one for the Loomis property), Tracy, Atwell, Alexander (Minor property), and Conger (Sheetz property), each take taps and each expend hundreds of dollars in putting in improvements in the way of closets, bath rooms, etc., which are only useful by reason of this sewer connection, and seeing and permitting the city to make contracts with these persons for perpetual connection with this sewer and discharge of the sewage from their premises through the same without objecting, are now estopped from destroying the sewer.
The plaintiff, a municipal corporation of this State, by injunction seeks to restrain the defendants from obstructing a certain city sewer.
In the year 1889 plaintiff, in pursuance of a certain ordinance, constructed a sewer located as follows: Commencing in Polk street opposite to the alley passing through block 14, King's Addition to the city of Chillicothe, thence north through said alley to the channel of natural drainage north of block 16, also in King's Addition. The plaintiff has maintained and used the same for sewerage purposes from that time to the beginning of the suit, except for several short periods during which the defendants obstructed the same at its outlet. This sewer empties upon the land of defendant Lydia A. Bryan. It appears that in each instance when defendants obstructed the sewer plaintiff caused it to be opened. But it is alleged that defendants threaten to obstruct it again and will do so unless restrained.
It is admitted that there was no condemnation of the land for sewer purposes and no money paid to Mrs. Bryan therefor. It is admitted, however, that she consented to its location and construction on her land. A number of persons who own dwellings in the vicinity of the sewer have made connection with it for general drainage purposes, and the said obstructions cause the contents of the sewer to flow back into the basements of these dwellings.
On the other hand, while it is admitted that the sewer was constructed with the consent of Mrs. Bryan, it was understood at the time she so gave her consent that the sewer was to be used for drainage of cellars only, or was to be taken up if it proved a nuisance, or that plaintiff would take such precaution as would prevent it from becoming a...
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