Van Trump v. Kansas City
| Decision Date | 01 February 1915 |
| Citation | 173 S.W. 32,187 Mo.App. 190 |
| Parties | R. W. VAN TRUMP, Appellant, v. KANSAS CITY, a Municipal Corporation, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. D. E. Bird, Judge.
AFFIRMED.
Judgment affirmed.
Frank G. Warren and Albert S. Marley for appellant.
(1) Appellant had a right to connect with the private sewer which ran over private ground, and the city cannot defend its wilful tortious acts by pleading that appellant is a trespasser upon property of a third person, a stranger to the city. Reed v. Price, 30 Mo. 442; Levy v McClintock, 141 Mo.App. 600; Barberick v Anderson, 45 Mo.App. 272. (2) The city will not be excused by pleading that appellant's damages were sustained on account of his making an improvident connection with a sewer, knowing that it would cause him damage, because the evidence shows that the damage did not occur by reason of the fact that appellant made his connection with the sewer but was caused wholly by the fact that after the connection was made, trash, gravel, oil, etc., were thrown into the sewer through the city's catch-basins and that this alone caused the stoppage and resulting damage. McInery v. St. Joseph, 45 Mo.App. 296; Carson v. City of Spring-field, 53 Mo.App. 295; Rychlicki v. City of St. Louis, 98 Mo. 497; McCormick v. Railroad, 57 Mo. 434.
A. F. Evans and Francis M. Hayward for respondent.
(1) A city being under no obligation to maintain a private sewer it is not liable for damages caused by the stopping of a private sewer. Skinner v. Slater, 159 Mo.App. 589; Kosmak v. New York, 117 N.Y. 361, 22 N.E. 945; Robinson v. Danville, 101 Va. 213; Smith v. Gloucester, 201 Mass. 329, 87 N.E. 626; Gleason v. Kirksville, 136 Mo.App. 521; Kidson v. Bangor, 99 Me. 139. (2) One who unlawfully connects with a sewer cannot recover damages against the municipality for the stoppage of such sewer. Evans v. Portland, 97 Me. 509; Breuck v. Holyoke, 167 Mass. 258, 45 N.E. 732; Buckley v. New Bedford, 155 Mass. 64, 29 N.E. 201; Ranlett v. Lowell, 126 Mass. 431.
--Plaintiff sued Kansas City for damages sustained by the alleged wrongful choking of a private sewer, with which plaintiff's property was connected, whereby the sewage therein was backed up into plaintiff's basement causing him to lose rent on his building, to expend money in removing the sewage and in endeavoring to keep it out, and damaging him in other particulars. The sewer was built merely to carry off sewage from the houses connected therewith and was not sufficient to take care of surface water. The choking was alleged to have been caused by the city connecting to said sewer certain catch basins or sewer inlets for the disposition of surface water, through which dirt, gravel, and other street refuse passed into said sewer and there accumulated in such quantities as to clog it.
The answer was a general denial, and, in addition thereto, the allegation was made that the private sewer in question was constructed and owned by the High Gate and the Linwood avenue Drainage Companies, (corporations), at a time when the territory in which the sewer was located was not in the city limits; that said private sewer emptied into a city district sewer which connected with other city sewers which, following the natural course of drainage, finally discharged into the Missouri river; that several years thereafter, in 1897, the city extended its limits so as to take said territory into the city; that in the year 1900 the Board of Park Commissioners constructed catch basins at certain street corners for the purpose of carrying off surface water, but that said Park Board had no control over the sewers of Kansas City, and that the city never accepted said private sewer and the same has continued ever since to be a private sewer and owned by the Drainage Companies aforesaid.
The answer further alleged the insufficiency of the private sewer to carry off the surface water and sewage from the many houses and drains connected therewith at the time plaintiff attached thereto, which fact he knew, or ought to have known in the exercise of ordinary care; that at the time plaintiff connected with the private sewer there was a public sewer of greater depth and better flow immediately in front of his property; that instead of connecting with the public sewer, plaintiff improvidently, and in violation of certain pleaded ordinances, attached to said private sewer without getting either a permit from the city, or permission from the owner of the sewer, so to do, as required by said ordinances; that when the sewage in November, 1910, or at any time thereafter, came upon his property, the same was the result of his own unlawful and improvident connection with the private sewer, and could have been avoided at any time by disconnecting his property from said sewer, which he failed to do though fully aware of the effect of maintaining such connection.
At the close of all the evidence the court sustained defendant's demurrer, and the plaintiff thereupon took an involuntary nonsuit with leave to move to set the same aside. This motion was filed and overruled and plaintiff appealed.
There is no dispute as to the facts. The question is, do they show a right of recovery in plaintiff? If they do, the judgment should be reversed and the cause remanded. If they do not, the judgment should be affirmed.
A deed for the right of way of said private sewer was filed in the recorder's office of Jackson county, Missouri, on July 12, 1893, and the sewer was built by said Drainage Companies during that year. Four years later, in 1897, the city extended its limits so as to take in the territory through which said private sewer ran but the sewer was never accepted as a public sewer by any act of the city.
In 1900 the Board of Park Commissioners constructed a catch basin at each of four street corners so as to carry surface water from the streets.
Five years later, in 1905, plaintiff bought a lot fronting eighty-two feet on Troost avenue and running back west 194 feet along Van Trump Court. Later he bought a strip of ground immediately west of this lot, 100 feet wide, across which the private sewer ran and plaintiff's purchase was subject, of course, to said sewer right of way.
In the early part of 1910 plaintiff began the erection of a brick building on the first lot above mentioned, facing it on Troost avenue. At the time of preparing the foundation, he connected the proposed building with the private sewer, although there was a public sewer on Troost avenue immediately in front of the proposed building, which sewer was two feet lower than the private sewer and had a better fall. The slope of the ground was also toward Troost avenue at the site of the building. Plaintiff got no permission from the owner of the private sewer allowing him to attach thereto, nor did he get a permit from the city although there was an ordinance requiring such consent and permission before connecting with a private sewer. There was also an ordinance requiring him to connect with the public sewer. So that in connecting with said private sewer plaintiff did not have consent of the owner thereof and violated both of said ordinances.
The building was finished about the first of November, 1910. Before this, however, the water in the private sewer had backed up and into plaintiff's basement till it was twelve inches deep, plaintiff's sewer opening being that distance above the floor. Notwithstanding this knowledge, he did not disconnect from said sewer but allowed such connection to remain and went on and finished the building and did nothing to connect with the public sewer immediately in front of him. Thereafter, at various times his basement became flooded, doing the damage sued for.
The private sewer was insufficient to carry off rain water, and often became stopped up. Sometimes it became stopped when there were no rain storms if something got in and choked it. When the sewer choked up, the city employees and officers, at plaintiff's request cleaned it out for him, and at such times leaves, gravel, and street refuse would be found therein. No act of the city was shown whereby it accepted or assumed control over the sewer in question as a public sewer.
It will be noticed from the foregoing that at the time plaintiff attached to said private sewer, the catch basins were connected with the sewer and had been for some years. In other words, the private sewer was in a condition to cause it to flood plaintiff's basement at the time he attached thereto; that his connection therewith was made without right or authority and was wrongfully done in violation of the two ordinances above mentioned. It will also be observed that before the building was completed and before any appreciable damage had occurred, plaintiff had notice that it would flood his basement but took no steps to cut loose therefrom. Furthermore, although certain city officers may have assumed to put catch basins in the sewer, and certain others cleaned the sewer out when requested by plaintiff yet no authoritative act emanating from the city itself was...
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