Walther v. City of Cape Girardeau
| Decision Date | 02 July 1912 |
| Parties | RUDOLPH WALTHER, Respondent, v. CITY OF CAPE GIRARDEAU et al., Appellants |
| Court | Missouri Court of Appeals |
Argued and Submitted June 5, 1912.
Appeal from Cape Girardeau Court of Common Pleas.--Hon. R. G Ranney, Judge.
AFFIRMED AND REMANDED (with directions).
Frank Kelly and Ely, Kelso & Miller for individual appellants;
Lane & Alexander for the appellant city.
(1) Cape Girardeu is a city of the third class. The city not only has the right to abate nuisances within the city but it is its duty to do so. It is one of the police powers of the city, and may be exercised in a summary manner. Secs. 9231 9235, 9574, R. S. 1909; McQuillian Municipal Ordinances, sec 444; 29 Cyc. pp. 1214-1218; Chillicothe v. Bryan, 103 Mo.App. 409; Waggoner v. South Gorin, 88 Mo.App. 25; Gallaso v. Sikeston, 124 Mo.App. 380; Realty Co. v. Crockett, 158 Mo.App. 573, 138 S.W. 924; St. Louis v. Schmekelberg, 7 Mo.App. 556. Section 339 of the ordinance declared the pond a nuisance, and section 351 of the ordinance provided for the abatement thereof, and the notice was given and plaintiff ignored it, and the marshal had the right to abate it. Realty Co. v. Crockett, supra. (2) The plaintiff had no right to stop up the drain and cause a pond to be formed on the adjacent lots to the injury of the owners and to the damages and injury of the public. Goettenetroeter v. Kappleman, 83 Mo.App. 290; Paddock v. Somes, 102 Mo. 226. (3) The court erred in refusing to call a jury to pass upon the question of the pond being a nuisance and the right of the city to abate it. Cooley's Blackstone, pp. 219, 220; Manufacturing Co. v. Milling Co., 79 Mo.App. 153; Grossman v. Oakland, 36 L.R.A. 593; Waggoner v. South Gorin, 88 Mo.App. 25; Lipscomb v. Little Johnb0 S.E. 1023. (4) The plaintiff has an adequate remedy at law in an action for damages and a bill in equity will not lie. Burgess v. Kattleman, 41 Mo. 480; Weigel v. Walsh, 45 Mo. 560; Graden v. Parkville, 114 Mo.App. 527; Gordon v. Mansfield, 84 Mo.App. 367; Crenshaw v. Cook, 65 Mo.App. 264; Strother v. Cooperage Co., 116 Mo.App. 518. (5) An injunction will not lie for past injuries, or when the act complained of is complete. Owen v. Ford, 49 Mo. 436; Carlin v. Wolf, 154 Mo. 539; Davis v. Hartwig, 195 Mo. 398; Brier v. Bank, 225 Mo. 683; 22 Cyc. 759. (6) He who comes into equity must come with clean hands. Equity would have compelled plaintiff to put in a drain or restrained him from holding the water in a pond and creating a nuisance, therefore it will not restrain defendant from doing the very thing which it would require him to do himself. Heitz v. St. Louis, 110 Mo. 626; Little v. Cunningham, 116 Mo.App. 545; 16 Cyc. 144. Plaintiff maintaining a public nuisance cannot have the aid of equity to restrain defendant from abating it, although defendant has no authority to abate it. Railroad v. Crothersville, 159 Ind. 330, 64 N.E. 914; Eaton on Equity, sec. 20, page 69. (7) Equity will not grant a mandatory injunction unless the consequent damages cannot be estimated or compensated. Bank v. Kennett Est., 101 Mo.App. 389; Sec. 2534, R. S. 1909. (8) Plaintiff's bill should have been dismissed and defendant awarded judgment for the sum of ninety dollars and thirty-four cents for the cost of the work. Hannibal v. Richards, 82 Mo. 330; Sec. 9574, R. S. 1909.
Wilson & Cramer for respondent.
(1) The depression in the block in which plaintiff's property is situated is not a watercourse in the well defined legal meaning of that term, but simply a natural drain for surface water. Scott v. Railroad, 158 Mo.App. 625. (2) Under the common law rule, which prevails in this state, that surface water is a common enemy, plaintiff had the right to protect himself against the water flowing through the depression in his lot by filling it up, even though the effect was to hold the water on his neighbor's land. Grant v. Railroad, 149 Mo.App. 306. Having this legal right, he was not answerable in damages to the adjoining owner, nor amenable to the provisions of the city ordinances for creating a nuisance. The pond if it was a nuisance, was not on plaintiff's premises, and he was under no obligation to leave an outlet for the water when improving his lot. (3) The evidence shows that the city discharges water collected in Themis and other streets into the depression west of Sprigg street through a sewer extending under Themis street for some distance into the alley, and that this water runs through the opening under Sprigg street onto the lots west of plaintiff's premises. No obligation rested upon the plaintiff to furnish the city a passage for the surface water it thus collected and threw upon those lots. The alleged nuisance could easily have been abated by closing the city's sewers, or filling up the lots west of plaintiff without invading his constitutional rights. (4) The sewer built across plaintiff's premises is a permanent structure of large-sized pipe, connected with cement, and the act of the city amounts to a high-handed taking of his property in violation of section 21 of the bill of rights which provides: "That private property shall not be taken or damaged for public use without just compensation." (5) The sewer is a continuing nuisance which interferes with plaintiff's free use of his property and should be abated at the cost of the city. It would be unjust to require plaintiff to undo at his own expense what it took ten men three days to do in putting down the sewer. Plaintiff was entitled to a mandatory injunction to compel the city to remove the sewer and restore his lot to its former condition. Wood on Nuisances, sec. 786; Atterbury v. West, 139 Mo.App. 180; Bank v. Kennett, 101 Mo.App. 370.
--In March, 1910, the city of Cape Girardeau, a city of the third class, cut a ditch ninety feet in length, width not given but apparently about three feet, through and across a lot owned by plaintiff fronting on Frederick street in that city and constructed a permanent sewer therein partly of twenty-four inch and partly of eighteen inch pipe, connecting the same with a thirty inch sewer pipe which the city had before then laid under Frederick street when it filled up that street. The city had no permission or authority from plaintiff to cut through his lot and lay this pipe but claimed the right to do so under its authority to abate a nuisance. The nuisance complained of is claimed to have been created by plaintiff filling his lot up to the grade of Frederick street and thereby stopping the flow of water from low ground to the west of his premises and from the lands of others through plaintiff's lot and thence into the sewer pipe which had been laid by the city under Frederick street. Preliminary to cutting the ditch through plaintiff's property and laying the sewer pipe in it, the city caused a notice to be served upon the plaintiff that the stopping and filling of the drain and sewer pipe on Frederick street by him, adjacent to and in front of his lot had caused the water to accumulate in the "ditch, drain, depression and watercourse" above where plaintiff had stopped and filled the sewer pipe and drain and had caused water to stand in that place to a depth of three or four feet, covering an area of about 1000 square yards, forming a pond of "stagnant, filthy, obnoxious water and giving rise to obnoxious and offensive and disagreeable odors, and is now, and will grow worse as the weather gets warmer, a public nuisance, endangering the public health, and is a source of disease, to the great danger, damage, injury and annoyance of the public." Plaintiff was therefore notified that acting under the order of the acting mayor and in accordance with the provisions of the ordinance of the city, he was notified by the chief of police to open the drain and sewer pipe closed by him or cause it to be opened within twenty-four hours of the service of this notice or to signify his willingness that the city officers might enter on his premises and make the proper opening and drain to remove the water and so abate the nuisance. Plaintiff was further notified that if he failed or refused to comply with the demand and request the chief of police would take the necessary steps to drain the pond or pool and abate the nuisance by making an opening through plaintiff's lot and laying a drain pipe to connect with the one closed by him. This notice was served on the plaintiff on the 23rd of March. It appears by the testimony that on receipt of this notice plaintiff told some one of the officers of the city that he wanted a little time to consult his attorney about the matter and he thereupon telephoned to his attorney, who resided at Jackson in Cape Girardeau county, who told him that he would come down and examine into the matter in a day or two. At the expiration of the twenty-four hours, however, plaintiff not having taken steps to remove the obstruction by cutting a ditch through his premises and not having signified his willingness or given permission to the city to do so, the officers of the city, over the protest of plaintiff, entered upon his lot on Friday, the 25th of March, preliminary to doing the work of cutting the ditch through his premises. On Saturday, the 26th, plaintiff caused a notice to be served upon the mayor of the city that on Monday, at 2 o'clock p. m., he would present his application to the judge of the Cape Girardeau Court of Common Pleas in chambers, asking for a restraining order against the city. Without paying attention to this notice, the officers of the city on that Saturday, the 26th, commenced cutting the ditch clear across plaintiff's lot, a ditch some seven feet in depth at...
To continue reading
Request your trial