Whalen v. Keith

• Decision Date: 31 March 1864
• Citation: 35 Mo. 87
• Parties: JEREMY WHALEN, Respondent, v. JOHN KEITH, Appellant.
• Court: Missouri Supreme Court

35 Mo. 87

JEREMY WHALEN, Respondent,

v.JOHN KEITH, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Law Commissioner's Court.

Garesché & Farish, for appellant.

There are but two points presented for the decision of the court.

I. Had the justice jurisdiction of the action, or is there anything alleged in the complaint to render the defendant liable in this action?

II. Could the plaintiff, in the absence of proof of trespass or encroachment upon his premises by defendant, recover, or should not the instruction asked by defendant have been given?

This was an action for a “ private nuisance,” and unless a justice of the peace had jurisdiction, the motion to dismiss should have been sustained and the instruction given. R. C. 1855, p. 925, § 3, giving justices of the peace jurisdiction in cases of injuries to persons, or to real or personal property, cannot, either in language or spirit, include a case like the one at bar.

J. B. Higdon, for respondent.

In the court below, on the trial of this cause, an informal demurrer, or a motion to dismiss the suit, was made by the appellant on the ground that no sufficient cause of action was alleged, which demurrer or motion was overruled. Respondent contends that the same was properly overruled, for the reason that the respondent's complaint, before the justice and in the Law Commissioner's Court, alleged, not only the damage from nuisance on appellant's premises, but also an encroachment on the premises of respondent; without which last allegation, however, respondent insists that the demurrer or motion was properly overruled, as the law requires “every person so to use his own rights and property as to do no injury to those of his neighbor,” &c., &c. (Tayl. Land. & Ten., 134, 135, 137 & 144), which lays down a principle of law so well established, as to render unnecessary a reference to the other authorities on the same point.

The evidence tended to show, that the appellant not only erected a shed over the stove pipes by him set up, preventing the escape of the smoke in any other direction but that of respondent's house, but turned the pipes towards his house, and extended them on to and over the premises of the respondent.

The court below properly refused the instruction asked by appellant. (Sedg. on Dam., 44, 91, 116, 138, 145, 480, 484.)

BATES, Judge, delivered the opinion of the court.

This was a suit brought before a justice of the peace by a complaint, as follows:

“Plaintiff states that he has been damaged by defendant to the amount of fifty dollars, in this, that he, plaintiff, is owner and occupier of certain premises described as follows: one house and lot situated on Poplar street, south side, between Nineteenth and Twentieth streets; that defendant is the owner and occupier of premises adjacent to the house occupied by plaintiff; that...