Babb v. Curators of the University

| Mo. Ct. App. | Mar 31, 1890

Gill, J.

Plaintiff, the owner of a building and grounds adjoining the University site at Columbia, prosecutes this action against the college corporation to recover damages for the creation of a nuisance on his premises. On a trial in the circuit court plaintiff had a verdict and judgment for. nine hundred and fifty-eight dollars and defendant has appealed.

The evidence adduced tends to establish the substance of the petition, the material portions of which read as follows: For his cause of action against the defendant, the plaintiff states that he is now, and since and prior to the year .1886, has been, the owner of a dwelling house and real estate adjacent to defendant's campus or college grounds, situated in the town of Columbia, in said county of Boone, and state of Missouri. That upon defendant’s said campus are located its buildings for educational purposes, which said buildings are during the school session of each year occupied by more than five hundred persons. Plaintiff further states that, in the year 1886 the defendant constructed to be used, and thenceforth they were used, in connection with said building and by persons so occupying the same as aforesaid, certain privies and a sewer leading therefrom; that, through said sewer, the filthy contents of the vaults of said privies, and other garbage and offensive matter from defendant’s said premises, have ever since been discharged near plaintiff’s said premises into a small hollow or ravine, and thence have been washed or carried with the surface drainage, from defendant’s said premises, through and across and upon the premises of the plaintiff. Plaintiff further states that by reason of the discharge of the filthy contents of the vaults .of said privies and other garbage and offensive matter from defendant’s said premises, near and upon the premises of the plaintiff, as aforesaid, filthy percolations therefrom have entered plaintiff’s well; and divers noxious and offensive smells and gases, and infectious germs likely to produce human disease, arising therefrom, have infected the air upon plaintiff’s said premises, and have entered into said dwelling house making the occupation of the same uncomfortable, and making the tenants thereof fatally or seriously sick ; by reason whereof, and by reason of constant apprehension of sickness produced by the causes aforesaid the plaintiff ’ s said, premises and dwelling house were rendered untenantable, and have been unoccupied for a long space of time, and the value of plaintiff’s property has been greatly depreciated, wherefore plaintiff says that, by reason of the premises, he has been damaged in the sum of two thousand dollars, for which he asks judgment.

I. A large portion of defendant’s brief and printed argument is devoted to alleged errors of the trial court in admitting certain evidence offered by the plaintiff. From the examination of the record we find that the defendant is not entitled to be' heard on these various questions of evidence. In most cases the record shows no exceptions saved, and in others it is only stated that “to this evidence defendant objected, objection overruled and defendant excepted.” No grounds of objection are named in any instance ? It is well understood that such general objections will not avail the appellant. The grounds of objection must be pointed out at the trial — must be distinctly specified — or they will not be noticed by this court. Davis v. Hilton, 17 Mo. App. 319" court="Mo. Ct. App." date_filed="1885-04-07" href="https://app.midpage.ai/document/davis-v-hilton-6614652?utm_source=webapp" opinion_id="6614652">17 Mo. App. 319; Allen v. Mansfield, 82 Mo. 688" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/allen-v-mansfield-8007991?utm_source=webapp" opinion_id="8007991">82 Mo. 688.

II. The only remaining errors complained of, which deserve to be noticed, relate to the court's instructions to the jury. The,, point made is, that the court erred in directing the jury as to the measure of damages. Without burdening this opinion with a quotation of the instructions, it is sufficient to say that the circuit court instructed the jury that, if they found for the plaintiff, in estimating his damages, any permanent depreciation in the value of plaintiff ’ s real estate, occasioned by the discharge of the sewer thereon, might be considered. Defendant’s contention is, that the damages, if any, to be recovered should be confined simply to the loss of rents up to the institution of the suit; that plaintiff is not entitled to recover in this action for such depreciation in the value of the inheritance which may have been occasioned by defendant’s wrongful acts.

“The rule for measuring damages is that which aims at actual compensation for the injury, and that whatever ascertains this is proper evidence to be submitted to the jury.” 3 Sutherland on Damages, p. 404. Now in the case at bar, evidence went to the jury that because of the construction of the sewer, the filth from the University was precipitated onto Babb’s premises ; that by reason thereof the tenants became sick (some died); the premises were abandoned; the reputation of the property suffered ; people refused to rent or occupy the premises, as they were generally considered sickly.”

Witnesses' testified that the value of the property in the market was depreciated ; that by the creation of this nuisance the salable value of the real estate was much less than it was before ; that even after the discontinuance of the use of the sewer by the University people the influence, thus occasioned by the construction of the sewer, continued to operate on the property and to disparage its value. A permanent injury to value was thus shown, and will it be said, that for this injury so inflicted by defendant’s wrongful act, plaintiff has no remedy ? This is not a case where the injuries, resulting from the nuisance, stop with the existence of the nuisance, as in Pinney v. Berry, 61 Mo. 359" court="Mo." date_filed="1875-10-15" href="https://app.midpage.ai/document/finney-v-berry-8005170?utm_source=webapp" opinion_id="8005170">61 Mo. 359, but rather a case similar to Givens v. Van Studdiford, 4 Mo. App. 498" court="Mo. Ct. App." date_filed="1877-11-27" href="https://app.midpage.ai/document/givens-v-van-studdiford-6613932?utm_source=webapp" opinion_id="6613932">4 Mo. App. 498, approved in 72 Mo. 129" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/givens-v-van-studdiford-8006553?utm_source=webapp" opinion_id="8006553">72 Mo. 129, 86 Mo. 149" court="Mo." date_filed="1885-04-15" href="https://app.midpage.ai/document/givens-v-van-studdiford-8008360?utm_source=webapp" opinion_id="8008360">86 Mo. 149. In the case last cited plaintiff Grivens was permitted to recover damages for depreciation in value of his house in St. Louis where the value had been disturbed by reason of his neighbors renting an adjoining building to bawds — to be used as a house of prostitution — thereby impairing the good name of the plaintiff’s premises and diminishing the market value thereof. The court there held the bawdy-house a private nuisance, announced it as “ unquestionably that if a brothel is kept adjoining the tenement of another, by reason of which his tenants leave, and his property is depreciated in value, he may maintain an action for the special damage thus done his- private property.”

We think then that the lower court was correct, in thus permitting any permanent depreciation in the value of plaintiff’s real estate (which was occasioned by the nuisance complained of) to be considered by the jury in making up the quantum of damages. If the testimony introduced by the plaintiff is to be credited (and the jury seem to have given it weight) then the wrongful acts of the defendant operated seriously against the property rights of plaintiff, and it becomes the duty of the court to see to it that the losses thereby occasioned be compensated, not only by requiring payment for the loss of rents, but as well payment for such ;permanent losses done to the value of the freehold.

We have considered all the points urged for the reversal of this cause, and have here given expression to our views of such points as we deem important; and it follows from these views that the judgment of the circuit court should be affirmed, and with the concurrence of the other judges it is so ordered.