*1 SUPREME 438 OF COURT Girardeau v. Hunze. CITY OF CAPE v. HERMINIA GIRARDEAU HUNZE Appellants .
et al., One, May 24, Division 1926. Party:
1. JURORS: Condemnation: Inhabitants of Sewer Dis trict. Since the enactment of Sections Revised Stat 1919, tax-paying district, proceed utes a sewer in inhabitants a by ing city strip to cond'emn an easement in a of farm land purpose constructing maintaining pipe, for the sewer a acquire an to outlet for the district the use a natural through incompetent flowing part farm, watercourse a of the are not jurors report exceptions on the trial in the circuit court of to the commissioners, theory in on the that the lands of such charged habitants1 the sewer district will be with benefit assess pay damages. ments to mere fact own reside or property city disqualify or sewer does not them. district 2. WITNESS: Condemnation: Commissioner. un A commissioner who property be the order the court examined the to taken der damage incompetent testify damaged1 a to what sewer is not exceptions report a will be at trial in the circuit 'court report commissioners, if reference he makes no to their knowledge simply they arrived, states, from his award at which but be; premises, opinion damage in his will and even what technically incompetent, testimony is be his could be held to he jury was amount far ex the verdict of the for an harmless where
cess of his estimate. Replacing Land Dis EVIDENCE: Condemnation: Restricted Use: 3. proceeding turbed. farm land as In a surface of condemn designated right-of-way pipe underground laid for a sewer to be only maintenance surface as the thereafter to disturb the date and improper necessary, per repair it is not the sewer make specifications require testify and contract witness mit a pipe replace is to the land contractor and, protect it, laid, such in which he finds in the same condition a; city up required put right, out with the bond the contractor year may contrac land1 within if the restore the testimony inadmissible Such not do so. does tor requirements theory bound such the land is not the owner of money, paid contract, his to be but entitled in the appropriation and the is en and restricted is limited since the AiP'BIL TEEM, 1926. City Cape any tending
titled to fact to show a reduction or diminution of damage. Sanitary —-: -: Previous Conditions. un- Proof of the *2 sanitary slaughter along conditions and the existence of houses the land, creek on defendants’ which is the to be used as the outlet of sanitary sewer, emptying point, above the within a reasonable prior report, time to date the the commissioners made their com- is petent; particularly so, day and where defendants show that the preceding unsanitary the trial a similar condition existed. Such competent purpose enabling jury evidence for the of the de- to city’s what termine additional contamination will result from the of use the stream as a sewer outlet. -; Adjoining
-:5. Value: Price Market of Land. aWhat agreed pay adjoining has for witness to a tract of land that which laid, pending negotiation the sewer main to be in a has purchase, competent not been consummated a contract of is not to establish the evidence market of land value the in which the laid; any competent, to he sewer is and even if such evidence were rejection subsequent testimony its is cured error the of other showing price agreed paid witnesses what was the the for adjoining tract. Ip. determining INSTRUCTIONS:. a 6. Considered as Whole. whether jury damages, the structions, were misdirected on the measure all in- the given -appellants given respon- those for and those for dents, together charge jury, to be considered as one entire they provided confusing contradictory. misleading, are not Damages: Temporary -: Condemnation: Measure of Use: Rental 7. strip proceeding Value. In a to condemn an in a easement ten-foot pipe, appurtenant land in which is to be laid a sewer with man- holes, completed by designated date, he a he and thereafter necessity repaired requires, as an maintained instruction city telling jury ren- to award to the owners the reasonable date, strip designated until tal and such other value said damages remaining land as will result to the owner’s on account period, damage said for such and such further as will there- use construction, accrue to the owner from maintenance after repair pipe, does not violate of the sewer the rule the true is the difference between the market value of measure strip part before, the ten-foot is a and its tract of which the whole after, appropriation, value and is not erroneous. market Riparian -: -: -: Outlet Creek: Owner. The sanitary and a a storm-water sewer is branch natural outlet of juncture city, corporate its limits of the within SUPREME COURT OP City Cape Girardeau v. Hunze. corporate limits, a creek distance above likewise within the some way farm, through defendants’ its which the creek flows on public point juncture, river. Above the the creek is a natural or through length, flowing watercourse eleven miles in a section of city, drainage twenty Held, square a miles. and affords natural first, that the absolute owners owners the farm are not the merely riparian owners, watercourse, their but said natural subject rights in and uses of the waters of the creek are ownership, principles riparian must endure as such way remedy impurities pollution such as find their without drainage into the stream from the natural wash and upper its its situated on banks and of the lands situated within watershed, city, thereof as to section hence, owner; and, flows, large riparian it in a is likewise sense second, instructing court did not err in right purposes, including has “the same for its to use creek outlet, right farm of said to use as have owners purposes, sub- said their to use ject stream and the waters thereof for create not to to the restriction so exercise the *3 nuisance, respond damages the the use and to in the event deprive by city pollutes as to the so the waters the stream same enjoy they farm the uses would the of the of the water owners city by for the as an it for the use of said stream outlet
were not district,” farm en- and that owners of the were not said sewer the by city damages said stream for mere use the titled recover the sewer, sanitary the an said and storm-water for outlet for by pollution natural wash and the waters of the creek caused the outlet, point drainage but sewer’s the above the into stream the. by damage only ad- farm caused increased to the whole to the emptying pollution arising into the of the waters from the ditional city pipe. sewage through from the outlet of the stream ; Use: Increased Pollution. -: -1 — Mere An -:-: 9. telling jury re a farm cannot that the owners of instruction through flowing damages fact that the creek from the mere cover district of outlet a sewer “is be used as a sewer for farm their “you city” farm find that the owners cannot alone, you damaged from find and believe unless on that account are more rendered stream will be that the waters of said the evidence time,” they present erroneous. are at the use than unfit for Oils, and Sedi- Unfit for Odors -: Use: -: -:-: 10. through deposits, damage the land on ment. Such elements sanitary have a an out- which sewer is creek into flows the which odors, sediments, oils, greases, sewage, will leave which cause let comprehended fairly by disclorations, an instruction are stains Yol. 314] APRIL TERM, 1926.
City Cape oí n requires jury sewage emptying find into that the the stream “will render use the waters the stream more unfit for they present than are at the time.” - n — : Burden of Proof: Peculiar Benefits: 11. -:-:-: exceptions hy
Excess. In the trial of the owners of a farm to report appointed damages of commissioners to assess flowing by city will accrue to them from the use of a creek sewer, sanitary their land as an outlet to a and storm-water telling jury proof an instruction that “the burden of exceptors prove by that the land them will be owned tract damaged special may in excess of benefits that accrue to system,” reason of the construction and maintenance of the sewer subject theory exceptors required to criticism on the are not prove damages benefits, exceed the is cured in- an given request telling jury youi struction at their that “before anything exceptors’ damages special peculiar can deduct you benefits, exceptors’ prop- must find first that the remainder of erty peculiar not taken will receive direct and' benefits from the sewer, by peculiar construction maintenance of said .and special gen- benefits are meant such benefits as are not common or community, you eral to other lands in the same in- further proof structed that the burden of to show special peculiar exceptors’ property.” benefits will accrue to contradictory. two instructions are not (Sec. 8363, COSTS: Condemnation: Discretion. Under the statute 1919), taxing accruing filing R. S. of costs after the of the com- report proceeding missioners’ a condemnation rests in dis- cretion of the trial court. Where the commissioners assessed the damages lay- (a) that will accrue to the owners of farm from ing by twenty-one-inch pipe through of a their lands (b) flowing through the use of a creek the farm as an outlet sanitary dollars, sewer, and storm-water at fifteen hundred exceptions report, filed and a their verdict amount, found their be the did not same the trial court *4 assessing abuse .its discretion in at the trial of costs incurred exceptions against exceptors. . said Corpus Juris-Cyc. 2941, Appeal Error, X, and 4 References: C. Section New; p.‘960, 687, Domain, X, 148, p. Eminent n. 94. 20 n. C. Section 227, 766, 93 192, 740, 89, 90, 91; 62; 63; 92; p. p. p. 767, Section n. n. n. Section 487, 439, p. 1057, New, New; p. 1115, n. 98 Section Section n. .10 489, 1120, Evidence, p. 23; 509, p. 1138, n. n. Section 22 X, Section 72 New. X, 28, p. 86, 75; 187, Juries, 150, p. C. C. n. Section n. 8. 35 Section 1179, 1779, 329, 315, Cyc., p. 66; p. 317, Statutes, p. n. n. 79. 36 Section 73; Trial, Cyc.,p. 1605, 69; p. 1666,n.83; p, 1778, p. 15. n. n. 38 n. Cyc., 75, 76; p. 1781, 77; p. 1782, 81; p. 1785, Waters, 40 n. n. n. n. 90. p. 595, n. Court Cape Girardeau of Common Pleas. Appeal Snider, —Hon. John A. Judge.
442 SUPREME. OP COURT v. Hunze. Aeeirmed.
Spradling appellants. & Dalton for (1) given 3 2 numbered and 6, 7, Instructions they request respondent erroneous, because are damages, recovery physical there limit actual damages, (a) correctly fore do not state measure part The cer farm, measure of where a of a. rights tain therein, taken, are condemned and is the dif prop ference between the fair value of the whole market erty appropri before and its market value after fair por ation in view of the uses to condemned applied. rights tion or to be thereafter Railroad v. Kemper, Real Estate 204 Mo. Railroad v. 256 Co., 565; Mo. 279; Levee 183 District, 700; Janes v. S. W. Mc Railway Elroy Doyle Air 172 546; Mo. v. Line, Co., v. 113 (b) physical damage Mo. 280. appellants’ Even if actual
farm on account
the use of
La Croix
negligible
Creek as a sewer route would
if
even
there had been no
evidence
extent
substantial
as to the
yet
damages,
taking
to use said
n creekas sewer route and the
laying
twenty-one
of said
pipe
ap
inch sewer
pellants’
value
decreased the market
damages.
farm
were entitled to substantial
Shipp,
Pipe
Prairie
Line
;
Co. v.
James A. James A. Barks Bush E. baugh respondent.
(1) given by The at the re court, instructions quest respondent, should be considered as what determining compensation, jury followed petition the evidence offered the trial and di appellants, jury rected the in terms most favorable to (a) given steps w;ere instructions in a series The covering and must be case,' the entire considered as given, taken and if all of the instructions when to whole, 445 1926. TERM, APRIL City of
gether, eorreotly fact case, declare the law of any may alone, one of the taken instructions, incomplete Pren error. erroneous does not constitute Ry. Co., tiss v. 111.Life Co., 702; Ins. 225 Hulse v. S. W. Chicago- 214 669; S. W. v. Mo. 154; Lusk, Cassin 277 (b)' Ry. Kemper, Great Western 256 v. Mo. Co. Respondent temporary acquired right use strip use limited land, and a strip said defined which uses were thereafter, land particularity petition evidence, in the correctly 2 as to what Instruction directed the compensation just determining should consider in taking rights. 740; of such 20 Louis C. J. St. Chicago Ry. Brown, & Co. v. Mc 545; Mo. E. C. S. respondent (c) ac Grew, Mo. 282. *7 quired agen La Croix Creek were use an cy already impressed public with use, and were not entitled to the same measure of for appropriation, although such under the instructions, all appellants got damages. the benefit of such measure of authority, applied Both on reason rule for meas uring damages taldng absolutely property of applied under control the owtner cannot when of property sought prop be used is not the absolute erty impressed public of individual, but is with a Clegg, 1; use. St. Louis v. 233 S. McKee St. W. v. City Valparaiso Hagen, Louis, 191; 17 Mo. of v. 153 (d) impressed Cape. 337. Ind. was Croix Creek proprietor public use, because of land stream cannot insist the water flows pure come him shall in its but natural, state, must compensation, submit, too without upper proprietors, reasonable use of such stream the drainage he must submit to the natural wash coming Joplin Mining towns cities. v. Co. City Joplin, Valparaiso 124 135; Mo. Hagen, v. (2) nothing 153 337. There Ind. in the record to attorneys litigants present show whether were judgment absent of the trial when court was en 446 SUPREME COURT OP v. Hunze. Girardeau wholly the matter since immaterial, tered, but that report filing of the taxing after the costs, entirely the discretion rests commissioners, court. (3) The 1919. testi 1796, 8363, S.R.
Secs.
E(.
mony
character of
Smith as
C.
work
of witness
to.the
proper,
enable the
to be
in order to
done was
appellants’ land,
the use of
determine
character of
city
only
seeking
surface
to condemn the
since the
was
way
January
up
766;
20
of
ICnapp-Stout
1924.
J.
1,
C.
396; Railroad v.
Co., 1601Mo.
Railroad v.
Yards,
v.
1691;
121
Railroad
Union
Clark,
Mo.
Stock
By express provision
(4)
statute,
a trial resulting common-law had on 16, was March 1923, judgment fixing appellants’
in a verdict and damages they appeal. $1500, from which During filing interim the between the of the commis- ’ report appellants’ exceptions sioners and the trial of city paid thereto, the into the court sum of $1500,awarded appellants damages by the commissioners, and such paid February prior sum was on 17, 1923, jury appellants’ by exceptions the trial to the com- report. judgment missioners’ jury’s The entered finding’: verdict contains this “The court further that it finds is left to the dis- cretion of the court to assess costs of trial exceptions plaintiff exceptors, said to either the or the and since award of the to the ex- ceptors in this case not in the award excess of to said exceptors made herein, commissioners but is in the same court amount, the believes that will be the in- justice right terest of and in this matter that said cost against exceptors, be taxed it is, said therefore or- adjudged dered and that all of the costs of the trial of said exceptions hereby against same are taxed said exceptors, may issue execution therefor.” rights acquired pro
The taken and this ceeding, judgment, pleadings as disclosed are rights of two kinds. first kind incident to twenty-one inch the construction and maintenance of pipe, and'appurtenances, main or on the sewer manholes strip by appellants, owned land aforementioned to use, outlet, second kind are as a sewer watercourse,- Creek, natural known as part group In the first across land. rights, acquired use of kind of the absolute January strip January 1923, 1, 1924, 18-, of land twenty-one purpose -constructing the inch permanent appurtenances, pipe, and a manholes pipe, strip man land for said said easement appurtenances, to enter said holes and strip January as will 1924, of land at such times after *9 OF COURT SUPREME. Cape Girardeau v. Hunze. reasonably necessary for the maintenance re and appurtenances. pipe,
pair and manholes In of said rights, acquired city group1 use of second Cape Mississippi as an La Creek outlet Croix No. when 5'at such times River from said Sewer District carry inadequate twenty-one sewer main is inch said sanitary sewage from said water and all the storm off system. Appellants’ are evidence tends to show that body lying in one and sit- farm, 320-acre the owners of a highway about one- road uate a hard surface city southern limits mile south of the fourth Cape Cape La Croix Creek flows Girardeau. three-quarters part farm half for a north improved an eleven-room farm is with a mile. The of residence houses; four chicken bath; heat, Water workshop; garage; crib corn double house; a feed granary; hay shed; machine combi- shed; shed; hay house; mill shed; tenant barn; nation stock and engine hog- hay shed; shed; machine combination out-buildings; plant power and other house, shed smoke ; Appellants’ the rea- large witnesses fixed well. and a improvements $26,665. market value of the said sonable buildings and on located close to various The farm used Cape The is La Creek. south bank dairy purposes farming is suitable for ninety about platting located The well is into lots. fifty feet, one hundred hundred feet, and barns one hun- about two house The residence from the creek. forty thirty-five About Cape creek. feet south of the dred Creek, La Croix. farm lie north of acres All creek. lying southwest the farm remainder of seventy-five except sixty cultivation, of the farm Cape water pasture woodland. acres, which is purposes. for stock is used Croix Creek springs, running- fed water, stream of It ais year “all furnishing stock dry, water never water not use the Appellants, however, do around.” drinking purposes. for house for human TERM, APRIL v. Hunze. Girardeau, is a class, of the third located *10 Mississippi 5 River, and Sewer District No. territory part a embraces in western of length, varying about one and width, miles in of one-half containing approximately and an area of acres, and approximately people, is inhabited about and 4,000 drainage 800 families or homes. The natural southwardly through lands within the sewer is district a Spring small watercourse, known as Painter Branch, Cape and thence into La in Creek, Croix which turn empties Cape Mississippi into River. Creek eight long a drains watershed about miles and two and extending northwestwardly wide, one-half miles from Cape meandering On Girardeau. account of the of length creek, the stream itself about eleven is miles in point junction from source to its its with Painter Spring point junction Spring- The Branch. of Painter Cape and Branch La Croix within Creek is limits Cape point, From Girardeau. this La Croix Creek southeastwardly, beyond meanders limits, a dis- Mississippi tance of about two miles, to River. It twenty approximately square drains an area of or miles, thirty 12,800acres, about times the area of Sewer District 5.No. It is an active stream with sufficient fall to create rapid velocity, heavy a or in current, of flood times passes rainfall. It is a and, tortuous stream as it across appellant’s grown up in farm, its banks are timbered and places places brush. In some shallow and in other deep, dry pools so that, there are times, water with riffles between. system
The devised District No. 5 is Sewer system. sanitary known as combined storm-water general plan work, calls a net or lattice, lat eral sewers district, connected the houses sanitary sewage gathering the from the-houses, storm, or surface, streets, water sidewalks, building’s, carrying- larger both into mains. This pipes net mains or is divided into two sections, work serving parts one the north and middle of the district, n 314 Mo. —29. Sup. SUPREME COURT OF Hunze. part serving the other the southeast district. contents of
The first out that the section so laid large converge and into a concrete lateral mains flow pipe, eight having and one-half main or a diameter discharges basin, into concrete which turn feet, converges interceptor. an The second section called having pipe a di into another main or flows concrete empties fifty-one into inches, ameter of turn interceptor. These con two second concrete basin, interceptors, grit-chambers, contain so- basins, crete inorganic purpose called, the collect gravel, brought sewers, sand, matter down such inorganic matter. This collected rock other hard periodically. The concrete matter is removed basins thirty interceptors approximately long, *11 feet ten feet deep. At and or six the lower end wide, five feet tw¡o opening feet con wide, basin a slot or each is twenty-one pipe connecting verges two into inch the a twenty-one interceptors, into inch main or and a thence pipe, underground for a distance of two which runs twenty-one Mississippi River. The inch miles to the capacity designed carrying a main sufficient is sanitary sewage the and surface take care of all water except rainfall when “run in times of of the district equiva being “run off” inch, one-half off” exceeds ground a rainfall the that is so thor half-inch when lent to longer oughly with moisture it will no saturated the storm water sani the rainfall. When absorb interceptors tary sewage flowing into the exceeds the tWenty-one carrying capacity inch main, the ex is called an outlet seven ditch, into overflows what cess twenty-five top, feet at the bottom, wide feet wide at deep. eight A short distance from ten where feet interceptors, it runs into ditch leaves outlet Spring Branch, and thence into La Croix Painter picks up coming out ditch water This outlet Creek. twbnty-one interceptors inch main after is of both capacity, the overflow, carries consist to its filled sanitary sewage, through Paint ing storm-water TERM, APRIL Cape Girardeau v. Hiinze. Spring er Branch into Creek, thence Mississippi into the River some two-miles distant. The twenty-one carrying’ capacity inch main has of five per designed cubic feet so second, that the sani tary sewage except will not ditch flow1into outlet carrying capacity twenty-one times when the inch inadequate carry system. main is the flow from the interceptors designed settling are not for use as septic designed basins or chambers tanks, but are to col heavy prevent substances so as lect the obstruction of twenty-one designing system, inch main. In fu development growth ture the district taken was engineers. into consideration It was estimated population will an district have using ultimate of 12,- people engineering- an and, established system ultimately formula, was estimated will fully produce, populated, when miximum flow san sewage itary per one of about and one-half cubic feet hypothesis, From such it was second. determined to use twenty-one capacity main, inch which is sufficient carry nearly sanitary four off times amount of sew age expected produced to be in the district when it is populated. fully sewage disposal system
The method used this sewage disposal By known as dilution. method, this sewage sanitary discharged running into a stream body capacity proportion of water of sufficient sewage large of river or storm water to is considered *12 enough not to a constitute nuisance or menace to Respondent public health. offered evidence that disposal exclusively of dilution method is used almost City, Chicago, large St. Louis, Kansas and other cen- population, forty people ters and that about million using, systems, in the United States sewer of per eighty-five dispose sewage by about cent the dilu- Respondent’s tion method. evidence also to tends show parts thirty part that ratio of of water to one do- sanitary, sewage generally accepted by or mestic, san- engineers prevent itary as sufficient nuisance; that OF SUPREME COURT Cape sanitary sewage per
ordinary contains 99.8 cent water per organic matter; .2 dilution cent that with water sewage; organic destroy matter will be- tends up, process dilution; or broken attenuated, come system from into the inter- that when the sewer flow twenty-one passes pipe ceptors inch overflows through Spring Painter Branch from the outlet ditch and Cape will Creek, La the ratio of dilution be into Croix parts part sewage; sanitary water 800- to one Cape overflow reaches La Croix but Creek, after the appellants’ land, before it is sufficient overflow parts part of ratio of is 1600 to one dilution water sanitary sewage, fifty or more than times the dilution prevent flood, in nuisance; that, that will times Cape land, when La overflow Croix Creek will parts of 3,000' 4,000’ of dilution will be water the ratio twenty-one part sanitary sewage; inch to one designed sani- to, will, main conduct the sewer was year sewage underground day tary each Mississippi except rain; times of River, overflow any sewage mat- no will solid that under circumstances deposited upon appellants’ that there land; ter be will grass crops nothing deposited to kill the be thereon sys- produce the discoloration; odors falling designed rain, case of a fast that, tem is so twenty-one capacity carrying tax the sufficient through discharge or overflow main, inch maximum twenty La Creek reach Croix outlet ditch will hours two or three whereas it will take some minutes, Cape falling in the rain same for the water junc- floodcrest to reach Creek watershed Spring Branch, which will with Painter of the creek tion objection- scouring washing all out effect of have the might into creek sewage carried able matter ceases, the rain that, ditch; from the outlet running consider- flood will continue Creek La Croix sanitary sewage flow ceases after able time twenty-one inch recedes into the outlet ditch and main. *13 TERM, APRIL
Vol. Cape Hunze. Respondent’s proof also tends show that several Cape slaughter on are located houses banks La appellants’ sanitary that farm; Croix above Creek slaughter of these are en- bad; conditions houses that permitted decay of animals are to accumulate and trails stagnant ground, pools permitted and blood are that such refuse and remain, and blood into drains throughout sewer creek; district there are that cesspools, open contiguous to, more than one hundred Spring seep and drain Painter into, and which Branch Cape and La and the of those streams Creek, Croix waters drainage polluted by the from these waste and cess- pools slaughter that, and under conditions houses; exist- completion operation ing and before constantly flowing Cape system, into refuse matter is polluting waters, but, its when sew- Creek and existing system goes operation, the will er into conditions sewage pass sanitary improved greatly and into will analyses only heavy rains; the stream in time of that points samples along different of water taken from appellants’ including completion farm, before creek, system, operation B. showed C'oli of the sewer although rendering organic use, it unfit human matter, safely water; used as use it could be stock at of rain- for a sewer outlet times watercourse remedy worse, fall will not but should make conditions improve existing conditions. Appellants’ all evidence tends show system, sewage brought by storm water down twenty-one pipe, away inch will carried Cape Creek; into La Croix down ditch flow the outlet system running capacity, at full the sewer that, when pass gallons only will out about six out of thousand twenty-one pipe through balance of the inch and the Cape sewage pass La Croix into storm out will water Creek, flows La Croix Creek; very banks are and its crooked, farm, places grown up the stream brush, and some dry places deep; is shallow and other SUPREME OF COURT *14 pools; sewage times it stands in that the will set- deposit along tle and the banks of the stream will and caught by along’ be the brush and trees, fences the banks pools; existing deposits and in the that these will be de- organic caying produce matter and will odors.; offensive grease that oil and mix from kitchens will not with water and there will be no dilution of that that matter; oils and deposit appellants’ fats will and accumulate on lands germ growth; and become media for and bacterial that typhoid period bacilli will live on such matter for a eight power produce ten months and retain the to typhoid pollution only fever; that the creek water', the prior operation system, to sewer is is what ground washed in the Ua Croix Creek watershed, and small; that the amount thereof system completed operation after the sewer and sewage larger it will tend collect in much amounts, pollution that, and greatly therefore, of the creek will be existing Appellants’ increased over conditions. twenty-one further evidence tends show that, after pipe along inch sewer has been constructed the ten and strip ground likely one-half foot of land, the will settle plan laying twenty- in; and that the cave calls for pipe eight ground one inch feet below the surface of the constructing every ap- and for manholes feet 400' across pellants’ aor total of seven land, manholes; that these brick and from six inches .manholes made of extend ground to one foot above the surface of the and are twenty-four top; diameter at inches in that the man- plow- will be and will holes interfere obstructions ground, ing harrowing use of farm and the machinery soil thereon; non-arable from ten placed ground feet under will be on the that the surface,; pasture being in timothy land is then for used requiring up disturbed, that the surface be torn will long time before it be used can or cultivated. Appellants’ market witnesses fixed the reasonable appellants’ improvements value of farm $200 per aggregate $64,000 acre, $72,000, $225 or an value TERM, 1926. APBIL Vol. v. Hunze. damage, in the or decrease estimated of the several reason farm,
market value
sought
from twen-
condemned, at
taken
to be
or uses
per
ty-five
thirty
market value.
then
cent of its
strip of land
Bespondent’s
that the
evidence shows
twenty-one
six-
main contains
inch sewer
for the
taken
strip
end
opera-
the north
crosses
acre;
an
tenths of
subject
after
that,
overflow;
farm and is
necessary
men to
two
it will
sewer,
tion of
cleaning
go
purpose
the sew-
manholes
into the
year.
perhaps
also shown
It
er
each
was
once
specifications
construction
for the
contract and
replace
require
the soil
the contractor
found.
strip
*15
in which
condition
the same
of land in
ap-
of
value
Bespondent’s
market
the
witnesses fixed
per
whole,
acre as a
pellants’
to $150
farm at from $125
twenty-one inch
for
the land taken
the value of
damage
$175'per
The total
acre.
from
sewer at
$150
rights or uses
of all
appellants’ farm on account
respondent’s
by
wit-
fixéd
condemned was
taken and
$1,000.
at from
nesses
$50
appellants,
assigned
which
by
are
Numerous errors
by
order.
in their
us
and ruled
will
considered
be
beginning
ap
of
I. At the
the trial,
counsel
pellants,
jurors:
inquired
any
you gentle
of the
“Do
of
property in
men own
Sewer District Number Five?”
(not
by
record)
jurors
A number
shown
an
Whereupon,
in the
swered
affirmative.
counsel for
'
Jurors.
objected
jurors
appellants
who are
of
residents
the reason that
district for
interested,
££
replied: Objection
thereupon
overruled.
court
may
refusing
the action of
show
the court
record
taxpayers
residents and
excuse
dis
Exceptions
duly saved and
trict.”
were
as
ju
sign
refusal
trial court’s
to excuse such
error
argued by appellants
panel.
from the
It is
rors
property
jurors
in the sewer
have
who
district
those
own
special
peculiar
interest
in the
financial
outcome
456
SUPREME COURT OP MISSOURI,
of
of
acquiring
case in
way
that the
cost
system paid by special
the sewer
tax levied and as-
property
sessed
the real
within the district.
At
tax-paying
common law, inhabitants and
citizens
municipality
incompetent
aof
held
be
to sit as
were
jurors
party,
municipality
in a cause wherein the
was a
though
being
because of their interest,
remote,
com
pelled
any
payment
to contribute their mite to the
judgment
against
municipality.
obtained
A number
early
recognized
decisions
this court
and adhered
[Eberle
rule.
common-law
Louis Public
v. St.
11
Schools,
247;
Mo.
Fine v.
Louis
Schools,
St.
Public
30
166;
Mo.
Rose v.
Charles,
509;
491Mo.
Ful
St.
early
479.]
weiler v.
St. Louis,
Since those
de
Mo.
Legislature
(Sec.
cisions,
has enacted a
6637,
statute
1919),
provides:
brought
R. S.
“In all
actions
against any county
city,
or
or
inhabitants
county
suing
being
may
jurors,
or
so
be
sued
competent
qualified.” Appellants
otherwise
insist
foregoing
derogation
statute is in
common
strictly
law;
Legisla
and hence must be
construed. The
(Laws
p.
repealed
324)
ture,
however,
our
relating
former
statute
common
law
enacted
provides:
new section
thereof
lieu
“.
.
.
Assembly
but no act
General
law this State
scope
shall
held
invalid,
to be
or limited in its
effect
State,
courts of this
for the reason that the
*16
derogation
may
same
inbe
or
of,
in conflict with, such
common
such
law, or with
or
statutes
acts
Parliament;
Assembly,
all
but
such acts of the
laws,
General
or
shall
liberally
construed, so as to effectuate the
intent
true
meaning
1919.]
[Sec.
thereof.”
7084, R. S.
Priddy
In
v. Mackenzie, 205 Mo. l. c. 195, we said:
repeatedly
has,
“This court
however,
held in actions
ag’ainst
tax-paying
counties
cities that
inhabitants
competent jurors
thereof are not
on account of interest
'(Citing cases).
(as)
in the
And
such
was
cause—
jurors
law; of this
in
far
State
as
so
were concerned un
by express
changed
til it
in
[R.
was
statute
S.
APRIL TERM, 1926.
p.
1855,
9.]
that stat-
503, sec.
Since
the enactment
jurors
qualifying
probabilities
ute
in such
cases,
length
go
courts
...
as
would not
to the same
jurors
this court
in
were
went
cases
held
disqualified.
may,
But be
this
the cases
as
high degree
State
.
.
.
show the
of disfavor
upon
which
parties.”
by
the law looks
trials
interested
conducted
by
Our attention has
directed
counsel to
not been
any
referring
construing
other decision of this court
qualifies
to our statute which
inhabitants
jurors
against
city.
brought
as
in
such
actions
jurisdictions
Similar statutes of
been uni
other
have
formly upheld
liberally
[16 R.
L.
construed.
C.
Paving
279;
v.
Co.,
State
& Construction
Va.
95 W.
E.S.
173;
Wichita,
Wichita Water Co.
v.
City Minneapolis
“Q. know, Do disposal plan sewage of that district? for the the A. it. I am Somewhat. familiar general you plan outline of the “Q. Do know sewage taking A. Yes. in that district? care of the study you a make “Q. In what connection did study Hawley? plans, brief A. I those Mr. made a nothing bidding but on the work, them with a view to extensive. subsequent any you to that time made
“Q. Have investigation A. them? I looked them further over a little one since then. time (cid:127) was A. In December. “Q. When that? you did at
“Q. connection have with them What you study make A. I of them? the time that led go appointed on the commission the Hunze was land. appellants’ counsel): Object, “(Mr. Spradling, because defensive and out, that be stricken
ask highly prejudicial. Objection overruled. To which rul- “Ti-ie Court: exceptors by
ing their counsel then and of the court duly excepted.” Later on witness testified fur- there ther : Hawley, you will
“Q. Mr. I ask state Now, your opinion an.engineer or not in whether and from your you plan investigations have made of the city, your sewage disposal in this for District No. 5 way plans investigation affect the Hunze those will damaged those lands be or not will lands, whether and, so, ex- this sewer construction what result damaged all A. don’t think will tent? I into Creek. I believe there the flow damage thirty pipe reason of the inch will be some crossing nearly land. mile of Mr. Hunze’s half opinion your dam-
“Q;. Tell the what age A. It a little bit hard to. arrive amount would merely damage It farm at all. the whole It does not at. eighty of it runs the north end acres APRIL TERM, *18 y. City Cape Girardeau Hunze. through, say that is come; I would for all time to n
perpetual and I maintained, work there that has to he say would six or seven hundred dollars he a would ’’ damage part that farm. reasonable to Hawley Appellants concede in their that Mr. brief competent fact case, “was this but the witness, assessed he one of the commissioners who had was damages not have sustained defendants should directly indirectly, go perrpitted, been either jury.” 326, In Louis v. l. c. we said: “It Abeln, St. 170 Mo. assigned com is also for error that the court allowed the testify witnesses. missioners to called and We competent why see no reason commissioners disqualifying witnesses in There no statute such case. principle allowing them, and them to tes no violated tify. sug appellant . . . Since the able counsel for gest authority support of this no reason and cite no assignment, reason nor au we are neither satisfied thority for it can be found.”
Appellants rely mainly upon School District v.
Improvement
&
Phoenix Land
Co.,
suggestion and an- trial court last jury the tes- withdrawn, after the had heard were swer speak- timony. Two of court, Division this case, In that opinion ing said: are of “We C., Raiuey, competent McElroy case, witness in this Mr. was who one of commissioners but the fact that he was should sustained defendant had assessed directly indirectly, permitted, either not have been jury. go when a stated, heretofore ... As report jury defendant, the the com- trial awarded was everything they had become missioners, did, functus trying kept been from the have and should officio, *19 opening Keeping the state- . . in mind case. . this quoted, part plaintiff’s heretofore counsel ment of objected decidedly of we are time, of to at the was testimony McElroy opinion Mr. com- of the tliat the rights only prejudicial of plained de- to the not of was principles disregard of the fendant, but admitted dam- cited. Where in the cases heretofore law enunciated gone improperly testimony aging of this character has justice can jury, only way in which substantial the the to ’’ grant new to trial. be administered is one the commissioners In the case, latter cited by expert condemnor, the an witness was called as report repeatedly advert- commissioners was purpose refreshing his and referred for ed. taken. In that value of the land recollection to the speaking court, this division our for J., case, Graves, there was error next insisted that said: “It testimony Truitt. This of the witness admission He have one the commissioners. witness was seemed by independent the value fixed recollection of had no trying plaintiff was for Counsel commissioners. having by him refer recollection refresh the witness’s report. for de- It counsel . . . clear being objecting made the use which was fendant was an report, ex- the recollection i. to refresh e., of this report pert so used. was It witness. is clear that doing of that so the substance is further clear that It TERM, APRIL jury. report report proper- was before was ly expert expert refresh witness. An testifies used to things knowledge, expert gives within his own his opinion hypothecated upon a state of facts. There is no refreshing for the recollection such a witness. reason Upon the the examination of this was im- whole witness proper, prejudicial error.” and constituted readily distin cited cases are
'We believe afore guishable reading A from the case bar. careful in the instant case fails disclose reference record report slightest suggestion to the commissioners’ or the report respecting intimation contents of appellants’ the amount assessed commissioners ap hereby. reason of the taken It parent Haw influenced witness were not assessing ley’s testimony, a verdict returned appellants’ damages amount the more than twice the at appellants there If would sustain. witness testified had (and think we error in court the action trial none), reversi harmless, and hence not there was was City of St. [Sec. 1919; ble R. Green error. S. 454.] Mo. Louis, supervis respondent’s witnesses,
III. One of testify, city, permitted ing engineer over was specifications objections, con *20 require the con the sewer tract for the construction of replace the which land, to tractor Replacing Surface. underground across main in condition same in the laid, be farm is to right, protect the con that, such to it, he finds city, put up out required a bond with tractor is year, if the may the land within restore tes of that The admission so. not do does contractor appel ground that assigned on the timony error is requirement, on by the contract bound are not lants respondent ground not entitled that the further money. In anything- but damages in pay assessed borne mind assignment be ruling it must this 462 SUPREME COURT OP MISSOURI,
City of seeking right to condemn the to disturb the sur- right-of-way only up January face 1, 1924, go right upon thereafter the only the surface so far repair as the maintenance and of the sewer necessitates. Corpus page In 20 Juris, 766, the text-writer an- general “Any this rule: nounces which, fact reason property of the conditions which the is taken, or the improvement character of the or the manner in which it or the nature made, and situation of the land taken or residue, to ameliorate, tends counteract, diminish, mitigate, accruing or reduce otherwise may properly landowner, considered in favor of appropriator damages, although in the assessment of necessarily accruing the benefit is not one from the con- improvement. sought struction if the Thus, use appropriated to be ais restricted or limited use one which will still reserve to the landowner some property affected, such fact should be considered in assessing damages.” Knapp- St. Louis Railroad v.Co. Railway Co.,& Stout 396, Mo. and St. Louis Co. v. Clark, Mo. seem be 169, consonance with the rule announced. We see no reversible error in the re- ception testimony. of this assigned respondent’s permitting
IV. Error is sanitary existing witnesses detail conditions slaughter prior on houses Croix Creek filing report January date of 18, the commissioners’ on 1923. general is well Of settled in “as course, this State taking appropriation
rule is fixed report the date the commissioners make their damages, condemning party and the pays unsanitary such sum into court for the benefit o~ Prior conditions. [Kansas the landowner.” Southern Railway Improvement Co., 256 Mo. l. c. 407, Co. respondent by at However, there showed cited.] cases slaughter who witness, least one visited the houses day March, trial in a similar before unsanitary then at' location condition existed *21 TERM, 1926. APRIL v. Hunze. proof of the existence Creek. Besides, particular a reasonable fact at a time within or condition gives it continues limits., inference that rise to the contrary. proof [22; J. C. exist, the absence 86.] pollu- appellants But furthermore contend by persons does tion of this stream other and third paying polluting justify the stream without may compensation. evi- we think the be, However complained purpose for the dence enabling of was admissible any, additional to- determine if what, city’s use contamination will reason result of. thereby determine outlet, the stream as any, resulting damages, con- the- from such additional us that for it clear to cannot tamination, seems respond (at con- be made in this least proceeding) the contamination of demnation for slaughter offending stream houses. owners of Appellants V. one who Carter, offered as witness price agreed pay for a tract of was asked what he had pur adjoining appellants, evidently land for the that of pose establishing market value land. proof, appel rejected The trial this offer of court assign recently ac Asked if had error.. he lants quired any property adjoining real the Hunze Marketvalue. replied: have “I not closed the land, witness ' dickering.” up, In view of the fact trade but we are still purchase for had not contracted witness rejection adjoining see reversible error in we no land, proferred testimony. negotiation pur Mere may property, chase of never result in does sale, criterion for not establish an accurate its. market basis witnesses, value. showed, other Besides, agreed price pay that witness Carter had thereby adjoining get in effect succeeded land, rejected substantially parts ting tes the material jury. Appellants timony in no are, before the therefore, SUPREME COURT OF *22 Cape of Girardeau v. Hunze. position complain assigned. to of [Baker the error Contracting 282 685.] Co., Mo. Appellants assign giving
VI. error in the on be- respondent half instructions numbered 2, 3, 4, necessary and 7. It therefore becomes for us to-state substance of those instructions-. respondent’s charged jury
In Instruction 2, the were fixing just compensation “in that to be allowed exceptors acquisition by right for the said strip in the petition ten-foot of land described in the you referred to in the evidence in this case, Instructions. exceptors- shall award to the reasonable acquired rental the land for the time value plaintiff city proposes namely, use it, from the date report until-,January the commissioners’ 1, 1924, you may re- find from the will evidence exceptors’ remaining said sult to land on account of period, damage, any, use for such you may and such further if find from result believe the evidence will exceptors plaintiff of account of the use strip said-ten-foot repair for the construction, maintenance and twenty-one pipe.” of said inch sewer By respondent’s in- were 3, the Instruction fixing compensation structed that, to be allowed Cape acquiring La use “you system, Croix Creek as an for the outlet sewer guided by rights- concerning shall law be ripa- riparian streams, owners that law adjoining rian an owner, is, stream, owner of land the water cannot insist of that stream come shall pure state, him in a but he natural, must submit to the drainage coming from towns, natural wash and cities and you you find from instructed that believe plaintiff in this' case in the construo evidence system sewerage tion ac- of its Sewer District No>.5, plan cording to case, same evidence in this Cape La will not cause the waters of polluted be Creek to beyond pollution the extent their APRIL TERM, 1926. Cape drainage going injto natural wash and Lia said opening system Croix Creek before said sewer ¡it prior rendered unfit for more use than wasi con- sewerage system struction said and that said use damage exceptors’ said stream any will farm, not be of exceptors damages- then the are not entitled to on that you but if account, believe find from the evidence system that said will cause said the waters of polluted Croix Creek to become more or to damage rendered more unfit for or cause increased use exceptors’ *23 receiving farm than are while nat- the drainage prior ural wash and into said in- creek system, you may stallation exceptors said sewer then award damages you may they such as think en- are by you titled to reason but thereof, are further instructed damages you may to from deduct the total re- find will exceptors’ sult to entire tract the of land on account of system construction and maintenance for of said sewer any, city, 5 District Sewer No. in said the benefits, peculiar arising to the whole tract from construction, the operation system.” and maintenance of said sewer
By respondent’s jury Instruction 4, told the were proof exceptors, the that burden of in the ‘‘ this case prove, by preponderance to a evidence, by exceptors- damaged tract of land owned will in special any, may excess of the benefits, if that accrue by it reason of the construction maintenance of sewerage system according Sewer District No. plan for same introduced in evidence this case.”
By respondent’s jury Instruction told 6, were exceptors, damages “that cannot recover Cape that mere fact Creek to be used is- as City Cape sewer outlet Sewer District No. 5 of the you exceptors, Girardeau cannot find for for dam- ages you on that account alone unless find and believe from the evidence waters of said stream will be they present rendered more for use unfit than are at the ’’ time. OP SUPREME COURT Cape v. Hunze. Respondent’s “that 7 told the Instruction right use same Girardeau has right purposes, including La Croix for its Creek has,the exceptors use said outlet, use it as as purposes, sub- thereof for their stream and the waters ject, restriction to so exercise however, respond damages in to not create as a nuisance by pollutes the wat- the event the use same so deprive exceptors the uses ers of the stream as to enjoy they for the' use of the water would were by an District said outlet for Sewer said stream No. 5.” quoted
Appellants instruc- the above contend request respondent given trial court tions, the- damages, and, all of which bear measure: appellants’ recovery to erroneous because limit physical damages actual and exclude other items of dam- age, particularly depreciation exclude the in market value of farm herein reason Appellants say true taken condemned. proceeding, all con- measure in this proceedings part only demnation of an owner’s where property taken, as laid this: Louis down court St. Railway Knapp-Stout Co., Co. v. & 160 Mo. *24 cited was other “the difference between what cases, is property value of the whole be- fair market tract or appropriation, fair market value fore, after, and its the(uses view of land should in thereafter be condemned
applied.” gave trial certain instructions however, court, The appellants. By request on behalf and at the one charged jury instructions the those were under the that, private property Constitution of this State, cannot compensa- damaged for,public just taken or use without being paid this tion proceeding to the owner and that the following prop- and taken condemned the
has erty (1) appellants: .right strip of to use the January purpose of land until 1, 1924, evidence maintaining constructing twenty-one and sewer inch AEEIL TEEM, Girardeau v. Hunze.' pipe, appurtenances strip of manholes across said (2) permanent right land; or easement in said land twenty-one pipe, appur- said inch sewer manholes and (3) permanent right tenances; said to enter pipe, land to' maintain said 21-inch sewer manholes appurtenances, right reserving to said landowners the to use January the surface of 1924, said land after long so prevent said use does not as interfere with or maintaining repairing said 21-inch said pipe, appurtenances; sewer (4) the manholes and to use the watercourse of Croix Greek public for a drain or sewer de- route, as-mentioned and proceeds scribed in evidence. The instruction then damages state the property measure of for the described so assessing taken and condemned, follows: “In just compensation paid damages, any, if. to be exceptors you these should allow difference them the exceptors’ between the fair market value of tract whole property before and its fair market after value appropriation city Cape prop- Girardeau of the erty rights, or uses men- and easements hereinbefore considering tioned and the uses to which condemned said property applied. determining be hereafter In compensation exceptors amount of to which are entitled the should fair ascertain, first, property rights, market value of uses actually easements condemned and taken, and, second, any, the diminution in if ex- value, of the remainder of ceptors’ taking whole farm as results rights, easements and uses before mentioned, total amount found account of on these two less items, special peculiar any, the amount of the if benefits, resulting exceptors’ to- land on of said account plan, exceptors will be the amount to-which entitled, equal by you and it should be to the amount found any, excep- fair decrease, in the value of market property taking tors’ whole account of the *25 rights., and easements uses hereinbefore mentioned.”
.468 OF SUPREME. COURT v. Hunze. instruction, is value” term “market By another the specifically defined. misdirected
In whether were jury the determining' the all the we damages, measure of think that of both on behalf given, including’ those instructions, considered must be read and respondent appellants; jury, the together complete, charge one and entire con- not provided, they misleading, course, contradictory. Rail- Great Western fusing [Chicago Let 279.] road Co. v. 256 examine Mo. then Kemper, us de- the several instructions for respondent’s purpose of all instructions whether, light the termining con- can said to case, they misleading, be given contradictory. fusing
Respondent’s Instruction deals the matter to be damages compensation appellants allowed account of the of certain de taking across for scribed the 21-inch sewer strip main, of land manholes In appurtenances. substance it told the jury shall the reasonable rental value award to the land time which acquired plain temporarily it i. from the date of absolutely, e., tiff to use proposed ’ (be 1,1924, report commissioners until January from the jury might find sides) damages land evidence will be remaining result page cause In 20 temporary Corpus Juris, of such use. not taken, thus stated: “Where land is rule is use, be held but permanently, only temporary value, market but compensation measure is for the time during what worth fairly property is proper the same rule where applies held, injured. The no ty, part temporarily which is taken, compensation held, determining criterion for value of Our property.” be the rental some cases, rule. foregoing followed own court to have seems 282; St. Louis McGrew, Mo. Co. v. [Chicago Railway told instruction furthermore 545.] The Brown, 155 Mo. further should award such that they e re- the evidenc will believe they might find and *26 APRIL TERM, Vol.
City Cape v. Hunze. of appellants respondent suit on account of use of strip land construction, said for the maintenance and repair pipe. nothing of said 21-inch sewer We see mis- leading, contradictory confusing in this instruction all in the when read with the instructions case. Respondent’s instructions numbered and 7 have 3, 6 rights acquired by city do with to use the Cape known La as watercourse, Creek, natural as Croix. system, with an outlet for the and deal the sub- ject alleged resulting from use. It is such petition upon proceeding condemnation this city necessary finds it was tried that “the said acquire the natural construction said sewer water- purposes public for hereto- courses drains outlet as evidence adduced described,” fore and the shows public watercourse La Creek is a natural Ca]oe Croix length flowing through of, some a section eleven miles corporate Cape of, Girardeau, and within the limits Cape junction Spring La Branch Painter corporate of that limits Creek is within appellants’ farm, above and some distance Croix, way into to its mouth Creek flows on the Mississippi be well said it cannot Therefore, River. appellants of said natural are the absolute owners riparian they.are merely owners watercourse, are stream the waters said of, and uses in, their ownership. subject principles riparian such As remedy riparian must without owners, endure way impurities pollution into find their as such stream from drainage sit- of a wash the natural riparian other of the lands of its uated banks [1 upper stream. said within the watershed owners 77.] Ed.) p. (3 sec. 82, Domain Lewis Eminent Hagen, Valparaiso 341, 153 Ind. In large riparian municipality sense “A said: it is They corporation. proprietor. Its stand officers provide empowered by and enforce san- the State to are preservation wel- itary of the health and for the measures corporation public. has the same fare of SUPREME COURT OP aggregation, possessions, enjoy anas exist and to its person. may open improve a natural ... It gutters, waterways, streets, construct sluices and storm water carries into these latter the multifarious garbage places populous filth and incident and.bears away by general the same natural channels to the water- rig’ht per- municipality course of the basin, the though mit it will be doubted, even waters thereby polluted stream so to render them un- *27 ordinary fit for uses. And wherein have the dwellers ground complaint? only They below of have suffered they reasonably expected that which should have and es- acquiring property. question timated their self-preservation. rooted in the natural of law And if permitted by allowing cities all to adulterate streams accumulating impurities by surface to flow them into perceive why underlying channels, natural we do not principles deepen will not allow them to these natural storm and them channels transform into covered sew- why protect nor ers, the health welfare public against of the of one class noxious matter should equal not be extended to all And, classes virulence. regard be while action taken with a for cautious must rights of those it has be a below, come to scientific fact, accepted, generally the minimum of may mischief result- ing early from closet contents be attained an dis- patch through flowing medium of water, wherein sol- purification ids are dissolved and chemical action ’’ speedily place. takes Joplin Mining Joplin, In Consolidated Co. proprietor 124Mo. has “The 129, 135,this court said: land which a cannot stream flows insist that pure the water shall him iii state. natural, come compensation, He submit, must that, too, without upper proprietors; the reasonable use drainage he must com submit the natural wash and ing from towns and cities.” respondent long
It that, would therefore seem so Cape does not La make use of to de- Croix Creek as .471 TERM, APRIL Cape v. Hunze. riparian prive appellants their that stream, they subject ri- have, reasonable use of the parian including city owners Girar- above, appellants compensation no have claim for or dam- deau, city ages. In words, other does not cause the waters beyond polluted the extent Creek to drainage pollution natural of their from the wash and upper proprietors coming before the- from system, opening un- or to be rendered more of the sewer prior to fit for use than waters were the construc- such no lawful claim for have sewer, tion damages. compensation Ample was offered evidence tending the creek trial to show that waters of polluted reason natural contaminated were slaughter drainage its watershed wash and fromi gutter drainage, open cesspools be- houses, and street proposed operation of sew- the construction fore system. must however, the hand, er On the other respond damages in use creek event that its pollutes the same more thereof as to render so waters prior construction than were unfit use pollutes operation system, the stream so the sewer *28 they deprive appellants of the water the of the uses as to enjoy. principle reasonably is rec- otherwise This would Jop- Mining City Joplin of ognized v. Co. in Consolidated city has no supra, “But a wherein we said: lin, gather sewage together so it into stream cast its damages injure proprietor. For thus sus- as lower proprietor have an action.” will lower tained, respondent’s 7, 6 and 3, instructions think that 'We Cape proposed La Croix of uses all deal with of which relating correctly the law state outlet, Creek, a as together riparian read and, when owners, of to the conjunction appellants’ in- own when read in damages, are con- the measure of struction on contradictory instruc- misleading, other fusing of instructions all of words, in other tions the case. In complete and entire together aas in case, when read SUPREME COURT OF Cape of v. Hunze. charge jury, proper guide to the jury furnished a damages. on the measure of
Appellants respondent’s criticize 6, Instruction be- say) (they only possible cause age it assumes that the dam- appellants’ farm is reason of the waters of Cape being Lia Croix Creek rendered more use, unfit thereby excluding damage other of elements shown in deposit evidence, such as on land of sew- age, greases, sediments, oils will odors, cause leave stains and discolorations, and as serve media for growth of bacilli. We think that such elements of damage fairly reasonably comprehended within the words “more for use” as unfit used said instruc- tion.
Respondent’s Instruction 7 criticized is because it is respondent said to assume that is owner of a domi- city nant estate, there is evidence whereas no the owner of a dominant estate. evidence show, does however, that La Croix Creek flows drainage Girardeau, and the natural of a section of that into creek. said said in As Valparaiso supra, Hagen, municipality large “a riparian proprietor.” ,regard is a sense We the criti- hypercritical. cism
Appellants complain respondent’s Instruction wherein “that were instructed burden proof exceptors by pre- prove, case is on this ponderance evidence, that the tract land owned exceptors damaged special will be excess any, may to it benefits, accrue reason of the sewerage system.” construction and maintenance proof It the burden is asserted that proof special, pe- and the burden of respondent, appel- hence, benefits in on the culiar, and, required prove properly lants are not that the dam- ages If instruction the benefits. this had been the exceed *29 might upon proof, only one of be some the burden there However, basis for contention. the trial gave of court instruction on behalf an TERM, 1926. APRIL. you anything told the that “before can deduct exceptors’ damage, any, special peculiar if or bene- you fits must find and believe from first the evidence in exceptors’ property case that the this remainder of not peculiar taken receive direct will benefits from the plan sewerage construction of the No. said District special peculiar 5, and benefits are meant such general benefits not common or other lands in community, you the same are further instructed upon Gape the by dity burden is Girardeau to show preponderance greater weight testimony special peculiar any, will 'benefits, accrue exceptors’ property.”' (Italics ours.) to the remainder of We do deem the two instructions burden of proof contradictory conflicting. They to be substantial- ly ruling Railway accord with our Louis, etc., St. Co. Knapp-Stout v. Co.,& Mo. We no reversi- find giving assign- ble error in the and the instructions against appellants. ment be must ruled assignment Appellants’ VII. final that the trial against ap taxing court erred of the trial costs pellants. (Sec. 1919), The statute R. under 8363, S. ‘ ‘ proceeding provides: pro had, this The cost paid up be in shall ceec^iaS’s Costs cluding the'report filing copying any commissioners, and the as to cost made court, subsequent may litigation, dis make such order as in its just.” may foregoing special cretion deemed relating general statute is identical with statute proceedings by corporations. [Sec. condemnation 1919.] R. S. held that Under latter statute, we taxing filing re the commissioners’ costs after the port court, the trial will in the rests discretion an of discretion. not be there disturbed unless abuse 549.] [Chicago Railway Elliott, 117 Mo. Co. *30 SUPREME. COURT OF
Laughlin v. Wells. We find reversible before us. no error tbe record judgment tbe be Therefore, affirmed, nisi must and it Lindsay, so ordered. concurs. foregoing opinion by PER CURIAM:—The Seddon, adopted opinion
C., is as tbe tbe court. All of the judges concur.
HENRY D. Receiver WELLS, LAUGHLIN v. ROLLA Railways Appel- Company Louis, United of St.
lant. May One, 24, 1926.
Division Pleading. Estoppel defense, 1. ESTOPPEL: is an affirmative when pleaded party desiring concluded not to use it as defense is a plead his his answer failure to it. Where defendant where in no plaintiff’s petition ejectment by reason avers that facts pleaded plaintiff estopped up right possession setting his estoppel land, pleaded facts not and the so do constitute theory estoppel. pais, plaintiff’s he cannot defeat action on the -; Damages. Improvements: Ejectment: Railroad: Lease: 2. it, dol- an annual rental' of one Where of land leased owner time, lar, company, used for a be for an indefinite railroad “to railroad,” operation trolley purpose line limited notice, giving of a six months’ lease to be terminated ejectment given, lessor’s recover in an,d such notice was theory saw the that he stood be on cannot defeated money building company expend large tracks across sums of company on; encourage land; contrary, did not where he land, improvements of the he entitled to benefit make lease, for unlawful will be remitted' of the terms withholding. taking or grounded estoppel Knowledge: Equitable Lease. -: cannot parties; knowledge where equally of both within the on facts plain company enter into land a railroad the owner of lease, unambiguous construc- the land for the use of written it, thereon, trolley act under both and both railroad line tion of facts, each are to be cognizant equally and the lease. the terms determined