88 Mo. App. 279 | Mo. Ct. App. | 1901
This is a suit for damages for maintaining a nuisance.
The petition states that plaintiff is the owner of certain real estate in the city of Kirksville, Missouri, on which there is a building in which he and his family reside; that the defendant has so constructed one of its sewers that its outlet is into a small ditch which, in its course, passes through plaintiffs land; that said sewer empties its noisome contents of filth into said ditch which carries it upon the plaintiff’s premises, and that the plaintiff’s property has been rendered unfit for residence property in consequence of the filth being eárried upon same, by said sewer and ditch. He asks for permanent damages in the sum of $1,000.
The defendant admits it is a municipal corporation and a city of the third class; and denies all the other allegations of the petition. The cause was tried before a jury and verdict returned in favor of the plaintiff for $600 upon which judgment was duly entered, from which defendant has appealed.
There was evidence both pro and con as to whether the sewer and ditch were a nuisance to plaintiff, but as that fact was a question for the jury we will give it no further notice.
The defendant and appellant contends that the plaintiff' was not entitled to recover, for the reason that the defendant city had no jurisdiction of the subject-matter in suit, that the matter complained of was the result of unauthorized acts of city officers, which acts were not the subjects for ratification unless by city ordinance.
Under sections 5847 and 5848 of the present revision of our statutes, cities of the third class are authorized to establish a
The City of Kansas v. Swope, 79 Mo. 448, was a case upon a similar state of facts. In Rumsey Mfg. Co., v. Schell City, 21 Mo. App. 175, it was sought to hold the city for the price of a fire engine which was purchased without the passage of an ordinance to that effect. In Thrush v. City of Cameron, 21 Mo. App. 394, damages were sought to be recovered against defendant city, for injury occasioned by a barbed wire fence having been erected across one of the streets in the city. The fence was erected by the street commissioner without authority of any ordinance. The court held that the act of the street commissioner was not the act of the city, and for that reason could not be held liable. Here the city had authority to construct sewers, and the fact that the one in question was not a part of a general or district system can make no difference. The city of Kirksville, in constructing and maintaining the
Cause reversed and remanded.