Foncannon v. City of Kirksville, 88 Mo. App. 279

Foncannon v. City of Kirksville

88 Mo. App. 279

Mo. Ct. App.

1901

Check Treatment

BROADDUS, J.

This is a suit for damages for maintaining a nuisance.

Thе petition states that plaintiff is the owner of certain real estate in the city of Kirksville, Missouri, on which there is а 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 whiсh, in its course, passes through plaintiffs land; that said sewer empties its noisome contents of filth into said ditch which cаrries 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 deniеs all the other allegations of the petition. The cause was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tried before a jury and verdict returned in favоr of the plaintiff for $600 upon which judgment was duly entered, from which defendant has appealed.

There was evidеnce both pro and con as to whether the sewer and ditch were a nuisance to plaintiff, but as that faсt 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 nоt 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 *283system of sewerage; under section 5847 a system of genеral sewerage is provided for, and section 5848 provides for district sewerage. It is claimed that as there had been no system of general sewerage established, the erection of one in question was unauthorized; and that in order to give the city any power or right in that matter the sewer must be a part of a general system. In supрort of this theory we are cited to many cases. We have examined them and find that none of them suppоrt such a theory. In Bayha v. Taylor the suit was upon a tax bill and the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court held that as the charter of Kansas City requirеd that a district sewer should connect with a public sewer or other district sewer or with the natural course of drainage, that plaintiff could not recover on his taxbills because the ordinance authorizing the construction of the sewer for the payment of which the taxbills involved were issued, provided for its connection with a stream or ravine. Under the facts therein stated the court held that the ordinance being in conflict with the’charter, it was void and no right could be predicated thereon.

The City of Kansas v. Swope, 79 Mo. 448, was a case upon a similar state of facts. In Rumsey Mfg. Cо., 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 passagе of an ordinance to that effect. In Thrush v. City of Cameron, 21 Mo. App. 394, damages were sought to be recovered agаinst 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 ordinanсe. 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 quеstion was not a part of a general or district system can make no difference. The city of Kirksville, in construсting and maintaining the *284sewer in question, was acting within the scope of its authority and is civilly responsible for damages occasioned by its ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act, which were in the nature of a trespass, done by its command, by its agents. Dooley v. City of Kansas, 82 Mo. 444; Allison v. City of Richmond, 51 Mo. App. 133; Hunt v. Boonville, 65 Mo. 620; Thompson v. Boonville, 61 Mo. 283; Soulard v. St. Louis, 36 Mo. 546. The act of the city in constructing the sewer in question was not void but irregular, and its direction to its officers аnd agents to construct the same without an ordinance to that effect, was not authority for their action thereon, yet the city by accepting and paying for the sewer validated the acts of its officers and agents in the premises. Water Co. v. Aurora, 129 Mo. 583; Devers v. Howard, 88 Mo. App. 253; Dooley v. City of Kansas, 82 Mo. 447. The most important question in the case is the measure of damages adopted by the court in the admission of evidence, and instructions to the jury. The court instructed the jury if they found for the plаintiff the measure of damages was the difference, if any, in the market value of the land and improvements before the sewer was extended or built, and the market value since. “In an action for negligent injury to real estate, the rule of damages generally adopted is to allow the plaintiff the difference between the market value of the land immediately before the injury occurred and the like value immediately after' the injury is complete. But it is obvious that this rule has no application to such nuisances as may be removed the day after thе verdict or for a continuance of which a second or third action may be maintained, or which may be abated at the instance of the injured party, by the order of a competent court. Brown v. Railroad, 80 Mo. 457; Penney v. Berry, 61 Mo. 359. The nuisance here complained of is not a permanent one and may be removed, and is subject to abаtement by the order of a competent court. Therefore, the instruction of the *285court ou the measure of damages, and the admission of evidence supporting the theory of the case contained therein, was wrong and in conflict with the authorities last cited. We believe that we have disposed of all the points of importance raised in the case.

Cause reversed and remanded.

All concur.