*1 purpose being Wagner clearly identify its as rel. v. St. Louis should State ex validity 592, constitutional consideration the Authority, 604 S.W.2d County Port proposed of the bonds issued (Mo.banc 1980) it noted that “the brought in by parties the real should be us the has come for to reexamine time interest. entertaining friendly quo practice of war- issuing proceedings ranto where the bond appellants’ presents 22 The brief authority in interest party is the real ...” claiming points the as a basis for Rendlen, (Welliver, J., dissenting, J. concur- question in are unconstitutional. statutes ring). simply The trial court entered an order petition quo The for warranto herein is petition The denying quo the warranto. petition quo identical the warranto parties appealing on the to dem burden is by parties on filed in the same this Court us we onstrate error. On the record before 7, 1984, No. 66070. In our discretion June the are persuaded are not statutes 17, petition July on 1984. we denied that trial or that facially unconstitutional now only we have dismissing petition. difference what We court erred matter has possibility us is that the same been of further before do not foreclose the partic County challenges varying of Cole based on facts of filed the Circuit Court ular cases. without that court “denied the writ” where findings of fact or conclusions benefit is judgment affirmed. This faced with the law. Court now 17, request July which it denied identical All concur. being of review no with the burden lighter no than when it was different and

first tendered. good judi

While it have been days of practice during early our

cial to lend

government for this Court assist legislative and executive

ance to the advisory giving form

branches in the issues, we now

opinions proposed on bond case law is sufficient

believe that there can which the issuers of bonds formu validity. opinions to their

late al., FRANK, Respondents, future, be con Andrew et pre-issue validity bond will upon a substan only the courts sidered inability showing to issue and sell tial SANITATION ENVIRONMENTAL such consider bonds. We believe that such INC., MANAGEMENT, Appellant. circuit court should then be ation question jurisdiction where within No. 66244. justice ends of We arises. believe Missouri, Supreme Court of most inter when those be served best will En Banc. most conve have the project ested being heard opportunity and best nient April 1985. connection, In this we the matter. same Rehearing April Denied identify better public could that the believe litigated if the matter is being the issues judgment action declaratory as a

framed quo friendly fictional war-

rather than the declaratory action judgment

ranto. The *2 Rost, Miller,

Thomas H. Charles Jef- R. City, appellant. ferson III, DeLong, City, John F. Joe Jefferson Turner, City, respondents. E. Kansas *3 BILLINGS, Judge.

Plaintiff sued Environmental landowners Inc., Management, [ESM], Sanitation owner landfill, owning of a and the individuals ESM, damages by for reason of ESM’s permanent A maintenance a nuisance. damages plaintiffs awarded actual appeals af- against ESM the court of and granted firmed. We transfer to reexamine existing case as an law and review the Const, § 10, V, original appeal. Mo. art. 1945. We affirm. op- opened landfill 1973 and

ESM locat- it until The landfill was erated that had City near Jefferson and ed farming. Al- been used previously proper not of though the land was leachate type of soil to insure amount groundwater, it escape into the would could be contained was assumed leachate by proper management. along part landfill

A a creek runs plaintiffs. Plaintiff and across lands cattle, farm, raise beef their lands to used dairy herds. The water maintain and by plaintiffs used the creek had been operations farming since various their 1960’s. types and kinds deposited all

ESM gar- household, and industrial commercial landfill, including in the bage and waste chemicals, polish thinner, fingernail paint cream, sewage remover, perfume, hand and As waste oil dead animals. sludge, and landfill, it area deposited in an was layer of soil compacted and would regular procedure was over it. This spread full. particular area followed until the and applied of soil was layer a final Then the area seeded. infil- can surface water

Rainwater and “cells”, of layers, or compacted trate picks contami- up landfill. water Such organic the pleadings nation from the and chemical did not show evidence wastes. The contaminated water moves that an act caused the leachate intentional laterally both down can invade escape. The trial court used MAI 22.06 underground and surface sources fresh as the for all nuisance verdict director as water —such the creek. The contam- plaintiffs: water, together inated with the residue it plaintiffs Your verdict must be carries, pol- called leachate—described as against defendant Environmental Sanita- luted, discolored, foul-smelling scum. Management, you tion if believe: In 1974 there a small outbreak of First, plaintiffs property their used quickly leachate at the landfill but it was farm, However, brought begin- under control. Second, Sani- Environmental ning 1977 substantial amounts leac- Management, operated tation Inc. up hate from the landfill ended *4 upstream plaintiffs’ farm, landfill to polluted creek. The creek still was with and November, in leachate at time of trial 1982.

Prior to 1977 the creek water clean was Third, ill-smelling odors and leachate pure pollution. and and free of Plaintiffs escaped from defendant Environmen- were able to use it in farm operations, their Management, tal Sanitation Inc.’s watering including the of their livestock. premises plaintiffs’ property onto and polluted After 1977 the leachate the stream substantially impaired this plaintiffs’ to dirty the extent that water the and property, use of their and discolored; the adjoining creek and areas Fourth, such use Envi- had the of decaying organic odor material Management, ronmental Sanitation smelling eggs described as like rotten property Inc. of its was unreasonable. hog Aquatic manure. life the creek died. recognize We there is a conflict polluted Because the between leachate the creek water with certain chemicals *5 Smith, (Mo.App.1969). 440 S.W.2d 497 use The unreasonable element nuisance. recognizes two con The law of nuisance injunction issued. assumed and an flicting rights: property have a owners improper con allegation was no of There it right control their land and use to to previous authority The court duct. cited interests; public and their best benefit the case to demon than the facts of rather right a

neighboring land have to owners impose injury homes on funeral strate that substantial prevent unreasonable use of neighborhoods. Operation a residential peaceful enjoyment impairs the use and ly per in a rural is not a nuisance landfill area Inc. Hospital, v. of other land. Clinic & se. McConnell, 236 Mo.App. 241 S.W.2d may element A found a (1951). The use nuisance be 384 unreasonable prior of cases independent matter rights adjoining of factual of nuisance balances the substantial; continuing (b) recurrent invasions there are or the invasion is legal (c) resulting continuing cause is a from or recurrent con- the actor’s conduct invasion; resulting such invasion In cases the duct. (d) invasion either may is be either inten- the actor’s conduct from unreasonable; (i) or unintentional, intentional and but when conduct tional or (ii) otherwise actionable unintentional and knows that the the actor is continued after negli- governing liability for the rules under gent, it, resulting invasions is further invasion from conduct. or reckless ultrahazardous are intentional. to cover above instruction is intended The only invasion is inten- those cases where the indicated, dicta, modern that law Rebel 3. and unreasonable. tional intentional, negligent, or requires reckless ab points 825 com- § Restatement out dangerous normally defendant. The conduct ment d: posi disagree this cases that court noted in the interest use An invasion another’s extent nuisance cannot To the Rebel holds tion. enjoyment when the of land is intentional proof described of the maintained without actor conduct, disapproved. more accurate it is A it; causing (a) purpose or for the acts may in White be found of the law statement Smith, resulting (b) is substan- that or knows it is (Mo.App. 440 S.W.2d 497 tially his conduct. to result from certain intention, negligence, de held defendant’s court following states: b Comment to his sign, motive are immaterial non-trespassory litigation over Most for nuisance. enjoy- use and invasions interests situations which of land involves ment

881 In In intentionally negligently. and conduct. done Taystee Crutcher v. (Mo. Co., (Mo.1943), Spinning, 174 the Greene v. Bread S.W.2d 801 pulling fact into App.1931), the that cars Court noted: filling bright lights station defendant’s cast There is no exact rule or formula plaintiff’s into house created an actionable the existence of a nuisance or Finally, in Haynor nuisance. Excelsior may of a nonexistence nuisance be deter- Co., Power, Springs Light, Heat & Water ‘Necessarily mined. each case must (1908), Mo.App. 580 S.W. upon own special stand its circumstanc- held in nuisance be court defendant liable es, given and no definite rule can be gas manufacturing operated it a cause cases, applicable in all is but when an plant polluted nearby water and appreciable interference with the ordi- de well. Plaintiff’s action arose because nary enjoyment property, physically, sewer, used water as a fendant course clearly made out as the result of a injury her plaintiff property, sustained equity a court of will never and there was a causal connection between interfere,_’ Wood, refuse Nuisanc- case, In the two facts.4 the instant §es, required finding verdict director of unrea Kelley Id. at v. National Lead sonable use. That was sufficient. The Co., Mo.App. (1948), S.W.2d jury had sufficient evidence conclude plaintiffs injured were because of fumes use of land in ESM’s a manner that mists that eminated from defendant’s created leachate was unreasonable. plant. Although the court held for defend upon also rest Nuisance continu- emphasized ants on a it issue ing Burling- known invasion. Hawkins could sustain an if award Northern, ton itswas basis. As a factual matter defend 1974), involved consolidated nuisance use ant’s of land was unreasonable. damages resulting suits the flood- Carbonizing Engi Fuchs v. Curran ing plaintiffs’ property. Construction neering (Mo.App. *6 property defendant’s diverted water and 1955), a injuries tavern owner sued for ample the evidence was caused floods and plant sustained because defendant’s emit continuing to show a intentional nuisance pollution. air A ted of submissible case flooding after the first because numerous nuisance was established three on facts. made, light complaints of were and the First, of emissions fumes from defendant’s complaints, and early numerous defendant plant Second, plaintiff's premises. invaded remedy and to the situation. failed refused injured Third, plaintiff. the emissions Similarly, in Vaughn v. Power & Missouri proper circumstances proba were Co., (Mo.App.1935) Light 89 S.W.2d shown— bly use. In v. City unreasonable Clark plaintiffs damages resulting sued for of Springfield, (Mo.App.1951), 241 S.W.2d 100 spray pond. operation defendant’s of a operated plaintiff proved defendant a sew spouts carried and chemicals Wind water drainage system proper er a near his with damaged plaintiffs’ which land. Defendant ty. When much the too water accumulated pond being continued to run the after told drainage system deposit would flood and effects. This was a nuisance. In the its garbage plaintiff’s jury and manure on land. instant case the had sufficient evi- to This was a nuisance whether the action dence to conclude defendant continued liability quantities. jury impose 4. Courts have declined to their land in destructive given required finding injured adjoining use that land a land owners. was instruction Hindman, Looney re v. use defendant. It 649 S.W.2d of unreasonable land 1983),property neighbors v. sued a for defendant. In Schott owners for dam- turned verdict Co., ages dug AppletonBrewery (Mo.App. a from water runoffs. Defendants 205 S.W.2d 1947), garden brewery a was be a and installed a tie border. Plaintiffs held to reasonable alleged improvements of land nuisance. the rerouted water onto use and therefore not a (Mo.App.1959). operate pendence, it the 328 S.W.2d 55 landfill after knew of problem, though Negligence leachate even leachate in- alone does create a nui- capacity. Building contained its dicated landfill sance. v. & Lentz Schuerman Realty 359 Mo. 220 S.W.2d may An act constitute a intentional (banc 1949); Bollinger Mungle, 175 requisite may intent nuisance. The Negligence (Mo.App.1943). merely intentionally did an “defendant support finding will a only plain interfere happened act which use of when constitutes an unreasonable Comment, land.” Pri tiff’s Law of land.5 Missouri, 44 Mo.L.Rev. vate Nuisance City Kan Genova necessary requires the MAI 22.06 City, (Mo.App.1973), sas finding land use. It was of unreasonable 22.06, approved the court a modified MAI properly given the instant case because (1) required jury find: Plaintiff finding on a for nuisance rest buildings, (2) damaged defend owned use whether not the use of unreasonable water, (3) ant diverted the normal flow The in previously had been encountered. of a defendant allowed deterioration flexibility to sufficient struction afforded land, (4) plaintiffs water collect drain near case jury allow the to evaluate the instant discharged on land and was ed defendant’s particular facts. on (5) volumes, plaintiff’s on in unnatural unreasonably, Second, defendant used his land trial court defendant claims (6) damaged as a result. plaintiff give pro direct by refusing committed error approved in A similar instruction the ex posed instructions. With converse hog nuisance suit defendant’s farm where plain ception names of the individual polluted plaintiff's air and water tiffs, identi proposed instructions were property. Hog Builders Bower cal: (Mo.1970). In the instant case must be for defendant Your verdict had evidence to conclude sufficient Management, Environmental Sanitation surrounding the construc circumstances Andrew Frank against Inc. Plaintiffs sufficiently tion of the landfill constituted you Frank if Pearl believe: Anna impose liability nui intentional act to for a First, Environmental Sanita- sance. Inc. not act with Management, tion did causing ill-smelling purpose odors Negligence may also constitute escape onto Andrew and leachate Big Drain nuisance. In Rebel v. Tarkio property, Anna Frank’s Pearl *7 District, (Mo.App. 787 602 S.W.2d age Second, Sani- defendant Environmental 1980), negligent plaintiff alleged defendant act Management, tation Inc. did caused ly maintained a levee that the flood ill-smelling and leac- knowing that odors The court allowed a cause ing of his land. and escaping onto Andrew hate were tempo to describe a negligence of action property as a result Pearl Frank’s Anna negli noted that rary nuisance. It must be knowing that ill-smell- conduct prove a nuisance. gence is not needed to substantially ing and leachate were Hawkins, City v. Inde- odors supra; Proper Co., Mo.App. 735 232 S.W. Oil 207 cases Standard is an distinction 5. There old thought requirement. that must inaccurately this the nuisance describes It was that Things injuries lawfully injury. v. done which cause source of Pearson inherent proof of improperly (Mo.1932). held to need if done were is City, 485 It S.W.2d Kansas 55 constituting a negligence nuisance. before negligence may say constitute more to accurate by very Things injuries na their which caused thereby create use of an unreasonable negligence proof of need ture were held to not create does not but alone constituting Spin Greene v. a nuisance. before the nuisance. 1931); (Mo.App. v. ning, Schindler escape sup- certain to Andrew and Anna record reveals sufficient evidence to onto port jury’s findings. Pearl property Frank’s as a result of its conduct. Fourth, claims trial converse Defendant’s affirmative instruc sustaining an objection court erred to governed by are MAI 33.01. “The tions testimony. certain Defense counsel asked hypothesized facts in an affirmative con Penfold, DNR, expert James an instruction sufficient in verse must be law hypothetical question: plaintiff’s defeat MAI to claim” 33.01 at Penfold, assuming that Mr. ESM main- Johnson, 489. See Morse v. 594 S.W.2d any seep might develop tains on the (Mo. 1980); banc Oliver v. Bi-State area, picked up by landfill isn’t (Mo. Development Agency, 494 S.W.2d 49 present system, assuming collection hypothetical Defendant’s facts hauling capabilities you testified merely many ways eliminate two to, you opinion do as to have an whether use. show unreasonable land The convers system or not this leachate collection is properly rejected. es were going preventing to work in terms of Third, defendant claims the getting leachate into the creek. should have been instructed on dam plaintiff’s objection Trial court sustained perma ages temporary for a rather than a question that the facts “assumes into the permanent Damages nent nuisance. future and calls for the therefore witness nuisance are the difference in measured speculate improper be an would immediately the land’s market value before question could be because there no evi- damages injury; temporary and after dence be done in what will the fu- nuisances include the decrease in rental or proof presented by ture.” No offer of during property inju useable value of Generally, appellate defense counsel. Spain Cape Girardeau, ry. City courts will not review excluded evidence (Mo.App.1972). S.W.2d 498 The character specific without a and definite offer of injury distinguishes of the source of often proof. Haggard Hauling Karashin v. & temporary permanent nuisances. Reb Riggins, 653 S.W.2d District, Big Drainage el Tarkio 602 1983). exception an We out to this carved (Mo.App.1980). A nuisance is Highway rule in State ex rel. State Com- abated, temporary if it may be and it is Co., Building mission v. Northeast permanent impracticable if abatement (Mo.1967). S.W.2d 297 Northeast we impossible. v. City Spring See Stewart recognized purpose proof of an offer of (banc field, 350 Mo. opposing is to insure the court and trial 1942); Bartlett v. Hume-Sinclair Coal proposed counsel evidence. understand the Co., Mining (Mo.App.1961). 351 S.W.2d proof Additionally, ap- enables offer expensive sophis showed Evidence pellate courts to understand claims of er- stop plans ticated leachate control failed to proof ror. offer of Northeast an justified the outbreaks. This instruc everybody not needed because at trial permanent damages. Ruppel tion testimoy knew would what be. Be- Purina 423 S.W.2d Ralston objection catego- cause the was based on a *8 (Mo.1968). stigma Evidence also showed a ry adequately of could evidence and be repeated perma outbreaks reviewed, leachate exception an we created to the nently plaintiffs’ property. proof. devalued This requiring excep- rule of This offers justified First, the independently instruction on very requires tion is narrow. damages. complete understanding, Amish v. permanent Walnut based on the record, Second, Development, testimony. S.W.2d of the excluded Creek perma objection category (Mo.App.1982). The the must to a instruction given specific testimony. evidence to damages properly and the rather than nent was Third, against for violations the record must reveal the evidence an action defendant president helped proponent. of the Clean Water Law. would have See notching Co., to do 515 stated action had with Brooks v. Travelers Insurance system. of the leachate collection There (Mo.App.1974). The instant evi outcome of the was no evidence of the dence does not fit into the Northeast ex controlling action or the consent order. ception. objection specific con cross-examination, scope and content of questioning. category tent not to a enjoys discretion. the trial court broad piece we could review whether Northeast Register Wilkins v. Cash Service Here, improper. meal we valuation 736, (Mo.App.1975). Here S.W.2d guess have to whether the content would closely supervised. cross-examination was of the answer would been witness’ have discretion We find no abuse of the court’s point improper evidence. The was not allowing plaintiffs’ questioning re- preserved properly for review. See State sponse to defendant’s evidence Highway v. An ex rel. State Commission spent improve amount the landfill. krom, (Mo.App.1979). 588 S.W.2d remaining defendant’s We have reviewed argues exhibits “Defendant three incorporate allegations error and we should not have been admitted because opinion part appeals’ court of of the to con they opinions contain witnesses’ allegations. addresses the ground objection This clusions of law. “Next, defendant asserts certain evi- the trial court was never submitted to erroneously admitted at trial. dence was nor in the exhibits were introduced when complains of the admission Defendant first A party for a new trial. the motion that it had violated Missouri’s of evidence appeal objection to evi not advance on Clean Water Law. presented to dence different from the one Phillips Pipe Line Co. v. the trial court. and the “In December of defendant (Mo.App.1980). Ashley, 605 S.W.2d stipulation of Missouri entered into a State resolving an action and consent order complains court “Defendant also the trial charging defendant brought by the state witnesses Crawford and Williford allowed operation various violations with testimony was ‘ir- testify because their in limine Defendant motioned the landfill. issue, relevant, and was injected a false order reference to the consent to exclude point part This relied on privileged.’ agreed the issue. plaintiffs not to raise nothing for review. Thummel v. presents trial, produc- day of defendant On the third King, 570 $328,000 had approximately ed evidence record on reading of the briefs and the Our leachate spent by it to arrest been no error was appeal convinces us reversible in con- day, plaintiffs, problem. The next of the mouths of Crawford and uttered out court, sought permis- trial ference with the weighed objections when Williford order to shed refer to the consent sion to interposed by defendant. ex- of defendant’s

light on the evidence “Finally, complains per- granted The trial court penditures. discretion de the trial court abused its defendant’s plaintiffs to ask mission for its motion for new trial and remit- nying Department of if the Missouri president verdicts. titur on the basis excessive it to make pressured Resources Natural $27,000, Hoskins said his loss was Plaintiff operation. changes in the landfill’s $12,900 expert said it was a real estate $6,500. jury asked Plaintiff Curren- president was awarded “When $109,250; put a real estate ‘no.’ The trial der his loss at question he answered this $71,134 and the awarded plaintiffs expert to ask at permitted then court $43,888. put his brought Plaintiff Frank loss at Attorney had General whether *9 $75,000; $41,000; expert a real estate synchronization at There seems to be a lack of $23,222. and the awarded The matter portions between the of Restatement of great of excessiveness is to a Second, extent within dealing products Torts liabili- province of the trial court. (§ 402A) (§ 822). Morris v. ty and nuisance But re- Bros., Inc., (Mo. Israel statements are not law. 1974). Because the verdicts were within principal opinion correctly analyzes The limits, evidentiary we will defer to the and harmonizes the earlier Missouri cases discretion of the trial court.” § recognizes 822 does not accu- Judgment affirmed. rately reflect our I law. find both clarifica-

tion and modernization.

RENDLEN, C.J., and HIGGINS and GUNN, JJ., concur. WELLIVER, Judge, dissenting. I respectfully dissent.

BLACKMAR, J., separate in concurs opinion filed. clarify Rather than and modernize the nuisance, law principal opinion opts WELLIVER, J., separate dissents in to turn back the hands of time and invoke opinion filed. long, liability discredited view of with- out fault nuisance. For century, over a DONNELLY, J., dissents and concurs courts in this State and elsewhere have separate dissenting opinion WELLIVER, struggled liability with the basis for J. private and it is time that Missou- pull ri “legal garbage nuisance out of the BLACKMAR, Judge, concurring. give proper can”1 and place it a in our law. wholly I Judge concur in Billings’ schol- The largely developed law of nuisance arly opinion. and lucid accidents, through a series of historical This, me, is not a difficult case. The the term has variously been used with little defendant, for its profit, own established analysis. or no Professor Prosser wrote and maintained a landfill in which solid and “[tjhere perhaps impenetrable no more liquid waste were buried. A deleterious jungle in the entire law than that which escaped substance drainage into normal ” surrounds the word ‘nuisance.’ W. Pros channels damage caused to down- Keeton, ser W.& Prosser Keeton & on the stream owners. It is entirely proper that (1984). Similarly, Law Torts at 616 Pro proprietor, owners, rather than the Cunningham, fessors Stoebuck and Whit bear the loss. The principle is similar to man write that tort law the word “[i]n applied products liability cases such extremely ‘nuisance’ has had an elastic Owens-Illinois, Inc., Elmore v. meaning; sometimes it is little more than a term, pejorative a weasel word used as a products cases, Just as in liability reasoning.” Cunning substitute for R.A. defendant’s fault should not be an issue. I ham, Stoebuck, Whitman, W.B. & D.A. agree that “reasonableness of use” is an (1984). Property Law See also 5 appropriate jury submission. § 704; Property Powell On Real Ander son, principal opinion Rylands “The does v. Fletcher Doctrine in not “turn back Abnormally Dangerous, the hands of time” nor America: does it invoke a Ultra- “long hazardous, Nuisance?,” discredited view.” The dissent or Absolute quotes scholars, 99; numerous Seavey, learned but a Ariz. State L.J. “Nuisance: substantial Contributory Negligence number of them wrote Mys before and Other development products teries,” (1952). law. 65 Harv.L.Rev. 984 Prosser, Fault,” "Nuisance Without 20 Tex.L. Rev.

886 principal opinion gets caught Corp. Savings

The in this v. First Federal & Loan Ass’n, 631, “impenetrable jungle” suggest- and errs 88 Wis.2d 277 N.W.2d 766 (1979). ing legal apparent agree- fault is not Authorities are in defendant’s an essential element in this nuisance action. ment that invasion of another’s use “[a]n principal opinion enjoyment gives holds that a defend- of land rise to liability liability for a nuisance be inten- ant’s conduct is not an element of either reason, opinion Liability For tional or unintentional. for an nuisance. rejects enjoy- the Notes on Use to MAI 22.06 and unintentional invasion of the use and 22.06, by imposed by holds that MAI which “makes no ment another of his land is conduct,” properly applying relating negligent mention of defendant’s the rules conduct, agree I reflects Missouri law. cannot with reckless whereas an intentional assertions the Notes on Use interference is actionable where it is both these because To and unreasonable.” 58 Am. properly reflect the law of nuisance. substantial § § 32, liable, 19. One com- held the defendant must have acted Jur.2d Nuisances “[njuisance liability is intentionally negligently. or Because this mentator notes that 22.06, normally predicated upon in MAI I intentional con- element is not made clear defendant; MAI there is also an longer would no sanction the use of duct but liability For this same reason I believe the area of law where nuisance over- 22.06. refusing give laps liability for and liabili- trial court erred both engaging in proposed ty instructions. for ultrahazardous activi- defendant’s converse § Property ties.” 5 Powell On Real A careful examination of nuisance law Morrison, Beuscher & “Judicial See also legal generally fault has illustrates that Cases,” Zoning Through Recent Nuisance prerequisite holding defendant for been Keeton, 440, 441; “Tres- 1955 Wis.L.Rev. recognized “[Tjoday it is that one liable. Nuisance, Liability,” 59 pass, and Strict if subject private for a 457, 460-62, (1959); 473-74 Colum.L.Rev. legal cause of the invasion his conduct is a Prosser, supra; Seavey, supra. Re- enjoy private of the interest in the use and (Second) require of Torts would statement (1) ment of land and such invasion is inten intentionally, either act that the defendant unreasonable, (2) negligent or tional and engage in negligently, recklessly or ultra- reckless, (3) actionable under the rules go activity.2 Some authors so hazardous governing liability abnormally danger suggest the tort should be far as to Copart In ous conditions or activities.” conduct. R.A. limited to intentional See dustries, Edison Inc. v. Consolidated Stoebuck, Cunningham, & D.A. Whit- W.B. 169, 172, 564, 41 N.Y.2d 394 N.Y.S.2d 362 Keeton, man, 413. Prosser and supra, at 968, e.g., N.E.2d See Sandifer example, “[pjrivate nui- observe that Park, Motors, Inc., City Roeland protects the interest sance is a tort that 308, (1981); Kan.App.2d 628 P.2d 239 Me occupy from con- those who own Soales, 73, Mich.App. lendres v. of inter- duct committed with the intention (1981); Highview North N.W.2d inter- fering particular interest —the Ramsey, 323 County Apartments therefore, is, enjoyment. It est use and (Minn.1982); Nelson v. D.J.C. N.W.2d arising from the inten- trespass, like a tort 414, Mont. 465 P.2d Plywood Corp., 154 in land interference of an interest tional Ranch, 314, (1970); Phillips Inc. v. legal protection.” worthy deemed that is Banta, 543 P.2d 273 Or. Keeton, at 622. supra, Prosser & W. W. (1975); County, 583 v. Salt Lake Vincent upon intention- (Utah 1978); Most nuisance cases rest Pope M. P.2d 105 v. Edward conduct, degree care regardless of the 75 al Corp., 138 W.Va. Rude Carrier Rabin, “Nui- (1953); exercised the defendant. Management S.E.2d 584 CEW (Second) §§ of Torts 822-40. 2. Restatement

sanee Rethinking Law: Fundamental As- knowingly liable because he or intentional *11 sumptions,” 1299, ly 63 did that U.Va.L.Rev. 1317 which is unlawful or is substan (1977). tially certain to cause upon Nuisance cases harm.3 See Ander based inten- son, 104; Faulk, supra, at “Absolute Lia tional conduct generally fall within one of bility:’’ Perspectives “Historical and Politi following categories: Alternatives,” 569, cal 37 Okla.L.Rev. 571- Analytically, cases that do not involve a (1984). Judge explained 72 Cardozo that personal entry whereby damage to land all, is things not to do such at wheth “[h]e or annoyance to the occupants thereof negligent er he is or careful.” McFarlane has resulted can be classified into four Falls, City Niagara 340, 160 v. 247 N.Y. general categories: (1) in those which the (1928). N.E. 391 One commits an unlawful defendant knew that his conduct would per act—often called a nuisance by se— cause or causing plain- invasions of knowingly creating an unreasonable dan tiff’s airspace land or the by above ger though to others even exercising care things or forces and in which he knew to avoid harm. Id. at 392. Heeg See also that it would having have or was Licht, (1880) (the v. 80 leading N.Y. 579 causing effect of damage substantial or Cardozo, J.). New York upon by case relied (2) annoyance; those in which defendant Missouri explained cases have these situa knew that his conduct would cause or by noting tions the “difference where the causing plaintiff’s invasions of injurious consequences may and must re airspace or but in which he did not know Gillum, 487, sult.” Murphy Mo.App. v. 73 that the effect would be was to cause (1897). injurious 494 If consequences damage substantial (3) or annoyance; result, must then the defendant is said to those in which neither things forces nor have intentionally acted because he or she projected upon were plaintiff the land of anticipated must have the harm. Id. See but in which defendant’s conduct or ac- 51, also Spinning, Greene v. 48 S.W.2d 61 tivity produced knowledge to his unpleas- (Mo.App.1931);Schindler v. Standard Oil ant or depressing feelings emotions and Co., 190, 735, Mo.App. 232 S.W. 736-37 of a substantial intensity. (1921); Bradbury Marble v.Co. Laclede Keeton, supra, at Additionally Co., 96, Light Gas Mo.App. 106 S.W. fourth, while some other cases are often 594, (1902) (quoting Joyce on Nuis couched terms of liability, strict the bet- ance.4 In v. Hurlbut-Glover Mor Leffen ter view is that the 1137, defendant is (1953), deemed tuary, 363 Mo. involving abnormally lands, however, 3. Cases dangerous actually is not a doctrine of activity plagued 5, ultrahazardous have liability the law of without fault. Id. at 7. See also many Anderson, (”[t]he decades. supra, imposes Missouri and at 104 law thus elsewhere, century liability courts in the anyone purposes nineteenth re on who for his own jected Fletcher, Rylands recognizably v. L.R. 3 H.L. 330 creates a abnormal risk of harm to (1868), purported others’’); impose liability Harper Regency Development 248, (Ala.1981). involving without fault in certain cases 399 So.2d abnor 252-53 Doubt- Comment, mally dangerous activity. problems Ry less because of the “The these cases cause (Sec- Standing lands v. for the law Fletcher Doctrine and the Restatement Its Missouri," ond) (1953). jurisdictions of Torts and a number of Mo.L.Rev. 53 now Situations might apart by treat this issue that have been from the law of nuisance. covered the doctrine in 519, therefore, (Second) Rylands, Restatement brought of Torts §§ were 520. See Co., Inc., within the am e.g., Harper Regency Development thereby creating bit of nuisance law confusion 253; Burdick, 124, supra, Dye at Seavey, 262 Ark. supra, law of nuisance. See at (1977); State, Peneschi v. Department 986. See also National Environmen Corp., supra, Steel at 10. Corp., tal Protection v. Ventrón 94 N.J. jurisdictions reject A.2d 150 “Even Rylands by accepted (Second applied 825(b). name have 4. See Restatement of Torts § theories, under the cloak of suggest various other Some commentators liability commonly imposed strict upon under so based the defendant’s in not briquet of forseeing ‘nuisance.’’’ Peneschi v. geographical National certain area Corp., (W.Va.1982). Steel Ry 295 S.E.2d "substantially injurious" certain uses are more operation wrongful held that of a fu Court cases where the conduct is improper- neral home a residential district was either because the defendant is smells, causing noises, ly can be said to vibrations or “unlawful.” plaintiff’s wrongful inten other harmful effects on the have committed act in cases land or where the defendant tionally operating a funeral home in an activity the continuance of his creates substantially area where it was certain to persons undue risk structures or Keeton, injury. cause su generally See plaintiff’s land, it is clear that the (“an pra, just at 458 actor can be ... *12 activity wrongful is and cannot be made much at ‘fault’ the choice of the location rightful by the fact that the utmost care activity necessary likely or of an where the minimizing in Because is used harm. of annoyance result will be to cause or dis many expressions this there are cases comfort”). important The court added an negligence is not and textbooks that es- may caveat it that be when observed “[i]t for a and that a nuisance sential nuisance that, a result of enactment of the may though exist even the defendant is ordinance, zoning mainte municipal the it generalization careful. From this has at operation nance and of the funeral home occasionally been held that even where prop is present its location lawful and now neither negli- the defendant’s conduct is so, If our a common law er. restraint of ultrahazardous, gent nor there is an ele- (resulting, operation from the nuisance not in the nuisance which ment rules of solely from the location of the funeral but makes the defendant liable unex- home) improper would be and futile.” Lef results, although pected his conduct was Mortuary, supra, v. Hurlbut-Glover fen lawful. 257 S.W.2d at 614. Seavey, supra, at Professor 986-87. Seav that It is from these cases in our State ey’s accurately remarks describe the error opinion incorrectly principal the concludes principal opinion. in the that the defendant’s conduct is irrelevant.5 cases, degree property the care exercised such of If the defendant’s use of the is danger- inherently defendant is because the nor a by the immaterial neither unlawful activity, thus does not intentionally, defendant acted ous the defendant engage in legal knowingly intentionally fault. or activi- (“the negligence typical normally of not an essential ele- uses encountered in fact is then Rabin, ment, supra, thing Kee- the area. at 1318. See abo is a for the reason that a nuisance ton, supra, at 459. annoy- itself it an unlawful when of constitutes others, danger a source ance or of opinion heavily upon principal relies it or the maintains it is held author of one who Smith, (Mo.App.1969), 440 White v. degree regardless of care exercised liable court held nuisance “does where that that the him.’’) knowingly intentionally or The act of used, depend upon degree of care not rest or wrongful doing which is is that unlawful degree danger existing upon with the but City, Kansas Pearson v. actionable nuisance. So, determining for the best of care. Smith, at supra, S.W.2d In White 55 489-90. defendant whether maintenance therefore, oft-repeated quoted the court intention, design negligent or was what his type phrase in these of cases that action- ”[a]n may immateri- have been alike became motive wrongfully 'anything done able nuisance be Smith, the court al.” Id. at 503. White v. Smith, supra, permitted ...’” at or White language appearing apparently followed the added). (emphasis principal I believe the City, Mo. cases as Pearson v. Kansas such 885, understanding line opinion errs in its of this In Pearson recovery must City, the Court that area of when "[t]here Kansas held cases. The law allowed degree danger (likely result in be a known ... knew should have that the defendant or itself, thing beyond damage) that inherent in the (substantially the land unlawful his use of ordinary arising mere to exercise failure particular to cause either in the certain harm City, ..." v. Kansas in its use Pearson care anywhere), or and thus these courts location Haynor v. supra, S.W.2d at 489. See abo ordinary properly held that Power, Light, Springs & Water Heat Excebior required. of the term was not sense (1908) Co., Mo.App. S.W. ty significant where injury is substantially able use—it is neither unlawful nor inher- follow, certain ently then liability dangerous. must Nor has it been claimed predicated upon negligent operated the landfill reckless con- knowing Judge plaintiff duct. that harm to the Cardozo held that if the de- substantially Thus, certain to follow.7 it is activity wrong fendant’s is not or unlawful not the actual use of the land which can be origin” “in “may be turned into a said to be unreasonable the cause of the by negligence in maintenance.” Rather, way harm. it is the in which this City Falls, McFarlane v. Niagara su- particular use was maintained caused pra, 160 N.E. at 392. principal As the the harm. Just as intentional inva- “[a]n holds, opinion a number of Missouri cases sion of another’s interest the use and indicate negligence may but need not enjoyment of land is unreasonable unless support a Negligence nuisance action. utility outweighs of the actor’s conduct necessary legal premised where fault is harm,”8 gravity so too it is the upon an wrong, intentional but absent the negligent or reckless use of property one’s wrong intentional negligent conduct must *13 that makes the use unreasonable. exist. Because I majority believe that both the A distinction has been made between jurisdictions do and the law of this state themselves, acts lawful in done one require should presence legal fault upon premises, his own result for liability in I dissent from the injury to another if properly done principal opinion. I urge would the re- guarded, and those which in the na- drafting of MAI 22.06. ture things result; must so in the case, former person only could be made

liable for actual negligence per-

formance of the act or mode of maintain-

ing it ... The only one can become a negligent reason of the man-

ner in performed which it is or main- tained ... GOODMAN, Plaintiff-Appellant, David Greene v. Spinning, supra, at (quoting 46 C.J. The soundness ap- of this HOSPITAL, ST. LOUIS CHILDREN’S proach becomes evident when one realizes al., Defendants-Respondents. et that an element of nuisance is the unrea- sonable use of one’s land.6 If the use of No. 66095. the land is not unlawful or inherently dan- Supreme Missouri, Court of gerous, or if the defendant does not inten- En Banc. tionally use his or her knowing land resulting harm is substantially certain to April 1985. follow, it is hard to see how the defendant Rehearing April Denied 1985. can be said to using be his bar, unreasonable manner. In the case at example, operation of the landfill in particular location is not an unreason- Schneider, generally Neyland if,

6.See might principal 7. There as the (Tex.Civ.App.1981). 286-87 opinion suggests, “The continuing conclu- there was a known invasion, depends upon This, sion of thereby establishing ‘unreasonableness’ then intent. however, liability-inviting plus question conduct of the is a factual and the finding protected this conduct violates a not so instructed. neighbor-plaintiff.” interest of the 5 Powell On Property Real 704. § 8. 58 Am.Jur.2d § Nuisance the and notes considered instruction on use.1 The animals, harmful to humans and plaintiffs say notes on use the instruction limited has prevented their drinking livestock from the application explained the as Committee’s Additionally, expert water. there was tes- authority Comment. The comment cites as timony that the continued leachate contami- § (Second) the Restatement of Torts nation of the creek had permanently re- (1965) requires which a focus on a defend- plaintiffs’ duced the value of lands. ant’s conduct.2 The instruction makes no Defendant mention of defendant’s conduct. Defend- directing contends verdict nuisance improper instruction was upon because ant relies We Restatement view. Comment, 1. This conflict was discussed in The whether intent are re- and/or Missouri, Law of Private Nuisance in 44 Mo.L. quired private to a in order maintain nuisance 20, correctly case, Rev. The comment con- subsequent Speed- Lee action. A v. Rolla cluded that the verdict director is consistent (Mo.1973), way, 494 S.W.2d 349 used the law, require with Missouri plaintiff which does not a balancing in a Restatement ner, test similar man- prove negligence to or intent. The requirement not but did mention of explain comment continued to there little negligence. intent and/or authority adopted for Committee to have Id. at 53 n. 251. Restatement: Reporter John S. Divilbiss served as for MAI (1969 New) 2. Committee’s Comment from 1962 until his death in His un- 822, (Second) Section the Restatement of published Hosp., notes cite Clinic & Inc. v. (1965), Torts § 822 states: McConnell, Mo.App. 236 S.W.2d 384 damages is liable in action actor for (K.C.1951) Carbonizing v. Fuchs Curran & non-trespassory for a invasion on another’s Eng’r (St.L.Mo.App.1955) private enjoyment interest in the use and of authority proposition for the Missouri if, Clinic, adopted had the Restatement. (a) rights privi- property the other has § court cited 822 of and list- the Restatement leges respect enjoyment inter- the use determining private ed a factors whether with; fered exists. court nuisance did not discuss accurately property Hindman, not owners. Looney hold the Restatement does v. 649 S.W.2d Missouri’s law and the tri- reflect court, jury. properly instructed the al of The crux a nuisance case is unreason- categories land use. The able broad within unreasonable, un Nuisance is the previous ways fit illustrate cases usual, property or unnatural use of one’s use; prove they unreasonable land are not right substantially impairs it so that may plain- It exclusive. be beneficial property. peacefully enjoy his another to attempt plead tiffs to their cases into Co., 174 Taystee Bread S.W.2d Crutcher recognized categories but law nui- (Mo.1943). The focus is defendant’s sance, balancing which is on a based the use interference with unreasonable interests, receptive uniquely must remain plaintiff’s enjoyment Big land. Rebel demonstrating ways unreason- to new District, Drainage 602 S.W.2d Tarkio use. able (Mo.App.1980). is an effect Nuisance a way The easiest to show nuisance of tort rather than cause prove conduct is is to defendant’s unrea interference antecedent to the conduct category as a matter of This sonable law. condition Id.3 is a be irrelevant. Nuisance per se. may be called nuisance Clutter degree of depend on the care and does Blankenship, 346 Mo. used; danger depends degree on the (1940), purely a funeral home existing of care. White v. best neighborhood held to be residential