6 Mo. App. 287 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action brought originally before a justice of the peace and appealed to the court below. The parties were owners of adjoining lots upon Laclede Avenue in the city of St. Louis. The complaint states that the defendant, “ about the fall of the year 1871, * * * changed the surface of his said lot of ground by raising and filling up the same over and above its original and natural grade and level, * *„ * and in an inclined grade towards the lot ” of the plain tiff; that by reason and in consequence of such filling up and raising, and ever since, the waste water and rain accumulating upon the defendant’s lot has run upon the plaintiff’s lot and injured it, caused damage to his buildings, rendered his rooms damp and unfit for habitation, and created a nuisance. There was evidence tending to support these allegations. It appeared that the defendant built a gutter to carry this surface and waste water into an alley bounding both lots in the rear. On his part, the defendant contended that the water did not flow from his premises to the plaintiff’s lot, but that, the latter being below grade, the water, as it was carried from defendant’s lot by a sufficient gutter, ran into the alley, and thence, if at all, upon the plaintiff’s premises. There was also evidence tending to show that, in removing a stable upon his lot, the plaintiff so injured the gutter as to cause the water from it to flow upon his own premises. The judgment was for the defendant.
This action is in the nature of trespass on the case for a private nuisance. The testimony of the plaintiff tended to show that it was the act of the' defendant in raising the level of the land in the back part of his lot that, as often as a heavy rain fell, caused the overflow. The defendant, as the issue shows, denied that there was any nuisance, and
The court below refused to instruct that if the jury found for the plaintiff they should assess nominal damages, and in addition thereto such special damages, not exceeding $100, as the jury might find from the evidence the plaintiff had sustained by reason of the acts of the defendant, and gave no instruction as to nominal damages. An instruction was given to the effect that if the jury found for the plaintiff, they could only find the actual damages proved to have been sustained by him, etc. ; and another, that the plaintiff could “ only recover for injury (if the jury finds from the evidence that there is any such injury) to the ground or house of the plaintiff, or to his, plaintiff’s, own and actual
The court instructed that the appellant could not recover for any injury to his premises while the defendant was constructing his house and improvements. We are unable to see how this instruction can be justified. If it is admitted that while building is going on, and for temporary purposes, a person improving his property may lawfully do what he could not continue to do after his improvements were finished, it would by no means follow that so long as the defendant chose to keep his operations unfinished he could make any use of his property, however unwarrantable and however injurious to his neighbor. It cannot be assumed that there is any necessity that a person who is excavating or building should cause water from his premises to flow into the rooms and cellar of an adjoining proprietor. The owner of a city lot is not, indeed, obliged to keep his ground at its natural or former level, and may turn back upon an adjoining lot water the natural inclination of which would be to run down upon his own lot. Bentz v. Armstrong, 8 Watts & S. 40. But the right of the owner of a city lot to adjust the surface of his ground to suit his convenience is governed by the general principle that a person must not make such an unwarrantable use of his own rights as to seriously obstruct those of his neighbor. The necessity of building is great, but no greater than the carrying on of many trades
The court properly refused to instruct the, jury that if, in consequence of the defendant’s grading, the water flowed upon the plaintiff’s lot, rendering the occupation of the premises unhealthy, etc., and any of the tenants removed, and the actual rental value of the premises was thereby lessened, the jury should find for the plaintiff. There was no evidence tending to show that the rental value was lessened ; and this could not be left to conjecture. The appellant was entitled to recover only such damages as had accrued prior to the bringing of the suit (Pinney v. Berry, 61 Mo. 359; Sedgw. Ld. Cas. on Dam. 662, note), and it was incumbent on him to show that in consequence of the nuisance there was a loss of rent either through failure lease or diminution in the amount of rent. Francis v. Schoellkopf, 53 N. Y. 152. See Call v. Allen, 1 Allen, 138, 144; Wesson v. Iron Co., 13 Allen, 100.
As the appellant himself occupied a part of the premises, he was entitled, so far, to recover for injury to the use and occupation; yet though entitled to recover in both capacities, of course he could not thus recover a double compensation for the same loss. Seeley v. Alden, 61 Pa. St. 305.
The judgment is reversed and the cause remanded.