136 Mo. App. 521 | Mo. Ct. App. | 1909
This action is for damages alleged' to have been caused by the defendant, a city of the third class, constructing a grade by a fill and insufficient culvert in one of its streets, whereby the surface water was collected and became foul and offensive and whereby, at times of rain, it would be discharged over plaintiff’s abutting property. At the close of the trial the jury was directed to find for the defendant.
There was no ordinance of the city council directing the construction of the work in the street and plaintiff claims that it was on that ground the trial court directed a verdict. The petition alleges the work was negligently done and plaintiff by his brief seeks to have ■ the judgment against him reversed and the* cause remanded for trial on the ground that in doing the work a nuisance was created and maintained by the city. But there was no ordinance alleged or shown for the work and .therefore under the ruling in this State the city is
But plaintiff claims that the work became a nuisance and that it was so permitted to remain and continue and by so doing the city became liable for maintaining a nuisance. The difficulty with plaintiff’s case is that, as decided by the Supreme Court, for the continuance of a nuisance by one not originally responsible for its erection, there must be allegation and proof of a notice or request to abate it, and neither appeared in this case. [Rychlicke v. St. Louis, 115 Mo. 662; Martin v. City St. Joseph, — Mo. App. — ; Martinowsky v. Hannibal, 35 Mo. App. 70.]
, So we have a case where the city was not shown to be liable for the erection of the work, and if we concede, under the line of argument advanced by plaintiff, that it is nevertheless liable for permitting a nuisance already erected to continue, then there is lacking the request to abate it. Authorities cited by plaintiff do not meet the case as presented.
The judgment is affirmed.