166 Mo. App. 320 | Mo. Ct. App. | 1912
(after stating the facts). — As the plaintiff’s counsel makes no claim that the petition states a cause of action under the statute .(Sec. 3150, R. S. 1909), we will not so consider it, but will treat it, as they treat it, as an attempt to state a cause of action at common law. As to the Statute of Limitations, the rulé, as we deduce it from the authorities, is, that where the nuisance is a permanent structure which causes damage and is bound to continue to do so as long as it remains the same, then the entire damage, present and prospective, accrues as soon as such actual damage begins and is discoverable, and is the
With this view of the case it is unnecessary for us to decide whether plaintiff or her predecessor in title ever had any cause of action on account of the turning back upon the plaintiff’s land of mere surface water; or whether either of the defendants could be held liable for injury due to an erection made by their predecessor in title, and not by them; or whether the defendant St. Louis and Kansas City Land Company' is liable for injuries due solely to an erection not on its land nor under its control.
But we find on perusing the petition the plaintiff does not confine her complaint to injuries due solely to the erection and maintenance of said embankments or to the turning back and overflowing her land with mere surface water. She goes farther, and charges that the waters gathered by the embankment “stood upon defendants’ property and formed a pond thereon into which defendants’ drain or permit to drain or flow other ivaters, slops and filth from a roundhouse, a boarding house and privies in the vicinity; that said pond overflowed defendants’ said property and onto plaintiff’s said property and at times covers and stands upon the whole thereof, carrying and depositing said filth thereon; that the waters in said pond are and always have been foul and emit foul odors and the deposit of said filth on plaintiff’s said property and the said overflow thereof has depreciated the value thereof $3700.” What would be the effect if it appeared that this filth came down upon the defendants’ land over plaintiff’s land, or came upon defendants’ land without its active permission we need not determine. The petition states no such case. As we interpret this language the word “permit” is not used in the sense of “passively suffered” but it charges the defendants with affirmative action in permitting other waters, slops and filth to drain into the pond and over
We have no doubt that so considered the petition states a cause of action, and is good against a demurrer, though much of its contents might have been stricken out on motion. While because of the Statute of Limitations already discussed, if for no other reason, the plaintiff cannot now complain that the embankments cause her land to be overflowed by water in its natural volume and state, it i's quite clear to us that to the extent plaintiff has been damaged through the pollution and artificial increase 'Of the waters which overflowed her lands, she has a right to recover against the defendants, they having caused or affirmatively permitted such pollution and artificial increase. [Gould on Waters (3 Ed.), sec. 278; Gawtry v. Leland, 31 N. J. Eq. 385; Lockett v. Fort Worth, etc. Ry. Co., 78 Texas, 211, 14 S. W. 564.] This was not the kind of damage which was a natural and necessary consequence of the original erection of the embankments and it could not have been recovered for in a single suit in advance, as could that which we have held is barred. Of course she cannot now recover for any damage, however caused, which has not accrued within five years before this suit was commenced, (Sec. 1889, R. S. 1909). The judgment is reversed and the cause remanded.
