174 Mo. App. 462 | Mo. Ct. App. | 1913
This suit was instituted March 9, 1911, in the circuit court of Adair county by Lida Hanlin and her minor son, John, against the defendant corporation to recover damages resulting from the pollution by defendant of a natural stream flowing across land owned by plaintiffs near the city of Kirksville. A trial of the issues raised by the pleadings resulted •in a verdict and judgment for plaintiffs in the sum of $250, and the cause is here on the appeal of defendant.
It appears that John Hanlin who now is of lawful age was only twenty years old at the time the suit was brought and that his attorneys, not' knowing of his minority, acted in his behalf as though he were sui juris.
Counsel for defendant argue thát since the statute (Sec. 1745, Rev. Stat. 1909) requires that “the petition for the appointment of a next friend, the written consent of the person proposed to be next friend and the order of appointment shall be filed in the office of the clerk of the. court where the suit is proposed to be brought, before any proceedings shall be had in the cause,” the failure to procure the appointment of a next friend before the filing of the petition constituted a jurisdictional defect fatal to the prosecution of the' suit and which could not be cured by a subsequent attempt to comply with the statute.
The statute quoted contemplates that a minor, possessed of a cause of action, shall have the benefit of adult agency and judgment before any step is taken in the prosecution of his case and the Supreme Court observed in Holton v. Towner, 81 Mo. l. c. 367, that the appointment of a next friend “can only be made at the time and in the manner pointed out by the statute,” and held in Casler v. Chase, 160 Mo. 418, that the petition should allege facts showing compliance with the statute.
But in a number of cases the Supreme Court hold that the appearance of an infant plaintiff in court without a guardian or next friend does not close the door of the court against him but imposes a duty on the court to appoint a guardian to represent him. The court say in Cochran v. Thomas, 131 Mo. l. c. 275: “It appears, therefore, that a minor, as he may be brought into court as a defendant by service of process, so he may submit himself to the jurisdiction of the court as a plaintiff, after which in either case it becomes the duty of the court to appoint a guardian ad litem to represent him.”
And in Padgett v. Smith, 206 Mo. l. c. 313, it is said: “There is no merit in the contention of want of jurisdiction. The defendant Smith was duly served, appeared, answered and went to trial. Those steps closed the question of jurisdiction as to his person. The jurisdiction of the infant plaintiff is also un
Following these cases.we hold that the court acquired jurisdiction over the infant plaintiff and his cause and became charged with the duty on the discovery of his minority of appointing a next friend to represent him. Further we may add that the Statute of Jeofails (Sec. 2119, Rev. Stat. 1909) contemplates that such jurisdiction may be acquired without literal compliance with the statute relating to the appointment of a next friend. The seventh clause provides that no judgment recovered by an infant shall be reversed or impaired because the plaintiff appeared by attorney and not by next friend or guardian.
Since the court had jurisdiction over the minor plaintiff and the cause of action, no error was committed in appointing a next friend to represent him during his minority.
In 1910, defendant built and began operating a meat packing plant on land near that owned by plaintiffs and it is charged in the petition that highly offensive and deleterious fluids and substances were constantly being emptied from the plant into the stream which flows thence across the land of plaintiffs. The evidence of plaintiffs tends to show that the pollution thus cast upon their premises has made the wa: ters of the stream unfit for use, the dwelling house untenantable and has destroyed a well near the bank of the stream. The evidence of defendant is to the effect that the plant is under Government inspection, is op
Those were cases where a city constructed a public sewer system in a way to collect and empty sewage into a'natural stream to the injury of a servient proprietor. Both the Supreme Court and this court held the damages were permanent on the theory that the sewer was a permanent structure, that its continued use by the city could not be prevented by íaw and that in legal effect the land of the complaining plaintiff had been appropriated for public use without just compensation. As is said by the Supreme Court in Smith v. Sedalia, 244 Mo. l. c. 122:
‘ ‘ This suit is not grounded upon trespass merely, nor upon nuisance, although the injury takes the form of a nuisance, but upon the constitutional right to compensation for property damaged for public use (Webster v. Railroad, 116 Mo. l. c. 118; Turner v. Railroad, 130 Mo. App. 540); and it is so argued in plaintiff’s brief. The city, by proper proceedings to that end, had the right by statute to secure the use of this stream
“Both suits brought by plaintiff are, substantially, actions for damages for injury to his land resulting from a wrongful appropriation by the defendant city. He concedes the right of the city to condemn, and complains because it has not done so, insisting in effect that the city shall put him in the position to claim permanent damages; but by his 1895 suit he has put himself in position to claim the same measure of damage in full compensation for the injury.”
In the present case a dominant proprietor has set up a nuisance to the injury of his servient neighbor that may be abated or discontinued at any time and, therefore, is of a temporary nature. The rule in such cases is not to measure the damages by the depreciation in the market value of the land, but to allow the plaintiff to recover for loss and damage to the comfortable use or rental value of the premises caused by the temporary nuisance to the time of the commencement of the action, together with such special damages as may be shown by the evidence to have resulted directly therefrom. On the showing made by plaintiffs they were entitled to damages resulting from loss to the rental value of their property to the date of the filing of the suit and from the permanent injury to the
The judgment is reversed and the cause remanded.