66 Mo. App. 437 | Mo. Ct. App. | 1896
This is an action to recover damages for private nuisance. The petition alleged that defendant, Mary A. McMunigal, purchased two lots lying due south of and contiguous to the lots owned by plaintiff and on which there was located the latters’ dwelling house; 1 'that upon the purchase of said lots,
There was a trial and judgment for the plaintiff. The defendants appealed.
The defendants assign for error the action of the trial court in permitting the plaintiff, over their timely objections, to introduce evidence tending to prove the market value of the plaintiff’s property immediately before and after the erection of the defendants’ foundry. The admission of this evidence was an error, which was repeated by the court in giving the
In an action for a negligent injury to real estate, the rule of damages generally adopted is to allow the plaintiff the difference between the market value of the land immediately before the injury occurred and the like value immediately after the injury is complete. But this rule has no application to such nuisances as may be removed the day after the verdict, or for the continuance of which a second or third action may be maintained, or which may be abated at the instance of the injured party, by the order of a competent court; or, as stated by Wood on Nuisances, section 869: “Where the extent of the wrong maybe apportioned and does not go to the entire destruction of the estate, or its beneficial use, separate actions not only may, but must, be brought to recover the damages sus* tained.” The measure of damage is compensation for the loss actually sustained prior to the suit, by reason of the nuisance. Carson v. Springfield, 53 Mo. 289; Finney v. Berry, 61 Mo. 359; Brown v. Railroad, 80 Mo. 451; Bielman v. Railroad, 50 Mo. App. 151; Paddock v. Somes, 51 Mo. App. 320; Scott v. Nevada, 56 Mo. App. 191; Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Rock Island, 71 Mo. 575; Benson v. Railroad, 78 Mo. 575; Brown v. Railroad, 80 Mo. 457; Smith v. Railroad, 98 Mo. 20. As the plaintiff may bring repeated actions for the nuisance of which he
The defendants further complain of the action of the court in giving the plaintiff’s second instruction, which was as follows: “2. If you find from the preponderance of the evidence, that the defendants erected the foundry so near plaintiff’s dwelling in which he resides, and in operating said foundry caused smoke, cinders, dust, and dirt to fall in and upon and around plaintiff’s dwelling, or in operating said foundry caused noxious vapors, noisome smells, or corrupted the atmosphere tmd injured the health of plaintiff or his family, or injured plaintiff’s-property, or impaired the comfortable enjoyment of plaintiff’s dwelling, then your verdict should be for the plaintiff in such sum as you think he has been damaged, not exceeding $1,000.”
The injuries mentioned in the italics of this instruction are not among those detailed in the petition, as will be seen by reference to the allegations thereof. The rule is that if it is attempted to specify particularly the injuries resulting from the principal one, all that are designed to be proved must be stated. Pinney v. Berry, ante; Brown v. Railroad, ante. But the injuries just referred to were not only not detailed in the petition, but there was no proof whatever of their existence. It is true there was evidence adduced tending to show that by reason of the smoke, soot, and dust that escaped from the foundry into the plaintiff’ residence, his health was impaired; but as there was no corresponding allegations in the petition, such evidence should not have been admitted. Nor was there any proof whatever offered tending to prove the unalleged injuries specified in said instruction. The jury were authorized by this
And the fourth instruction given by the court on its own motion is subject to like objection and should not have been given. The fifth instruction, also given by the court on its own motion, leaving it to the jury to determine whether plaintiff’s property had been permanently damaged, was improper, since there was nothing in the petition, or the evidence, justifying the submission of any such issue to the jury. The sixth instruction, given by the court of its own motion, which told the jury that in passing upon the amount of damages the plaintiff had sustained, if any, to take into consideration that the plaintiff’s residence was situated in a populous city, and the kind of city, also its manufacturing and commercial interests, was out of place in the ease. The only damages which the plaintiff was entitled to recover, if, indeed, he was entitled to recover at all under the petition and evidence, were for the loss of the. rental value.
The second instruction asked by the defendant, to the effect that the measure of damages in the case was the difference between the rental value of the plaintiff’s premises before the foundry was erected and operated, and the rental value since the same was erected and operated, to the time of the institution of the suit, declared the proper rule, as applicable to the case, as is shown by the adjudged cases already referred to. The fourth instruction, requested by defendants, was unexceptionable in its enunciation and could with propriety have been given.
It follows that the judgment must be reversed and the cause remanded, which is ordered accordingly.