The plaintiff corporation brought this suit to enjoin the city of Joplin, a city of the third class having a population of ten or twelve thousand inhabitants, from building a public sewer over certain lands owned by plaintiff. The circuit court made the temporary injunction perpetual, and the city appealed to the St. Louis court of appeals. That court transferred the cause to this court because of certain alleged constitutional questions raised by plaintiff in support of the decree of the circuit court.
There is no dispute as to the following general outline facts of the case: The plaintiff corporation is the owner of the southwest quarter of the northwest quarter of section 2, etc., and also other lands north of and adjoining said forty acre tract. These lands are all on the north side of the city, but within the corporate limits thereof. Joplin creek enters the forty acre tract first above described near the southeast corner thereof and runs thence in |a northwest direction to a point near the northwest corner of said tract. There it passes over plaintiff’s land and runs in a general northern direction for the distance of two or three hundred feet and then turns to the east and passes northward over and across the lands of the plaintiff which adjoin and lie to the north of the forty acres firstbefore mentioned.
On the third of September, 1890, the city council
It is alleged in the amended petition that the city, without right or authority, entered upon the forty acres and began the construction of the sewer; that it proposes to build the same over the land without first paying the plaintiff the damages which it will sustain. The answer justifies under proceedings had to condemn the property. The evidence on these issues shows that proceedings to condemn the strip of land were had and the damages assessed at $500; that the plaintiff in
From the pleadings and evidence it appears that Joplin creek is fifteen or eighteen feet wide at the point where the sewer will discharge its contents. The banks at and below that point are low, the water shallow, and the course of the stream illy defined. The water has been used for washing lead and zinc ores. On rare occasions the creek becomes dry, but in general there is a considerable body of water flowing down through plaintiff’s land. The plaintiff produced much evidence tending to show that the sewer will pollute the water and render it useless, and that plaintiff’s land on either side of the creek will be damaged by reason of deposits thereon of sewer matter. On the other hand the defendant produced evidence tending to show that the water in the creek is now unfit for any domestic use, and that there is an abundance of water flowing down the same to carry off all the matter which will be discharged into it. In the view we take of this case it is not necessary to enter into the details of the evidence of the character just mentioned.
1. The proprietor of land through which a stream flows can not insist that the water shall come to him in the natural pure state. He must submit, and that, too, without compensation, to the reasonable use of it by the upper proprietors; and he must submit to the natural wash and drainage coming from towns and cities. But a city has no right to gather its sewage together and cast it into a stream so as to injure the lower
Section 1541, Revised Statutes, 1879, provides: “Public sewers shall be established along the principal courses of drainage, at such times, to such extent, of such dimensions and under such regulations as may be provided by ordinance.” And other sections give the city ample power to condemn private property for sewer purposes, the compensation to be áscertained by five freeholders to be appointed by the mayor. Secs. 1524 and 1544. The fair, and, we think, clear, implication of the language used in section 1541 is that the principal courses of drainage may be used for sewer purposes, until sewers are constructed along the same. Indeed, these courses of drainage constitute the only receptacles for such matter. We, therefore, hold that the city of Joplin has the right and power to construct the public sewer in question so that it will discharge its contents into Joplin creek. Whether the city can do this so as to create a public nuisance we need not inquire, for in our opinion the evidence makes out no such a case. It does, however, tend to show that the plaintiff’s lands will be damaged by the discharge of the sewer matter into the creek. Whether this damage would amount to the taking of private property for public use is not important to inquire; for our constitution declares that private property shall not be taken, or damaged without just compensation. If the
The question then arises whether this compensation can be awarded to the plaintiff in the comdemnation proceedings still pending in the circuit court. The ordinance condemning the strip of land does not, in terms, include the right to discharge the sewer matter into the creek but it stands as a conceded fact that such is the intention of the city. . The sewer, as it is being constructed, can be used only by making the creek the point of discharge.
In Railroad v. Baker, 102 Mo. 559, we said: “The corporation exercising the right of eminent domain can not avoid the payment of the damages done to the entire farm by selecting out and describing in the petition the forty acre tracts through which the road may be located.” All damages to the land not taken by reason of the use to which the part taken is to be put, should be taken into account. Railroad v. Porter, 112 Mo. 368; see cases cited in note to Railroad v. Waldron, 88 Am. Dee. 114. The fact that the ordinance •does not, in terms, undertake to acquire the right to use the stream as an outlet for the sewer is immaterial. All damages to the lands of the plaintiff not taken, arising from the use of the stream as an outlet for the sewer, can therefore be taken into account in assessing damages in the proceedings to condemn.
With this conclusion the question arises whether the plaintiff can have injunctive relief. Where the law affords a full and adequate remedy, equity declines to interfere. Railroad v. Maddox, 92 Mo. 469. Where, as here, the law authorizes a city to condemn private
But it is insisted that the rule just stated can not apply to this case, because the proceedings to condemn were, and are, illegal and void.
To show that-they are void, counsel for plaintiff base their argument on the erroneous assumption that ordinance 342 is relied upon as of itself constituting the condemnation; and it is then argued that the ordinance was enacted without notice to the plaintiff corporation, so that it had no opportunity to show that the use proposed to be made of the property was not a public use, or that there was no public necessity for the sewer. It is true that the ordinance provides that the described property “is hereby taken and condemned,” but it also provides that just compensation shall be paid therefor. The ordinance did not, of itself, amount to a condemnation of the land. It simply laid the foundation for the subsequent proceedings. The law gives the property owner no right to demand notice of the proposed passage of the ordinance. He is, however, entitled to notice of the condemnation proceedings, and such notice was duly and properly given.
The question whether the contemplated use of the-property is really a public use is a judicial question, and will be determined by the courts without any regard to any assertion of the city council that the proposed use is a public use. (Sec. 20, art. 2, const.; 91 Mo. 54; 98 Mo. 215; 101 Mo. 406). But it is for the city council to determine the question whether the public welfare requires or makes the sewer necessary or expedient. With that question the courts have nothing to do, for the law has confided it to the judgment of the city council. See authorities last cited, and 11 Mo. 242.
Section 1541, Revised Statutes, provides, among other things, “that no sewer shall be run diagonally through private property when it is practicable, without injury to such sewer, to construct it parallel with one of the exterior lines of such property, nor shall any public sewer be constructed through private property when it is practicable to construct it along or through a street or other highway.” Evidence was introduced tending to show that this sewer could have been built along streets; and on the other hand much evidence was introduced tending to show that the sewer could not be constructed along streets without impairing its usefulness and greatly increasing the cost thereof. It is enough to say a very strong case should be presented to justify the courts in interfering with the judgment of the city council on such a question; and no such a case is presented by this record.
It appears the plaintiff’s grantor laid off a few lots on the south side of the forty acre tract and filed a plat thereof in the recorder’s office. The sewer passes
Various other minor objections are made. It is sufficient to say they lay no foundation whatever for equitable relief. The plaintiff can assert and have all of its rights determined in the condemnation proceedings appealed by it to the circuit court. There is, therefore, no case here calling for equitable interference. The judgment is reversed and the petition dismissed.