65 Mo. App. 134 | Mo. Ct. App. | 1896
This action is for damages alleged to have been the result of the defendant city having caused certain sewers to discharge sewage collected from the city into a running stream of water near plaintiff’s property, whereby the stream became polluted with filth and emitted offensive smells to the extent of injuring plaintiff’s property, both permanently and temporarily. The judgment was for plaintiff on the first and third counts of his petition; the first, for permanent injury, and the third for injury in the loss of rent on his property and the destruction of his business as a shoemaker.
It appears that the stream, alleged to have been made a nuisance by pollution of its waters, was what is known as O. K. creek, and that it ran through the defendant city, a distance of three miles or more. That it was the drainage for a large part of the lands upon which the city is built. That in the year-the city began the construction of a sewer in and near this creek, intending, practically, to transform the creek into a large covered, or underground, sewer. That the plan adopted by the city was to build the sewer in sections, and that a large part of it had been built at the time of the institution of this suit. That there was, for some time before the suit was brought, a cessation in the construction of the sewer and the completion of the
It appears to be clear that the injury to plaintiff’s property is of a temporary nature, having in it no element of permanency, as that term is understood in the law of nuisances. The injury has resulted from a temporary, not a permanent, cessation of a public work. When the work is continued, the nuisance necessarily ceases. There is a character of nuisances which may even affect the value of the land as an inheritance, after the nuisance has been abated, or otherwise ceases to exist. Such was said to have been the character of the nuisance in Babb v. University, 40 Mo. App. 175. But it is evident that this is no such case. ■ This is a nuisance in reality, caused by a public work, which can and will be abated. When the nuisance is not permanent — is such as may be abated, and for the continuation of which other actions may be brought — permanent damages are not properly allowed. Givens v. Van Studdiford, 86 Mo. 159; Carson v. City of Springfield, 53 Mo. App. 289.
Notwithstanding the nuisance here complained of may have been a public nuisance, yet, if plaintiff suffers from it some special damage, over and beyond that suffered by the community in general, he may have his action, even though it be true that others similarly situated to him might have a like action. Givens v. Van Studdiford, supra. And it does not affect this right, in an action of this nature, that the property injured
For the error in allowing damages for permanent injury, the judgment will be reversed and the cause, remanded.