Schumacher v. Shawhan

93 Mo. App. 573 | Mo. Ct. App. | 1902

BBOADDUS, J.

This is an injunction proceeding to restrain the defendant from polluting the waters of a certain stream that runs through the plaintiff’s land. The defendant is the owner and operator of a distillery situated on said stream above the lands of the plaintiff. The judgment of the trial court was in favor of the plaintiff and a restraining order was issued from which the defendant appealed. The stream in question, after flowing through defendant’s premises and one or two other owners of land, reaches plaintiff’s land. The stillhouse in question has been in operation on a small scale more or less for about forty years. At this stillhouse are distilled, in certain months of the year (in the winter and spring) whiskey made from grain, and brandy made from apples. The plaintiff claimed that the offal from said still-house that was run into the stream polluted its waters to such an extent as to render it unfit for domestic use and for drinking water for his animals. This is denied by the defendant, who pleads the right to run the refuse of his still into the stream by prescription, and that the plaintiff by his conduct is estopped from complaining of the alleged pollution of said waters. There was evidence on both sides of the controversy, the plaintiff and his witnesses testifying in the most unqualified terms that the refuse, particularly of the apples distilled, made the water of the stream so foul and stinking at times that neither men nor animals could use it; on the other hand, defendant’s evidence was equally as positive that the said refuse did not befoul said water; on the contrary, it did not make it unpleasant for man; and that it gave it an appetizing effect on the beast. Such being the character of evidence on both sides we will not review it, the judge who tried the case below being much better qualified to weigh the force of the testimony than we are, as he had all the witnesses before him and could weigh their evidence and give to each that degree ■of credit he was entitled to.

Eor the reason that the defendant and his grantors had been using said stream for the purpose of disposing of the refuse of the-distillery during so many years, he claims that he has the prescriptive right to continue to so use it. It is not denied that such a right may be acquired. But it is asserted, as a matter of fact, that until within a few years last past the right heretofore enjoyed by the owners of said distillery was so exercised as not to render the waters of said stream unfit for use. In July, 1900, the defendant became the owner of the distillery property, purchasing the same from one Joffee. The testimony is to the effect that there was no complaint made, until shortly before defendant so purchased of said Joffee, of any bad effect upon the water of the stream by reason of its use in carrying away the refuse of the distillery, and that its use during all the previous years for such purpose had not in any material respect rendered the water unwholesome for use to other proprietors owning servient lands through which the stream flowed. And this evidence stood uncontradicted. Such being the case the defendant acquired no prescriptive right to pollute the waters. The rights enjoyed for so many years to use the stream for running off the refuse of the distillery being of such a nature as not to interfere with the lower proprietors, was not a prescriptive right but a property right belonging to the fee vested in the owners of the land. It was a part of the estate itself. Every owner has the right to use a stream of water flowing through his premises in such a manner as not to interfere with its use by his neighbors through whose lands it also flows.

It was shown by defendant by way of estoppel that when he bought the property pn July, 1900, he proceeded to make extensions and costly improvements for the purpose of facilitating the business of distilling; and that the plaintiff had full knowledge that he was making such improvements, and of their purpose, all of which was done without plaintiff’s protest or notice that defendant would not be permitted the use ■of the stream to discharge the refuse of his distillery. We can not see how such conduct on the part of the plaintiff would act as an estoppel. To so hold would be to assume that when the plaintiff saw the defendant making said improvements he knew that he was preparing to commit a nuisance and that by his silence he must be presumed to have given his consent. We think that the presumption would be to the contrary and that one improving his own property was doing it for a lawful purpose and not for the purpose of injuring his neighbor. Had defendant disclosed his purpose to plaintiff, and that the business he intended to carry on would render the water in the stream unfit for use, and had plaintiff acquiesced, then he would have been estopped. But he did not disclose any such purpose. In fact, he is in court at this time asserting that the use to which he puts said stream does not render it unfit for use. This attitude, to say the least of it, is inconsistent and untenable. Eor it is not consistent to plead that he did not do a thing and at the same time assert that plaintiff consented that he might do it.

The judgment making the injunction perpetual is such as not to interfere with the defendant’s use of the stream for the purpose of carrying off the refuse of his distillery, but to restrain him from using it in such a way as to render its use unfit for stock; and if it has been só used for so many years without impairing its usefulness, we do not see that defendant has any ground-for complaint The cause is affirmed.

All concur.