230 S.W. 352 | Mo. Ct. App. | 1921
This cause is in mandamus to compel the defendant city to abate a nuisance. On trial what might be termed a judgment of peremptory mandamus was rendered directing the abatement of the nuisance. From this judgment the defendant city appealed.
Near the defendant city, but just beyond the corporate limits, is a creamery from which the washings and waste are discharged into a drain or branch. This branch passes near relator's dwelling. The waste discharged does not pass down the branch and away, only at intervals, because the branch does not flow freely only after heavy rains. The consequence is that the waste gathers along in pools and gives off a very offensive odor, and according to the evidence is a nuisance. It appears also that a part of the stench may be due to the sewage from a hotel and a railroad building. Relator after describing the nuisance alleges that same could be abated by piping at small expense to the city.
Defendant in its return filed what may be considered as a demurrer, but coupled with it allegations to the effect that the city is "broke" and is already taxed and bonded to the legal limit. No answer or pleading to the return was made, but no point is made in this respect.
That relator and others similarly situated have suffered and are suffering a grievous wrong, there is no *4
doubt. The mayor and other city officers who were witnesses admitted in effect that relator's grievance was well founded, and no one even intimated that relator had in anyway magnified the discomfort and menace that are ever present at his home and that of his neighbors. Will mandamus lie? Defendant is a city of the fourth class. The statute, section 8694, Revised Statutes 1919, gives authority to the city to abate this nuisance. It is held in Sallee v. St. Louis,
In State ex rel. v. Bersch,