68 Mo. App. 350 | Mo. Ct. App. | 1897
This is an action for damages arising from an alleged nuisance created by the defendant, coupled with a count in equity praying an injunction to restrain defendant from continuing said nuisance: The count at law vvas tried by jury, resulting in a verdict for $25 in plaintiff’s favor; a trial by the court of the injunction branch resulted likewise in a judgment for plaintiff, and defendant appealed.
Since September, 1892, the plaintiff is and has been the owner and in the possession of forty acres of land, the south line of which comes within about eight hundredfeet of defendant’s canning establishment, which was erected and supplied with the necessary machinery in the early part of the year 1894. The business of canning and preserving vegetables, including tomatoes, corn and other products, was begun by the defendant about the first of August, 1894.
The petition alleges: “that in conducting'such canning business, by the defendant, there has been, and still is being produced a large amount of slops, refuse matter, waste water, decayed vegetables, spoiled cans, and spoiled canned products, corncobs, shucks, tomato skins, and other waste matter, and that defendant, instead of retaining such refuse matter, slops, waste water, and substances on its own premises, or burning, burying, or otherwise disposing of them on its own premises, has since said commencement and during the
It seems that one Koppenbrink owned the land between the defendant’s canning establishment and plaintiffs’ property, and that the company was permitted to use Koppenbrink’s land for dumping the refuse matter, decayed vegetables, waste water, slops, etc., from the cannery. The land immediately north of the cannery was a little higher than at the building. It then sloped north, so that water or refused matter would flow north over and into a ravine or branch and thence on further north across plaintiffs’ forty acres, which was lower still than the land of Koppenbrink.
It seems that from this canning business there accumulated a large amount of stale and decayed
We have examined the several points made by the defendant in relation to the pleadings and find in none of them any substantial merit. The pleadings on both sides were unnecessarily lengthy and somewhat prolix. And while the court may have stricken out allegations that of themselves were not really objectionable, still
At the oral argument and in brief, defendant’s, counsel charge that the petition failed, to state facts sufficient to constitute a cause of action, in that it was not alleged ‘.‘that the acts complained of were done either negligently, unlawfully, maliciously, knowingly, or willfully.” In view of the liberal rules that should attend the construction of pleadings under the code, we think the objection not well founded. Litigants are directed by our code of civil procedure to make “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition” (section 2039) ; that “no allegation shall be made in a pleading which the law does not require to be proved, and only the substantive facts necessary to constitute the-cause of action or defense shall be stated” (section •2055), The courts are also admonished that “in the-construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.”' Section 2074. And that the appellate courts “shall, not reverse the judgment of any court, unless it shall believe that error was committed by such court against, the appellant or plaintiff in error, and materially affecting the merits of the action.” Section 2303.
So, too, it may be said of the court’s refusal to strike out part of the reply. The allegations objected to did not in fact constitute new matter, nor was the reply a departure from the cause of action set out in the petition. It was, at most, an unnecessary elaboration of the allegations already made; and since, too, it appears that in the introduction of evidence both parties went over the entire field covered by the reply, it must be seen that these unnecessary allegations in the reply did no harm.
In defendant’s brief it is claimed that, notwithstanding an actionable nuisance may have been created on plaintiff’s land, yet she waived the same in that she “stood by without complaint and acquiesced in the erection of the buildings, the laying of the pipe and the scattering of the refuse matter on the Koppenbrink land.” There is neither fact nor theory of law or equity to furnish a basis for this defense. There was
Neither can defendant escape liability on the claim that this refuse matter and decayed vegetables were carried down the ravine and onto plaintiffs’ land by force of a violent rainstorm — a damage from which, counsel say, defendant is not liable. For, whether the damage is attributable ■ to the acts of the defendant
Some general objections are made to the court’s instructions in submitting the damage count to the jury. We have examined them in detail and find no reason to condemn or even criticise them. They were entirely fair to both sides.
After a careful consideration of this entire record, we feel constrained to declare that the plaintiffs have a meritorious case, that the judgment on both counts is for the right party, and must be affirmed.