Walther v. City of Cape Girardeau, 166 Mo. App. 467

166 Mo. App. 467 | Mo. Ct. App. | 1912

REYNOLDS, P. J.

— In March, 1910, the city of Cape Girardeau, a city of the third class, cut a ditch ninety feet in length, width not given, but apparently about three feet, through and across a lot owned by plaintiff fronting on Frederick street in that city and constructed a permanent sewer therein partly of twenty-four inch and partly of eighteen inch pipe, connecting the same with a thirty inch sewer pipe which the city had before then laid under Frederick street when it filled up that street. The city had no permission or authority from plaintiff to cut through his lot and lay this pipe but claimed the right to do so under its authority to abate a nuisance. The nuisance complained of is claimed to have been created by plaintiff filling his lot up to the grade of Frederick street and thereby stopping the flow of water from low ground to the west of his premises and from the lands of others through plaintiff’s lot and thence into the sewer pipe which had been laid by the city under Frederick street. Preliminary to cutting the ditch through plain-ti’s property and laying the sewer pipe in it, the city caused a notice to be served upon the plaintiff that the stopping and filling of the drain and sewer pipe on Frederick street by him, adjacent to and in front of his lot had caused the water to accumulate in the “ditch, drain, depression and watercourse” above where plaintiff had stopped and filled the sewer pipe and drain and had caused water to stand in that place to a depth of three or four feet, covering an area of about 1000 square yards, forming a pond of “stagnant, filthy, obnoxious water and' giving rise to obnoxious and offensive and disagreeable odors, and is now, and will grow worse as the weather gets warmer, a public nuisance, endangering the public health, and is a source of disease, to the great danger, damage, injury and annoyance of the public.” Plaintiff was therefore notified that acting under the order of the acting mayor and in accordance with the provisions of the ordinance of the city, he was notified by the chief of police to open the drain and sewer pipe closed by him or cause it to be opened within twenty-four hours of the service of this notice or to signify his willingness that the city officers might enter on his premises and make the proper opening and drain to remove the water and so abate the nuisance. Plaintiff was further notified that if he failed or refused to comply with the demand and request the chief of police would take the necessary steps to drain the pond or pool and abate the nuisance by making an opening through plaintiff’s lot and laying a drain pipe to connect with the one closed by him. This notice was served on the plaintiff on the 23rd of March. It appears by the testimony that on receipt of this notice plaintiff told some one of the officers of the city that he wanted a little time to consult his attorney about the matter and he thereupon telephoned to his attorney, who resided at Jackson in Cape Girardeau county, who told him that he would come down and examine into the matter in a day or two. At the expiration of the twenty-four hours, however, plaintiff not having taken steps to remove the obstruction by cutting a ditch through his premises and not having signified his willingness or given permission to the city to do so, the officers of the city, over the protest of plaintiff, entered upon his lot on Friday, the 25th of March, preliminary to doing the work of cutting the ditch through his premises. On Saturday, the 26th, plaintiff caused a notice to be served upon the mayor of the city that on Monday, at 2 o’clock p. m., he would present his application to the judge of the Cape Girardeau Court of Common Pleas in chambers, asking for a restraining order against the city. Without paying attention to this notice, the officers of the city on that Saturday, the 26th, commenced cutting the ditch clear across plaintiff’s lot, a ditch some seven feet in depth at Frederick street and a foot or so deep at its western end, and with a force of from seven, eight or nine men, possibly more, kept up the work all during Saturday and until late Saturday night and all through Sunday until late that night and on Monday morning completed the work by laying the sewer-pipe through the whole width of plaintiff’s lot, cementing its joints and then filling up the trench. The petition for the writ was filed with the court named on the 26th, hut the work having then been finished, the cause went over to the November, 1910, term of the court. At that term defendants answered, the city in its separate answer justifying on the ground that the filling up of the lot by plaintiff in the manner filled by him was a nuisance in that it obstructed the flow of the water from the low ground to the west of him, it being set up in the answer that there was a natural watercourse and that the water in this pond or low land west of plaintiff was formed in part from springs and in part from waters falling from the heavens as also in part from water which flowed into it from a drain under the fill of the street next west of Frederick street. The individual ■defendants answered separately with general denials, two of the defendants however also pleading that while they were members of the city council at the time the alleged acts were committed, their terms had since expired and they were no longer officers of the city. On the hearing of the cause the court entered up an order sustaining plaintiff’s petition and ordered the city to remove the sewer pipe and fill up the ditch on or before the 10th of February, 1911, and thereafter refrain from entering upon the lot of plaintiff and digging any ditch or trench or constructing any sewer pipe through it. From this defendants, filing their motion for a new trial and saving exceptions to that being overruled, have duly perfected their appeal to this court.

It is argued by the learned counsel for appellants that plaintiff had no right to stop- up the drain and cause a pond tó be formed on the adjacent lots to the injury of the owners and to the damage and injury of the public. They introduced much testimony in an endeavor to prove that the pond spoken of was formed in part by springs and that a ravine, which they claimed was a natural watercourse, led from that through the property of plaintiff and into the sewer under and across Frederick street and claimed that plaintiff, as the owner of the subservient or lower lot, had no right to interfere with the natural flow of the water.

It is entirely unnecessary to consider this phase of the case. While the private owners of what is referred to by the courts and text-writers as the dominant estate, that is property situated above or higher than that of the lower or subservient estate, have an undoubted right to apply to the courts for the protection of their land from what may be claimed to be illegal acts of the owner of the subservient estate in stopping the flowage of water, we know of no case and have been cited to none where a city or other public body, not the owner of the dominant estate, has any right to appeal to the courts for the protection of any claim to the flowage of water, that water not being a public or navigable stream. This is so whether the doctrine of the civil law or of the common law is to be applied. In our state, as was definitely determined in Abbott v. Kansas City, St. J. & C. B. R. Co., 83 Mo. 271, the common law rule as to the stoppage of surface water prevails.

Before dismissing this phase of the case from consideration, it is not out of place to remark that the overwhelmning weight of the testimony establishes the fact that there has never been a watercourse, in the legal meaning of that term, through the property of plaintiff. 'All the water which it is claimed that he prevented flowing through his lot was surface water, water falling either from the clouds or led into the pond through a sewer pipe that the city had itself laid into this low ground and under the street and an alley to the west of it. There is no substantial evidence that natural springs supplied the water. It was not a watercourse through plaintiff’s property. [Gray v. Schriber, 58 Mo. App. 173, l. c. 178, and cases there cited.] Plence this water was surface water, and applying the doctrine of the common law, surface water being a common enemy, every owner has a right to protect himself against its flow over or upon his land. It cannot be said that when he does this that his act is either unlawful or that he is responsible for the effect of preventing the overflow on his land of this surface water.- [Jones v. Wabash, St. L. & Pac. Ry. Co., 18 Mo. App. 251, l. c. 257, approved Webb v. Carter, 121 Mo. App. 147, l. c. 153, 98 S. W. 776.]

The nuisance complained of is not on the land of this plaintiff but it is on private property of adjoining owners. If it could be held that because the owner of the lower estate, in protecting his own property against surface water, is liable in damages as for a nuisance because of the stoppage of the flow of surface water over his property, then the whole doctrine upon which the right of stoppage of surface water is based would be overthrown.

In illustration of the law as applicable to the right of stoppage of surface water, it is sufficient to refer to Abbott v. Kansas City, St. J. & C. B. R. Co., supra, and cases there cited and those which have followed that case in our state. Referring to decisions of other jurisdictions the matter will be found very fully and ably treated in Hoyt v. City of Hudson, 27 Wis. 656; O’Connor v. Fond du Lac, Amboy & Peoria Ry. Co., 52 Wis. 526; Gibbs v. Williams, 25 Kan. 214. See also 1 Wood on Nuisances (3 Ed.), pp. 494, 517, sections 378, 385.

But it is urged that the power of the city to declare a nuisance and the right to abate it by summary process is granted by statute as well as provided for by ordinance; that the courts cannot interfere. While it is true that the municipalities of this state have a right to declare what constitutes a nuisance and to abate nuisances even in a summary manner, it does not follow that in doing this they are above the law; they must abate a nuisance in a lawful manner, and always subject to determination by the courts, both as to the fact of nuisance and as to the manner of abatement. The power to abate does not carry with it the power to destroy (Waggoner v. City of South Gorin, 88 Mo. App. 25, l. c. 34, and authorities there cited), unless it be a nuisance per se and of a public character. [Sullivan Realty & Improvement Co. v. Crockett, 158 Mo. App. 573, 138 S. W. 924.]

Judge Dillon announces as the law, that when the governing body of a municipality has conferred upon it the power to do an act, the power conferred in general terms without any prescribed mode of exercising it, that it necessarily has to a greater or less extent a discretion as to the manner in which the power shall be used, which cannot be judicially interfered with, but that this discretion is subject to judicial control when the power is exceeded “or there is a manifest invasion of private rights.” [I Dillon on Corporations (5 Ed.), sec. 242.] “So,” says Judge Dillon, ibid., sec. 243, “where it is made the duty of the city to remove, as far as they may be able, every nuisance which may endanger health, the courts, unless the power be transcended, cannot ordinarily interfere to control the manner in which this shall be done. But the power to abate nuisances, like all other municipal, powers, must be reasonably exercised; and although the power be given to be exercised in any manner the corporate authorities may deem expedient, it is not an unlimited power, and such means only are intended as are reasonably necessary for the public good; wanton or unnecessary injury to private property and private rights are not thereby authorized.”

In the case at bar the city authorities, without giving plaintiff any chance to be heard, proceeded to condemn the fill, which plaintiff had lawfully made on his own land, as a nuisance, although the water which was the real nuisance was on the land of another; and without having instituted and maintained any condemnation proceedings whatever for the taking of the plaintiff’s property for the location of a sewer through his lots, and without his permission but in spite of his protest, entered upon his land by force and with a high hand, as the law construes the acts here done by these defendants, and-committed a trespass upon his property. They did this with such expedition and with such force that before plaintiff had an opportunity to have the courts act, the acts of cutting the ditch, laying the pipe and filling up the excavation were completed. We are not to be understood as holding that there may not be extreme cases in which it is the right and duty of the municipal authorities to act promptly and in a summary manner. But this was not such a case. There was no necessity for haste and it is not clear that the city could not have abated the nuisance which the presence of the pond created, that nuisance, as the evidence shows, largely created by the inflow of water from the sewer under the street to the west of plaintiff’s property. If the city could have abated the nuisance of the pond in other ways than forcibly taking possession of plaintiff’s lot, it was its duty to do so. [Waggoner v. City of South Gorin, supra; Babcock v. City of Buffalo, 56 N. Y. 268.]

The right of the court to interfere here by mandatory injunction is challenged, the acts having been completed before the court could hear and determine upon them.

The right of the courts, to issue mandatory injunctions has been recognized by our courts in many cases. We had occasion recently to pass on this matter ourselves and to cite some of the cases in which that right had been recognized. [See Compton Hill Improvement Co. v. Strauch, 162 Mo. App. 76, 141 S. W. 1159.] We had in St. Louis Safe Deposit & Savings Bank v. Kennett’s Estate, 101 Mo. App. 370, 74 S. W. 474, a case in which a mandatory injunction was issued by the trial court and its action fully sustained by our court, an example of a completed structure ordered to be removed after its completion. In that case Judge Goode, who wrote the opinion, has gone into the authorities so fully, that to undertake to discuss this branch of the case would be a work of supererogation.

In Planet Property & Financial Co. v. St. Louis, O. H. & C. Ry. Co., 115 Mo. 613, 22 S. W. 616, a mandatory injunction was sought to undo the acts of the railroad company in digging a cut through certain property and to restore the road through which the cut was made to its former condition. The injunction was refused solely on the ground that plaintiff had failed to aver in its petition that it had objected and notified the defendant of its objection while the road was being built.

In the case at bar there was not only no acquiescence or. consent but there was determined and positive objection, followed by an appeal to the court, of which appeal defendant was duly notified before it had completed the acts sought to be enjoined.

Treating of interlocutory injunctions, Mr. High says (4 Ed., vol. 1, p. 10, sec. 5a), that since the object of a preliminary injunction is to preserve the status quo, the court will not grant such an order where its effect would be to change the status and that by the “status quo’’ which, will be preserved by preliminary injunction “is meant the last actual, peaceable, non-contested condition which preceded the pending controversy, and equity will not permit a wrongdoer to shelter himself behind a suddenly, and secretly changed status, although he succeeded in making the change before the hand of the chancellor has actually reached him. And where, before the granting of the injunction, the defendant has .thus changed the condition of things, the court may not only restrain further action by him, but may also, by preliminary mandatory injunction, compel him to restore the subject-matter of the suit to its former condition.” It is true that the author is here treating of a preliminary order of injunction, but we know of no reason why the same rule should not apply to an injunction on final hearing.

Applying it to the facts in the case at bar, it appears that this plaintiff, in a peaceable and orderly manner, and in a lawful effort to protect liis rights, denied that he was responsible for the maintenance of the alleged nuisance, and notified the city authorities not to enter upon his lot for the purpose of digging it up and laying the proposed sewer through it. Having reason to believe that in the face of this notice the city authorities proposed to go on with their threatened trespass on Saturday, plaintiff caused written notice to be served upon the proper officer of the defendant municipality, that on the following Monday he would apply to the judge of a court having jurisdiction in the premises for a temporary injunction restraining them from commencing the threatened work and on final hearing for an injunction perpetually enjoining them from entering oh his premises and carrying out the work. Upon the receipt of this notice the municipality, that municipality itself a creature of the law and its officers the servants of the people, charged above all others with the execution and proper observance of the law, on tbe very day of the service of this notice, with a high hand and by force, says the law, designating such acts vi et armis, these officers entered upon the premises of plaintiff, put a large body of men at work digging a trench ninety feet long and some three feet or more wide through the whole length of the lot of this plaintiff, in direct violation of the law of the land which prohibited the doing of any but necessary work on the Sabbath day, continued this work on through that day and through the forenoon of Monday, so that when at the hour designated on Monday, that is to say 2 o ’clock, the petition in this case was presented to the honorable judge of the court of common pleas, the work of digging the ditch, laying the sewer pipe in it and through the whole length of plaintiff’s lot, and filling up the ground, was completed. Having completed the trespass these defendants now say: “You cannot make us undo what we have done — sue us at law for damages.” If individuals, or municipalities, by such high'handed proceedings, tending to a breach of the peace, and in flagrant disrespect of the courts and in an attempt to thwart their jurisdiction, can, in this manner, evade the power of the chancellor and put the process of law and the orderly proceedings of the court at defiance in an attempt to. render any action the court may take abortive, we have a government of force and not of law. Much more is this course to be deprecated and condemned’when the instigators, promoters and executors of it are themselves officers of the law and representatives of one of the most important municipalities of the state.

We therefore hold that it was within the power of the trial court to issue the mandatory injunction in this case compelling the undoing of what had been done, especially so when in all good conscience and by the usual course of procedure that court had been appealed to to exercise its chancery powers in the premises.

In an endeavor to drive the plaintiff from the conrt in this case, defendants not only assert that the action came too late and that the powers of a court of chancery, through a mandatory injunction, cannot be invoked to undo what they had done, but they claim that plaintiff has an adequate remedy at law in an action for damages.

Mr. High, in his standard work on Injunctions (4 Ed., vol. 1, p. 686, sec. 722b), says that an examination of the later authorities upon the subject of injunctions against trespass “discloses a decided tendency to adopt the adequacy or inadequacy of the legal remedy as the sole and ultimate test as to the right to equitable relief in such cases, and it will be seen that the question of irreparable injury is of importance only in so far as it bears upon this fundamental question of the legal remedy. While courts have, perhaps, never in express terms laid this down as the sole criterion, it will be seen that injunctive relief is freely granted regardless of the irreparable character of the injury inflicted, where it appears for any reason that full and complete redress may not be had in a court of law. Such considerations as those of a multiplicity of suits, the continuing nature of the trespass, the insolvency of the defendant, numerous acts where the damages for a single one would be insignificant, and the difficulty of proving or measuring the damages, all of which concern the remedy and not the wrong, and all of which have come to be of such controlling force, show beyond question that it is not so much the nature or kind of the wrong complained of as it is the relative efficiency of the legal as compared with the equitable remedy, which furnishes the fundamental, governing rule by which courts of equity are guided in administering preventive relief against the commission of a trespass.”

In line with this we have the authority of Judge Dillon, where, in chapter 31, sections 1570, 1572, supra, he says that while courts of equity do not, as a rule, interfere to prevent municipal authorities from transcending or making a wrongful use of their powers, they will, in a proper case relieve against their unlawful or wrongful acts. “But,” says Judge Dillon, section 1573, “since municipal corporations are invested with large powers to enable them to execute specific objects, or to promote the welfare of the people who are subjected to their rule; and since experience shows how frequently their officers abuse or transcend their rightful authority to the detriment or injury of the inhabitants, and how necessary it is that the latter should have easy and effectual remedies to restrain or correct municipal excesses of power; and perhaps because in the code states the ancient line of separation between law and equity is not so distinctly maintained as formerly, the general tendency of the later cases is to favor a relaxation rather than a strict application of the rule . . . which denies the right to resort to equity if there exists an adequate remedy at law.” i

Applying these rules to the facts here, it is not clear that plaintiff has a certain and adequate remedy at law. Furthermore, it is apparent that the presence of this sewer pipe in plaintiff’s lot is a continuing damage and nuisance. Plaintiff testified that this sewer in his lot would forever prevent him from improving the lot by the erection of a building upon it; that any building erected would have this sewer running through it in such a manner as to seriously interfere with the erection of a building. That seems to be clear, for while at the front of the lot the trench is some seven feet deep and the twenty-four inch sewer pipe is laid on the bottom of it at that point, as the trench' and the pipe run to the west of the lot, the pipe is brought nearer the surface; for it appears that the trench grows more shallow toward the west and the pipe is brought out at the west end of the lot but a few inches below the surface of the lot. In other words, the fill in front necessary to bring the lot up to the level of the street is much more than in the rear. It is true that damage on the basis that plaintiff is., entirely deprived of the use of this strip through his lot might be estimated, so possibly could its decrease in value by its being split through or divided by the presence of this sewer. But it can hardly be said that these damages are an adequate compensation to a man, when the whole purpose and object of his acquisition of property is to improve it by the construction of a building. That object is practically annulled. In such a case, an action for damages might be sustained for the trespass, but we cannot say that it affords an adequate remedy. The presence of this sewer invites recurrent trespass. If its presence is recognized in and through plaintiff’s property as lawful, the city authorities, almost from necessity, must have access to it to make repairs- in case of any. stoppage of the flow of water through it, or of any break in the sewer pipe.

Mr. High, supra, section 698, says that the rule of denying relief in equity has been relaxed in strong cases of irreparable injury as where the trespass will result in the destruction of the substance or chief value of the estate. In such cases the legal remedy would be entirely inadequate to afford redress and equity will restrain the trespasses, basing the relief in such eases upon the utter inadequacy of the remedy at law.

Here the act complained of, the trespass, was committed under and by authority of the city and by its officers. A serious question would surely arise, in an action against the city for damages, as. to whether the city, the principal defendant in this case, could be held liable in damages for the unlawful acts of its agents. "While it is true that the. agents of the corporation, committing an act ultra vires the corporation, that act a trespass, would he individually liable in an action at law for damages occasioned by their act, even for punitive damages, it is a question which we do not now decide hut which we hold at least doubtful, as to whether the municipal corporation itself could he held liable.

The act of the city in this case was a naked trespass, committed not only without sanction of law, but in violation both of the mandates of the Constitution and of statutory enactments. In a way the facts here are as in Commonwealth v. Pittsburg & Connellsville Railroad Co., 24 Pa. St. 159. There the defendant, a railroad corporation, was partially filling up one of the locks at the outlet of the Pennsylvania state canal at Pittsburg and casting an arch over it in such a manner as to entirely obstruct the use of it. The Commonwealth prayed for an injunction to prevent this. The defendant admitted that it was doing these acts in the construction of its road and urged as an excuse that the portion of the canal had never been of any valuable use to the state and that for many years it had lain in utter abandonment and desolation. Such, it is stated, seemed to' he the fact. Mr. Justice Lowrie, delivering the opinion of the court, commences in this vigorous language: ‘ ‘ The boldness of this act seems almost like a studied test of the vigilance of the canal commissioners, and of the efficiency of the remedies which the state has provided for the prevention of injuries. It is hoped that the equity remedy, being somewhat unusual and peremptory in its character, will not he applied to an act which does so little real injury.” Disposing of this hope by the citation of a number of cases in which, even by common law writs, the strong arm of the law has intervened between the law-breaker and the citizen, Judge Lowrie holds the acts of the character present justify the use of the exercise of the powers of a court of chancery through injunction, that being conducive to social order as furnishing an equivalent judicial remedy. It is to be noted that this decision was rendered in the year 1855, and before injunction as a preventive remedy had come into the common uses to which modern circumstances and conditions have given rise. Continuing, Judge Lowbie says: “The argument that there is no ‘irreparable damage,’ would not be so often used by wrong-doers, if they would take the trouble to observe that the word ‘irreparable’ is a very unhappily chosen one, used in expressing the rules that the injunction may issue to prevent wrongs of a repeated' and continuing character, or which occasion damages which are estimable only by conjecture and not by any accurate standard. . . . As this argument is generally presented, it seems to be supposed that injunctions can apply only to very great injuries; and it would follow that he who has not much property to be injured, cannot have this protection for the little he has. Besides this, where the right invaded is secured by statute or by contract, there is generally no question of the amount of damage, but simply of the right. He who grants a right cannot take it away, even on giving a better, without a new agreement for the purpose. . . . And when railway companies or individuals exceed their statutory powers in dealing with other people’s property, po question of damage is raised when an injunction is applied for; but simply one of the invasion of a right. . . . And railway companies will not be allowed to exercise their discretion capriciously; with the immense powers that are freely and loosely given to them, this much restraint is essential to the protection of private rights. ... If they step one inch beyond their chartered privileges to the prejudice of others or of the stockholders, or offer to do any act without the prescribed preliminary steps, they are liable to be enjoined irrespective of the amount of damage. They shall not take soil or land without payment or security: . . . and the dissent of one out of many tenants in common of land or easement will stay their hand until compensation be made. . . . Damage or no damage to others, they must obey their charter, and that was our decision in the late case of Manderson v. Commercial Bank (28 Pa. St. 379). . . . In the light of these principles the question before us is very easily decided. The matter complained of is an invasion of a public highway, and it must be enjoined against.”

. We have quoted from this case at some length because the principle it illustrates is applicable to the facts in the case at bar. It is true that that case presented one where the rights of the public were involved as against a railway corporation, itself a quasi public corporation, engaged in a public work, but the limitations upon the charters of railroads are no more ■stringent than the limitations in our state by statute upon the rights and privileges of municipal corporations. When they go outside of those rights, their acts are void and their agents committing them are trespassers. Nor are the rights of the individual less within the protection of the law than are those of the state. We feel safe,' following this decision of the Supreme Court of Pennsylvania, in holding that when this municipal corporation went beyond its charter privileges to the prejudice of plaintiff and undertook to take possession of his property without the preliminary steps prescribed by our Constitution and statutes, it and its co-defendants are liable to be enjoined from further trespass and a court of equity has power to cause them to undo what they have illegally done, irrespective of the amount of damage.

In the case referred to above, the statute of the ■state of Pennsylvania was cited on the proposition "that railway corporations shall not take soil or land without payment or security. In our state that matter is controlled, not merely by statute but by mandatory constitutional provisions. Thus our Bill of Rights, section 21, article 2, of our Constitution, in unmistakable terms forbids the taking or damaging of private property for public use without just compensation. That section further provides: “Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law and until the same shall be paid to the owner, or into -court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested W ■ Construing this section of our Constitution, and the statutes carrying it into effect, our Supreme Court has said in many cases that when this right of eminent domain is exercised, it must be exercised within and confined to the letter of the statute conferring the power. [See Thurston v. City of St. Joseph, 51 Mo. 510; Southwest Missouri Light Co. v. Scheurich, 174 Mo. 235, 73 S. W. 496; Clemens v. Connecticut Mut. Life Ins. Co., 184 Mo. 46, 82 S. W. 1.] As before said, while treating of the abatement of a nuisance, the power to abate nuisances is conferred on the municipalities of this state, but there is no implied right to exercise that power in an unlawful manner. This municipal corporation has the undoubted right to declare a nuisance and to abate it. But its act in declaring a thing a nuisance is subject to review by the courts. [Waggoner v. City of South Gorin, supra; Babcock v. City of Buffalo, supra.] It has no right, as we have seen, in the abatement of a nuisance on the property of one to enter upon the land of another and take possession of a long strip through the land of that other even for the purpose of abating a nuisance, especially when that nuisance ■is not on the lands of that other. The right of the municipality to condemn the land of this plaintiff for the construction of a sewer is undoubted, but the mode and manner of doing this and the guarantees thrown around the landowner when it is done, are provided by our statutes as well as by our Constitution. None of the forms required by statute were here observed. The rights guaranteed by the Constitution were entirely disregarded. If we are to remit this plaintiff here to his action for damages, even conceding that damage adequate to the injury could be awarded, we would, by indirection, sanction these unwarranted acts.

Learned counsel for appellants argue that the trial court erred “in refusing to call a jury to pass upon the question of the pond being a nuisance and the right of the city to abate it.” There are two propositions here. That which asserts that the right of the city to abate the alleged nuisance is a jury question, is incorrect. That is a question of law. There are two answers to the first proposition: First, this was a proceeding in equity and it is optional with the trial court to take the opinion of a jury on a question of fact; second, it is true that when the issue is nuisance or no nuisance, it is proper, in an action at law, to submit that as one of fact to the jury. But that is not the issue here, even if we concede that the pond was a nuisance. The questions here involved are, is plaintiff liable for its maintenance, and had ■defendants the right to abate it, as they undertook to do, by entering upon the land of plaintiff in the manner here done.

It is argued that the petition of plaintiff should have been dismissed and judgment awarded defendant city for the cost of laying the sewer. In the. view we take of the case it is obvious that the city cannot recover for this work. It was not only a volunteer in doing it, but a trespasser. This is not a case wherein the cost of public improvements can be assessed against the property of those benefited, nor is it one falling within the ordinances of the city, for as we hold, the work was not done in a lawful manner.

There is some evidence warranting the trial judge in finding that all the individuals, as officers of the city, assented to the acts done. "We will not disturb his finding on that.

The judgment of the circuit court granting the injunction and making it mandatory is affirmed. Inasmuch, however, as the time within which the wrong was to be undone has expired, we remand this case with directions to the court of common pleas of CapeGirardeau to re-enter its decree as heretofore' entered, but fixing the time within which the acts commanded are to be done within sixty • days from the-date. of the rendition of the amended decree. This also lodges the enforcement of the decree within the-power of that court. Costs of the cause and of the appeal are adjudged against the appellants.

Nortoni,. J., concurs, Caulfield, J., in the result.