166 Mo. App. 467 | Mo. Ct. App. | 1912
— 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,
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 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.
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 man
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
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
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
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 ap
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.”
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
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
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
. 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
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
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.