Smith v. City of Sedalia

PERRISS, J.

The following statement of facts is taken from the opinion of the Kansas City Court of Appeals rendered in this cause at the April term, 1912:

“The cause of action alleged in the petition is the wrongful pollution of a natural watercourse which runs through plaintiff’s farm of four hundred acres, just north of Sedalia. The cause of the pollution is sewage from the city collected by defendant’s system of sewers and discharged into the stream from the mouth of the main sewer at a point about 200 yards from the south boundary of plaintiff’s farm. The length of the stream through the farm is about one mile, and the sewag*e is carried — so plaintiff contends in his petition and proof — over the entire course of the stream through the farm. The water is made unfit for the use of man or beast and the adjacent air is contaminated with noxious odors. The farm is highly improved, was devoted principally to stock raising, and, before the creation of the nuisance of which plaintiff complains, the stream afforded a bountiful supply of pure and wholesome water for the live stock pastured on the farm. At first the séwers of Sedalia were private, but in 1887 they became public, and the city extended the system from time to time. The mouth of the main sewer, built under an ordinance passed in 1887, was 4140' feet south of plaintiff’s land. In 1891 the sewer was extended 2640 feet northward, and in 1893 another extension of the city brought its terminus to a point only 600- feet from the south line of the farm. No extensions or changes have been made *117 in the main sewer since that year. The present snit was instituted in the circuit court of Pettis county in March, 1902. The petition is in two counts. In the first, plaintiff seeks to recover damages inflicted by the nuisance during the preceding five years, and the damages claimed are those resulting from the injury to the rental value of the farm during that period. The second count pleads a cause in equity, and o the prayer is that defendant ‘be enjoined from depositing sewerage from its said sewer system into the bed of Cedar Creek or elsewhere, from which the same may be carried into or upon the premises of plaintiff, and upon final hearing of the cause will adjudge the acts of the defendant wrongful in creating a nuisance and order the same abated,’ etc.

‘ ‘ The suit was taken to Moniteau county on change of venue. The cause pleaded in the first count was tried to a jury in 1905, resulting in a verdict and judgment for plaintiff for $2000. At the same term the court tried the issues tendered in the second count and decided them in favor of defendant. Plaintiff appealed from the judgment rendered on the second count, and defendant appealed from the judgment on the first count.

“In April, 1895', plaintiff commenced a suit in the circuit court of Pettis county against defendant on account of the same nuisance. He claimed damages resulting from the depreciation of the value of the 'farm and its rental value. A trial in Pettis county resulted in a verdict for defendant, but plaintiff’s motion for a new trial was sustained, and defendant appealed to the Supreme Court, where the judgment granting a new trial was affirmed. [Smith v. Sedalia, 152 Mo. 283 .] Afterward, on motion of plaintiff, the venue of the action was changed to Johnson county, and on a trial there before a jury defendant again prevailed, but, as before, the court sustained plaintiff’s motion for a new trial, and defendant appealed to the *118 Supreme Court. The judgment granting a new trial was affirmed at the April term, 1904. [Smith v. Sedalia, 182 Mo. 1 .] Since then that action has been suffered to sleep in the circuit court of Johnson county, where it is still pending, and the activities of the parties have been centered on the present action. Defendant contends in its answer and briefs that the pendency of the first suit is a bar to the prosecution of the second.”

The appeals were allowed in the first instance to this court, but later the cause was transferred to the Kansas City Court of Appeals. [ 228 Mo. 505 .] Upon a hearing in that court, the judgment was reversed and the cause remanded with directions to enter judgment for defendant on both counts. On rehearing, the judgment rendered on the original hearing was reentered. The court held the pending suit filed in 1895 a bar to this suit. One of the judges, however, deeming the decision in conflict with the decisions of this court in Smith v. Sedalia, 152 Mo. 283 , and Smith v. Sedalia, 182 Mo. 1 , the cause was certified to this court for final determination.

In addition to the above statement of facts, it may be proper to say that in the first suit filed by plaintiff in 1895, above referred to, he not only claimed damages as stated, but also, in the same count, prayed for an injunction to restrain the city from further maintaining and operating said sewer. The case, however, was tried as if it were simply a suit at law for damages, and was so construed by this court on the appeal reported in 152 Mo. 283 .

The allegations concerning the injury caused by the sewer are substantially the same in both cases, with this exception, that in the present case there is no allegation of depreciation in the value of the farm, but the allegation is confined to the use and rental value. In the first suit damages were claimed for the *119 period of time from plaintiff’s purchase up to the date of filing the- suit.

I. The first and important question is whether the former suit is a bar to this one. The answer to this depends upon whether the injury complained of in that case was permanent in character. If it was, then as this is for the continuation of the same injury, the two cases present the same cause of action, and the pendency of the first suit is a bar to this, under sections 1800 and 1804, Revised Statutes 1909, which provide that another suit pending in this State for the same cause may be pleaded in bar of a second suit.

The main sewer which discharges into Cedar Creek was completed in 1893 up to within six hundred feet of plaintiff’s land, and its effect upon the stream became manifest at that time. It was designed to serve a large sewer system. This main sewer has remained without further change. It was evidently intended to be permanent. At the time of the trial it was the outlet to a sewer system which served the larger portion of the city of Sedalia, and which cost about $100,600-. No practical way has been demonstrated for disposing of this sewage other than by the use of this watercourse, which is the natural drain for that portion of the city. Plaintiff attempted, unsuccessfully we think, to show that a septic tank would satisfactorily dispose of the sewage. It is true that since the completion of this main sewer, in 1893, additional district sewers have been incorporated into the general system, and doubtless others may be added hereafter. It is also true that as the population grows the main sewer will discharge an increased volume of contents into the creek. * This increase in use, however, is incidental to all sewers, but does not affect the question of the permanent character of the injury. If condemnation proceedings had been instituted in 1895 to acquire the use of this stream, the damages would *120 have been fixed for all time, notwithstanding the impossibility of ascertaining at that time the extent of future use that might be made of the sewer. For this reason the damages would necessarily be to some extent conjectural; but that fact would not deprive the city of the right to condemn, nor prevent the ascertainment of final damages. In 1893, therefore, the sewer was, so far as human wisdom could forecast, a permanent institution, subject only to an increase of use. Had the city then condemned, as plaintiff now claims was its duty, the watercourse would have been lawfully appropriated for such use as the wants of the city might require, but the damages would have been fixed then, as best could be done, for all time. When, therefore, plaintiff sued the city in 1895, his cause of action was complete for a permanent injury. He stated such a cause of action in April, 1895', according to our construction of his petition in that case. [152 Mo. l. c. 290, and 182 Mo. l. c. 6.] It is true the petition also alleges injury to the use and rental value, and also prays an injunction against the city; but if the injury was permanent the petition contains an allegation sufficient for a recovery on the ground of diminution in market value, which is the proper measure of damages for such permanent injury. Of the prayer for injunction we will speak later.

It-is urged that this sewer system is not permanent, because it is within the power of the city to discontinue its use. The plaintiff ought not to complain of this possibility, if Ms damages are fixed on the basis of a permanent injury. The same possibility exists in every taHng of property for public use. A railroad right of way or a street may be abandoned. We can only judge of the future by probabilities based on experience. So far as can be judged now, or could have been judged in 1895, this sewer is permanent. Nothing said by us in the former appeals is contrary to this conclusion. On the first appeal ( 152 Mo. 283 ) it was con *121 tended by the city that inasmuch as sewage from the city went into this creek prior to 18891, the date of plaintiff’s purchase of the land, the cause of action for permanent injury was completed before his purchase, and belonged to the prior owner. This claim was disallowed by the court, because it was not until after the purchase by plaintiff that the sewer was completed far enough to show the substantial nature of the injury. That decision holds, on this point, that the injury was not permanent prior to 1889. Nothing is said by us in the second appeal ( 182 Mo. 1 ) to the effect that the injury was not permanent. On the contrary, we say there that plaintiff is entitled to compensation for depreciation in the market value, if that be shown. This, of course, on the theory of permanent injury. We also say that he is to be compensated for actual loss of rents, if that be shown, and for destruction of use and occupation, if that be shown, but we did not mean that there could be a recovery for all three, nor that repeated suits could be maintained for any of the grounds of injury. The following authorities sustain our views as to the permanency of the injury and proper measure of damages: Slattery v. City, 120 Mo. 183 ; Bungenstock v. Drainage Dist., 163 Mo. 198 ; City v. Allred, 43 S. W. 62 ; City v. Hardman, 92 S. W. 930 ; Kellogg v. Kirksville, 132 Mo. App. 519 . We cite, with approval, the following from the opinion of Johnson, J., of the Kansas. City Court of Appeals, in this case:

“These authorities compel us to say that the nuisance in question is permanent, and that plaintiff,^if injured thereby, had a cause of action for his damages past and future, all of which were comprehended in and were to be measured by the depreciation in the maket value of his land caused by the presence of the sewer. For eighteen years past the sewer had remained in its present condition. It is just as substantial and enduring as a railroad embankment, drainage ditch, highway bridge, street pavement, office building or city hall. It *122 was built without any intention or expectation that it would be removed or materially changed for years to come, and if the present action was one for permanent damages and was the only suit pending between the parties, we would not hesitate in declaring that plaintiff had made out a case for the jury, and that the true rule for measuring his damages was the depreciation in the market value of the land. ’ ’

This suit is not grounded upon trespass merely, nor upon nuisance, although the injury takes the form of a nuisance, but upon the constitutional right to compensation for property damaged for public use (Webster v. Railroad, 116 Mo. l. c. 118; Turner v. Railroad, 130 Mo. App. 540 ); and it is so argued in plaintiff’s brief. The city, by proper proceedings to that end, had the right by statute to secure the use of this stream for sewer-purposes. The city did not condemn, but appropriated the use. Such action, however, does not deprive the plaintiff of his right to compensation, nor does it affect the measure of damages, which, for such use by the city, whether by condemnation or appropriation, is the diminution in market value of the land damaged. As this court said in McReynolds v. Railroad, 110 Mo. l. c. 488, “no g’ood reason, founded upon principle, can be assigned why the,same rule should not be applied in both classes of cases” (condemnation and appropriation); “the injury is the same, the damage is the same, and the compensation should be the same.”

Both suits brought by plaintiff are, substantially, actions for damages for injury to his land resulting from a wrongful appropriation by the defendant city. He concedes the right of the city to condemn, and complains because it has not done so, insisting in effect that the city shall put him in the position to claim permanent damages; but by his 1895 suit he has put himself in position to claim the same measure of damage in full compensation for the injury.

*123 II, Holding as we do that the injury is permanent, and that damages in full compensation can be awarded in the suit pending in Johnson county, such damages to be measured by the decrease in market value of the land caused by the sewer, it is obvious that plaintiff cannot have such compensation, and also maintain a suit for injunction. A recovery of damages as indicated would have the effect of confirming the right of the city to sewer into the stream as effectually as if the right had been obtained through condemnation. [Doyle v. Railroad, 113 Mo. 280 .]

' The plaintiff contends that the city should have condemned the watercourse for sewer purposes, that it should do so now, and that because it has not done so he is entitled to injunction. He did not seek to enjoin the building or extension of the sewer, although he saw the work done, and knew that its use must necessarily befoul his stream. This effect became obvious in 1891; yet he did nothing to oppose the extension of 1893:. The condition during this period appears from the following statement of the evidence made by Vauliant, J., in Smith v. Sedalia, 152 Mo. l. c. 291:

“That beginning in 18891, and continuing to 1895, the city constructed district sewers, eleven in number, emptying into the main sewer above mentioned: that until 1891, when the first extension of the main sewer in the direction of plaintiff’s farm was made, much of the offensive character of the sewage was dissipated in the open air before it reached the plaintiff’s land, although even then an examination of the water in the creek showed contamination, but that after the extension of 1891 and the second extension of 1893, with the addition of the several district sewers above mentioned, the water became entirely unfit for use and dangerous not only to the cattle, but also to the health and comfort of the tenants-of the farm; that in 1893 plaintiff made oral complaint, and in 1894 written complaint to the city officers of the same, but without *124 avail. There was also testimony for the plaintiff tending to show the depreciation of the rentals and value of the land within the periods complained of.”

Plaintiff waited until the city had completed the structure which caused the damage, waited until it had become a necessity to Sedalia, and then ashed a court of equity to restrain the use by the city until it should acquire a right by condemnation, conceding at the same time that the city had a right to condemn. Inasmuch as in such condemnation he would get in damages just what he can get by the suit now pending, it follows that he had in 1895’ a complete remedy at law.

Plaintiff appeals to the constitutional provision against taking private property for public use without compensation, and particularly to this clause: “And until the same [compensation] 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.” But the city has not disturbed the property of plaintiff, nor divested him of any proprietary rights. It has not invaded his land, but has erected a structure no nearer thereto than sis hundred feet. The damages to plaintiff are consequential. As to such damages, the Constitution does not require that they be paid in advance of the work. The city had a right, under the statute, to utilize this watercourse for sewer purposes. [Secs. 1524, 1544, R. S. 1889; Secs. 9281, 9298, R. S. 1909; Mining Co. v. Joplin, 124 Mo. 137 .] Its failure to first condemn in no way impairs plaintiff’s right to compensation. In fact, it would be difficult to measure such consequential damages before the structure from which they arise is erected and the injurious effects become manifest. The constitutional provision above referred to received full discussion in Clemens v. Ins. Co., 184 Mo. 46 . In that case, after reviewing the authorities, Gantt, J., concludes: “Where the property of the citizen is not taken, and his proprietary rights not disturbed, but *125 the damage to his property is purely consequential, he is not the entitled to have the same ascertained and paid before the proposed public work is done, and is not entitled to have the work done in pursuance of valid legislature and municipal authority enjoined until his damages are ascertained and paid, but that his remedy is one at law for damages.” Under this authoritative construction of the Constitution, but one question arises in this connection, namely, is the damage here consequential? We rule that it is.

For still another reason there can be no injunction in this case. The writ of injunction is an extraordinary remedy. It does not issue as of course, but somewhat at the discretion of the chancellor. It is his duty to consider its effect upon all parties in interest and to issue it only in case it is necessary to protect a substantial right, and even then not against great public interests. An apt discussion and application of this doctrine are contained in the opinion of Lamm, P. J., in Johnson v. Railroad, 227 Mo. l. c. 450.

Surely no chancellor would enjoin the further operation of this large and costly sewer system, with the attendant danger to public health and convenience, when it clearly appears that any injury caused to plaintiff by the sewer can be fully compensated by a pending action at law.

We approve the very able opinion written by Johnson, J., of the Kansas City Court of Appeals, in this case, and the conclusion reached therein.

The judgment below upon the first count is reversed, and affirmed upon the second count.

Kennish and Graves, JJconcur; Broiun, J., in result; Lamm, J., having been of counsel, takes no part in the case; Valliant, G. J., absent; Woodson, J., dissents.