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Stewart v. City of Springfield

Supreme Court of Missouri, Court en Banc
Nov 12, 1942
350 Mo. 234 (Mo. 1942)

Summary

holding that if a contract surrenders or contracts away governmental functions, then it exceeds the scope of a governmental entity's powers, and is void

Summary of this case from Lamar Co. v. City of Columbia

Opinion

Nos. 37234, 37242.

September 8, 1942. Rehearing Denied, November 12, 1942.

1. DRAINS: Eminent Domain: Constitutional Law: Due Process Not Involved. There can be no question about due process if the City of Springfield has permanently appropriated the use of plaintiffs' creek for sewage purposes under its right of eminent domain.

2. DRAINS: Eminent Domain: Municipal Corporations: Limitations of Actions: Sewer Drain as Permanent Nuisance: When Statute Commences to Run. Assuming that the rulings in similar prior cases are applicable, the City of Springfield appropriated plaintiffs' creek for sewage purposes under its right of eminent domain so that the entire damages had to be assessed in one action, and the Statute of Limitations commenced to run from the time the injury to the land became apparent.

3. JUDGMENTS: Drains: Limitations of Actions: Estoppel: City Not Estopped to Assert Statute of Limitations. The prior suits and settlements thereof do not estop the City of Springfield from claiming in this case its permanent appropriation of the use of plaintiffs' creek for sewage purposes and asserting the defense of limitations. The landowners were not prevented from asserting their claims for the permanent damage to their lands, and they have done so.

4. MUNICIPAL CORPORATIONS: Contracts: Surrender of Legislative Powers: Ultra Vires. If certain settlements be regarded as contracts binding the city against the permanent use for sewage purposes of the creek through plaintiffs' lands, the city had no authority to make them, both under the provisions of Sec. 3349, R.S. 1939, and under the doctrine that the governing authority of a municipality is not permitted to abdicate through a contract any of its legislative powers.

5. MUNICIPAL CORPORATIONS: Drains: Location of Sewers a Legislative Function. The authority of a municipality to establish and locate sewers and to provide plans for their construction is legislative.

6. MUNICIPAL CORPORATIONS: Contracts: Estoppel: Ultra Vires Contract. The doctrine of estoppel cannot be applied to a municipality where it has no power under any circumstances to make the contract in question.

7. JUDGMENTS: Estoppel: City Not Estopped by Settlement Judgments. The city is not estopped by the judgments on the settlement agreements in the prior suits from relying on its permanent appropriation of the use of plaintiffs' creek since in the first two settlements there was an express reservation of the right to assert any defense to future suits, and the absence of such reservation in the third settlement cannot permit the judgment on such settlement to operate as an estoppel against the city. The judgment did not estop plaintiffs from future claims of permanent damages and may not estop the city from asserting its permanent appropriation, as estoppel by judgment must be mutual and bind both parties.

8. DRAINS: Eminent Domain: Municipal Corporations: Sewage Discharge Governed by Law of Eminent Domain. Under the Missouri statutes and decisions the City of Springfield had the right to acquire by eminent domain an easement to empty sewage into the creek which crosses plaintiffs' lands, and the appropriation of the use of the creek without first resorting to condemnation proceedings in no way impaired plaintiffs' right to compensation under eminent domain provisions.

9. DRAINS: Municipal Corporations: Cities of the Third Class: Effect of 1895 Sewer Act. The Act of 1895 did not repeal the sewer provisions then in effect as to cities of the third class, but merely authorized an optional and additional method for the construction of new sewer systems.

10. PLEADING: Limitations of Actions: Question of Limitation Raised in Speaking Demurrer. Since it appears from the face of the petition that the action was barred, the question of limitations is properly before the Supreme Court even though it is raised in a speaking demurrer.

11. DRAINS: Nuisances: Municipal Corporations: Municipal Sewage System a Permanent Nuisance. The rule that a nuisance is a temporary one when it can be abated by the expenditure of money and labor is inapplicable to municipal sewer systems, which have consistently been found to constitute permanent nuisances, and full damages for the permanent injury must be assessed in one action.

If a sewer system were to be constructed today, with modern and efficient equipment available for purifying the sewage, a different rule might apply.

The state may enforce remedial action where such is practical.

Appeal from Jasper Circuit Court. — Hon. Wilbur J. Owen, Judge.

AFFIRMED.

A.C. Hayward, H.T. Lincoln and Frank B. Williams for appellants; Joe N. Brown of counsel.

(1) Defendant's demurrer to plaintiffs' amended petition does not conform to the statute. It is a speaking demurrer and should be wholly disregarded except, possibly, that part of it which attempts to raise the Statute of Limitations as a bar to plaintiffs' action. (a) Our code expressly defines the purview of a demurrer as being limited to what appears on the face of the petition. The purpose of the statute is to direct the trial court's attention to the precise ground of objection relied on. Secs. 770, 771, R.S. 1929; Hanson v. Neale, 215 Mo. 256, 114 S.W. 1073; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. l.c. 117, 226 S.W. 853; Thompson v. Farmers Exchange Bank, 62 S.W.2d 803, 333 Mo. 437; St. Louis Poster Adv. Co. v. St. Louis, 195 S.W. 717. (b) Upon demurrer the petition must, under our code, be liberally construed in arriving at its meaning. The court takes as true facts well pleaded and such inferences as necessarily and logically flow therefrom. The court cannot look beyond the allegations of the petition or consider extrinsic facts or assume facts not alleged in the petition. Thompson v. Farmers Exchange Bank, 62 S.W.2d 803, 333 Mo. 437; City of Springfield v. Plummer, 89 Mo. App. 515; Aldridge v. Ryan, 260 S.W. 536; Lackawana Coal Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35. (c) Defendant's demurrer, because it pleads extraneous matters, matters de hors the petition, and matters of defense, is a speaking demurrer, not recognized in our procedure. City of Springfield v. Plummer, 89 Mo. App. 515; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., supra; Thompson v. Farmers Exchange Bank, supra. (d) It is not incumbent on plaintiffs to allege facts from which it conclusively appears that their cause of action is not barred. Maddox v. Duncan, 62 Mo. App. 474. (e) The Statute of Limitations is an affirmative defense, both at common law and under the codes; it must be raised by plea or answer, except where the statute confers title, in which case it becomes available under the general issue. Maddox v. Duncan, 62 Mo. App. 474; State ex rel. Matney v. Spencer, 79 Mo. 313. (f) The Statute of Limitations cannot be invoked by demurrer unless it distinctly appears on the face of the petition that the action is necessarily barred, as in cases in which the statute creates a bar without exception. Maddox v. Duncan, 62 Mo. App. 474. (g) If the defendant seeks by his demurrer to take advantage of the Statute of Limitations he must plead the very provision upon which he depends. Nisley v. Leathy, 256 Mo. 341; Newkirk v. City of Tipton, 136 S.W.2d 147. (h) This is not an action for the recovery of lands, tenements or hereditaments, or the possession thereof, consequently the ten-year Statute of Limitations does not apply. Sec. 850, R.S. 1929. (i) The five-year Statute of Limitations does not apply because plaintiffs' amended petition does not state facts which show that their cause of action is based upon a liability created by statute, or by the constitutional provision against taking or damaging private property without compensation. Sec. 862, R.S. 1929. (j) Plaintiffs' cause of action arose when the pollution of Wilson Creek became manifest on plaintiffs' land. Not until then was the damage resulting therefrom sustained or capable of ascertainment, and the statute did not begin to run until then. Sec. 860, R.S. 1929; Newkirk v. City of Tipton, 136 S.W.2d 147; Kent v. City of Trenton, 48 S.W.2d 571. (k) The Riggs case does not rule this case on the question of limitations because of the allegations (a) that the pollution was not manifest in the waters of the creek on plaintiffs' land until 1911; (b) that in 1912 the city agreed to abate the nuisance by septic tanks, and did so abate it for a time, in keeping with a judgment rendered in an action brought by plaintiffs; (c) that the pollution, at all times, was a temporary abatable nuisance and that successive actions were brought by plaintiffs and judgments rendered in their favor as for a temporary, abatable nuisance. Riggs v. City of Springfield, 126 S.W.2d 1144. (2) The case at bar is not ruled by Smith v. Sedalia, 244 Mo. 107; Joplin Consol. Min. Co. v. Joplin, 124 Mo. 129, or Riggs v. Springfield, 126 S.W.2d 1144. (a) Cities of the third class, in 1892, did not have, by delegation from the Legislature, the right to condemn the use of natural watercourses of drainage for public drainage or sewer purposes. Art. 4, Chap. 30, R.S. 1889. (b) Notwithstanding the provision in the act that public sewers shall be established along the principal courses of drainage, the only delegation of eminent domain in the act with respect to sewers is that the council may condemn all necessary land for sewer carriage and outfall, and may condemn private property for use, occupation or possession in the construction and repair of public and district and private sewers. Secs. 1520, 1524, 1541, R.S. 1889. (c) Eminent domain to condemn the use of natural watercourses of drainage for public drainage and sewer purposes was not made available to cities of the third class until the Legislature passed the Local Option Act of 1895. This act, for the first time, expressly delegated to cities of the third class power to accept and acquire by gift, devise, purchase or by condemnation proceedings, both within and beyond the territorial boundaries of the city, the use of natural watercourses of drainage for public drainage and sewer purposes but only upon a vote by ballot of two-thirds of the qualified voters voting at an election held for that purpose in favor of adopting the provisions of the Act. Laws 1895, sec. 1, l.c.p. 58. (d) The Local Option Act of 1895, as a prerequisite to acquiring the right to use a natural course of drainage or watercourse, or any part thereof, as a public drain for sewer route, either within or beyond the territorial boundaries of the city, required the city by ordinance to declare the same to be a public drain and sewer route, describing the part or parts thereof to be used sufficiently for identification, and provided that thereupon the city might proceed to acquire the right to use the same by gift, purchase or condemnation proceedings. Laws 1895, p. 58, sec. 3, l.c.p. 59. (e) This act expressly provides that nothing contained in it shall be construed as repealing Secs. 97, 98 and 99, Laws of 1893, l.c. pages 86-87. Secs. 1520, 1524, 1544, R.S. 1889; Laws 1895, sec. 18, l.c.p. 64. (f) Under the Local Option Act of 1895, the city could institute condemnation proceedings in the circuit court only in case it could not agree with the riparian owners upon the proper compensation to be paid for the use of the natural watercourse of drainage for public drain or sewer route, and was required to file such proceeding in the county where such natural watercourse of drainage lay by petition setting forth a general description of the same. Laws 1895, p. 58, sec. 6, l.c.p. 60. (g) If the act is silent on the subject, as here, and powers given by it can be exercised without resort to condemnation, as here, it is presumed that the Legislature intended that the necessary property should be acquired by contract. Lewis on Eminent Domain (3d Ed.), sec. 371, citing Chamberlain v. Elizabethport, 47 N.J. Eq. 43; Leeds v. Richmond, 102 Ind. 372; State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 106. (h) The maxim, expressio unius est exclusio alterius, is applicable to a statutory provision, which creates, originally, a power or right. Under this maxim such power or right exists only to the extent plainly granted. 2 Lewis' Sunderland Statutory Construction (2d Ed.), p. 916, sec. 491. (i) The right to exercise the power of eminent domain cannot be implied or inferred from vague or doubtful language, but must be given in express terms, or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist. 1 Lewis on Eminent Domain (3d Ed.), sec. 371, p. 680; Houck v. Little River Drain. Dist., 119 S.W.2d 826; State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 105; Smith v. Sedalia, 152 Mo. 302; 18 Am. Jur., sec. 26, p. 650. (j) Missouri cities can exercise only such powers as are conferred by express or implied provisions of law, since their charters are a grant and not a limitation of power and are subject to strict construction, with doubtful powers resolved against the city. Taylor v. Dimmitt, 78 S.W.2d 841. (k) Defendant city asserting that the right to exercise the power of eminent domain has been delegated to it, must be able to point out the statute which, in express terms or by clear implication, authorizes such exercise, and to the extent claimed. There must be no effort to prove its existence, else it is in doubt, and if so the State has not granted it. State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 105. (1) The cases of Smith v. Sedalia, Joplin Consolidated Min. Co. v. Joplin and Riggs v. Springfield, supra, cannot be invoked as controlling authorities in the case at bar under the rule of stare decisis because the questions and the facts that are in the case at bar were not in any of said cases. State ex rel. Dunlap v. Higbee, 43 S.W.2d 825; Long v. Long, 79 Mo. 644; Kling v. Kansas City, 61 S.W.2d 411; Miller v. St. Joseph Transfer Co., 32 S.W.2d 449; Heller v. Lutz, 254 Mo. 704; Coleman v. Hagey, 252 Mo. 102; Broadwater v. Wabash Ry., 212 Mo. 437; Sutherland's Construction of Statutes, sec. 320. (3) The City of Springfield is estopped by the stipulation and judgments in the several suits by riparian owners to deny that as a result of said suits the nuisance from the discharge of sewage into the waters of Wilson Creek is a temporary nuisance and is abatable or that it agreed to abate the nuisance. A city may be estopped by its course of conduct, especially when pursued over a period of years and where there is a reliance upon its representation and conduct on the part of the person asserting the estoppel. (a) A party is bound by his admissions in the record of former suits. Simmons v. K.C. Jockey Club, 66 S.W.2d 119, 334 Mo. 99. (b) Estoppel by record is the preclusion to deny the truth of matter set forth in a record, whether judicial or legislative, and also to deny the facts adjudicated by a court of competent jurisdiction. 12 C.J. 1063, sec. 20. (c) It is a well established rule that the records of a court of justice import absolute verity, and no one, whether or not a party to the proceeding in which it was made, may in a collateral proceeding impeach it by adducing evidence in denial of the facts of which it purports to be a memorial. So a recital in a judicial record imports absolute verity, and all parties thereto are estopped from denying its truth. An estoppel will not be predicated upon a portion of the record and of the facts, but upon the whole thereof. 21 C.J. 1063, 1064, sec. 21. (d) Two sorts of estoppel arise from the record of a judgment; first, from the record considered as a memorial or entry of the judgment, and, second, from the record considered as a judgment. As a memorial of the fact of the rendition of the judgment the record imports absolute verity and may be impeached by no one, whether or not a party to the proceeding in which it was made. As a judgment, on the other hand, the record has the further effect of precluding a re-examination into the truth of the matters decided; but in this aspect it is as a rule binding only upon the parties to the proceeding and their privies. This further and secondary effect of the record considered as a judgment is otherwise known as estoppel by judgment, the matters adjudicated being termed res judicata. 21 C.J. 1064, sec. 22. (e) A judgment pronounced by consent of parties or by stipulations should be accorded the same force as other judgments. Casler v. Chase, 160 Mo. 418; Short v. Taylor, 137 Mo. 517. (f) The doctrine of res judicata applies to municipal corporation as to any private party. The State, when a party to an action, is bound by estoppel of judgment as any private suitor. State ex inf. McKittrick, Atty. Gen., ex rel. City of Springfield v. Springfield City Water Co., 131 S.W.2d 525; Bennett v. General Accident, Fire Life Assur. Corp., 255 S.W. 1076, 213 Mo. App. 421; State ex rel. Cranfill v. Smith, 48 S.W.2d 891; 34 C.J. 1039; Williams v. City of Hayti, 184 S.W. 470; Kansas City Exposition v. Kansas City, 174 Mo. 425; State ex rel. Blair v. Center Creek Mining Co., 171 S.W. 356. (g) The compromise of a pending suit by an attorney having apparent authority will be binding upon his client. Black v. Rogers, 75 Mo. 441. (4) The appropriation by defendant of the waters of Wilson Creek flowing on plaintiffs' land for its sewage disposal, thereby polluting said waters, was a violation of the due process of law provisions of State and Federal Constitutions. (a) Any act of defendant which deprives the plaintiff of one of the essential attributes of his right as riparian owner, or imposes conditions on such rights, is in violation of constitutional guaranties which provide that no person shall be deprived of life, liberty or property without due process of law. Art. 2, Secs. 21, 30, Const. of Mo.; Arts. 5, 14, Const. of U.S.; 6 R.C.L., sec. 193, p. 196; Myers v. St. Louis, 8 Mo. App. 266; Meyers v. St. Louis, 82 Mo. 367. (b) Anything which destroys or subverts the right of any person to freely enjoy his property, real or personal, constitutes a taking or destruction of it, pro tanto, notwithstanding the possession thereof is not disturbed and there is no actual or physical invasion of the locus in quo. Prairie Pipe Line Co. v. Shipp, 267 S.W. 647. (5) The turning of unpurified sewage into Wilson Creek was not necessarily a permanent nuisance. It was a temporary nuisance abatable by scientific treatment of the sewage by septic tanks, purification works, disposal plants and settling basins; that is, it was abatable by the expenditure of money and labor. (a) Courts take judicial notice of the fact that modern science has advanced to the point where sewage is capable of purification and can be easily and successfully purified by the use of modern appliances. Oklahoma City v. West, 155 Okla. 63, 7 P.2d 888; Bennett v. City of Marion, 119 Iowa 473, 93 N.W. 558; Platte Bros. Co. v. City of Waterberry, 72 Conn. 531, 45 A. 154, 48 L.R.A. 691; Vogt v. City of Grennell, 98 N.W. 782. (b) The Supreme Court of Missouri recognizes the application of the doctrine of judicial notice in cases of this kind. Riggs v. Springfield, 126 S.W.2d 1144. (c) There is no necessity for a constitutional provision requiring the payment of damages for taking or damaging private property, unless the taking or damaging is authorized. Oklahoma City v. West, 7 P.2d l.c. 891. (d) The damages are recoverable for what was, and what still is a common tort, a nuisance. Oklahoma City v. West, 7 P.2d l.c. 891. (e) The nuisance being abatable and being unauthorized, there was no necessity for its commission. This is the real ground of liability in this case under the facts pleaded. Oklahoma City v. West, 7 P.2d l.c. 891. (f) Under the facts pleaded there should be no express or implied authority to commit the wrong upon the payment of damages. Oklahoma City v. West, 7 P.2d l.c. 892. (g) If the Legislature expressly authorizes an act which must inevitably result in injury, what would otherwise be a nuisance may be said to be legalized, but if such result follows from the manner of construction or operation, the legislative license is no defense. Oklahoma City v. West, 7 P.2d l.c. 892; Wood on Nuisance 853-861; Village of Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 6 L.R.A. 763. (h) The holding that a nuisance created by discharging the contents of an outfall sewer into a watercourse is not abatable by scientific methods of sewage treatment simply because the sewer is permanent, and presumably the use of the stream will continue for all time, is opposed to the practically unanimous weight of judicial thought in other jurisdictions. City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 53 Sup. Ct. 602, 77 L.Ed. 1208; Birmingham v. Land, 34 So. 613; Jones v. Sewer Improv. Dist., 177 S.W. 888; Platte Bros. Co. v. Waterbury, 67 A. 508; Kewanee v. Otley, 68 N.E. 388; Peck v. Michigan City, 49 N.E. 800; Valpariso v. Moffit, 39 N.E. 909; Bennett v. Marion, 93 N.W. 558; McDaniel v. Cherryvale, 136 P. 899; Princeton v. Pool, 188 S.W. 758, 191 S.W. 865; Doremus v. Patterson, 69 A. 225, 90 A. 1135; Moser v. Benlington, 78 S.E. 74; Oklahoma City v. West, 7 P.2d 888; Blizzard v. Danville, 34 A. 846; Conestee Mills v. Greenville, 158 S.E. 113; Graham v. Mosely, 254 S.W. 130; Eckery v. City of Belleville, 13 N.E.2d 641, 295 Ill. App. 144.

Paul W. Barrett and Jack S. Curtis, City Attorneys, John S. Farrington, Sam M. Wear and W.D. Tatlow for respondent.

(1) The Riggs case controls this action. (2) The court will not review the Riggs case as a division cannot overrule a decision of the court en banc. State ex rel. Woodmaster v. Riggs, 343 Mo. 20. (3) The appellants' case should sound in contract and not in tort. Riggs v. Springfield, 344 Mo. 420; Yearsley v. W.A. Ross, 309 U.S. 18, 84 L.Ed. 554; Danforth v. United States, 308 U.S. 271. Article 2, Section 21 of the Missouri Constitution does not require the payment of compensation in advance where the land is not taken but the damages are only consequential. This is directly held in the Riggs case (344 Mo. l.c. 435). (4) If the appellants can maintain this action for a temporary nuisance based upon a tort instead of an implied contract to compensate them for the appropriation of the creek for sewer purposes, such right must be based solely on the stipulations and judgments rendered in the prior cases. (5) No contractual obligation. (a) That this stipulation does not create nor purport to create a contract right in favor of the appellants has been directly decided by the Kansas City Court of Appeals in a recent case: Kansas City to the use of Delargy v. Wells Bros. Construction Co., 54 S.W.2d 449. (b) The previous settlements were made upon the erroneous assumption by both the city and the appellants that the city was liable for establishing and maintaining a temporary nuisance. Nordyke Marmon Co. v. Kohlor, 155 Mo. 643. (c) Even if the stipulation, in plain and unambiguous terms, had undertaken to create such a contract right in favor of the appellants it would have been clearly and utterly void under the plain provisions of the Missouri statute: Sec. 2962, R.S. 1929; Mullins v. Kansas City, 268 Mo. 444, 188 S.W. 193. Under the first provision of the statute supra the contract must "be within the scope of its powers or be expressly authorized by law." It was neither within the scope of its powers nor expressly authorized by law for the city to give away a valuable property right or a valuable easement absolutely essential and necessary to its continued existence. Morrow v. Surber, 97 Mo. 155; Lamar Township v. City of Lamar, 261 Mo. 171, 109 S.W. 12; Mullins v. Kansas City, 268 Mo. 444, 188 S.W. 193; Lane, etc., v. Buchanan County, 85 F. 349. (6) The prior stipulations and judgments are not res adjudicata that the city has not acquired the lawful right to empty its sewage into the creek. (a) No such issue was involved in those cases. Hence, the fact that the city might have defeated those suits by asserting such right does not make the judgments res adjudicata. The instant suits are not the same as those suits. They cover an entirely different period of time and the city did not tender the issue that it had acquired the lawful right to empty its sewage into the creek. Kansas City Exposition Driving Park v. Kansas City, 174 Mo. 425, 74 S.W. 979; New Orleans v. Citizens' Bank, 167 U.S. 371, 42 L.Ed. 211, 17 S.Ct. 905; St. Louis Dairy Co. v. Northwestern Bottle Co., 204 S.W. 281; U.S. Fidelity Guaranty Co. v. McCarthy, 33 F.2d 7; New York Life Ins. Co. v. Stoner, 92 F.2d 845. (b) It is an elementary rule of law that if a judgment is not res adjudicata to both parties thereto it is not res adjudicata to either. Bell v. Hoagland, 15 Mo. 360; St. Louis v. Cravens, 69 Mo. 72; Bennett v. General Accident Fire Life Assur. Co., 213 Mo. App. 421, 255 S.W. 1076; 34 C.J., Judgments, sec. 1407-3, p. 988. (c) The prior suits and the instant suits being entirely different suits, the fact that the city might have defeated those suits by interposing the defense that it had acquired the lawful right to pollute the creek does not prevent it from now doing so, as no such issue was decided in those cases. See cases supra this paragraph (a). (d) The rule is well settled in this State that where the causes of action are different, even where the parties are the same, it is only conclusive of the matters which were in fact litigated therein and is not conclusive of any fact which might have been litigated therein. Scheer v. Trust Co. of St. Louis County, 330 Mo. 149, 49 S.W.2d 135; Mo. Dist. Telegraph Co. v. Southwestern Bell Tel. Co., 336 Mo. 453, 79 S.W. 257; Kelley v. Cape Girardeau, 277 Mo. App. 730, 60 S.W.2d 84; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; New Orleans v. Citizens' Bank, 167 U.S. 371, 42 L.Ed. 211; Nevins v. Coleman, 198 Mo. App. 252, 200 S.W. 445; American Paper Products Co. v. Aetna Life Ins. Co., 204 Mo. App. 527, 233 S.W. 820; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; St. Louis Dairy Co. v. Northwestern Bottle Co., 204 S.W. 281; Bennett v. Brotherhood, etc., 106 S.W.2d 25; Stoner v. New York Life Ins. Co., 114 S.W. 167; Barkhoefer v. Barkhoefer, 90 Mo. App. 173, 67 S.W. 675. (e) "It is elementary that the concurrence of four well-defined identities is necessary to the successful interposition of this plea (res adjudicata). They are: Identity of the thing sued for; identity of the cause of action; identity of the persons and parties to the action; and identity as to the quality of the persons for or against whom the claim is preferred." Missouri, K. T. Ry. Co. v. American Surety Co., 236 S.W. 657. (7) No equitable estoppel. (a) This is an action at law and not in equity, and, as such, it has nothing whatever to do with the doctrine of equitable estoppel. State ex rel. v. Smith, 135 S.W.2d 355. (b) In order for the appellants to successfully invoke the doctrine, even in a court of equity, they must have been "lured to his (their) hurt." (c) "Where parties have equal means of knowledge, there is no estoppel in favor of either. . . . Mere silence of itself will not raise an estoppel. `To make the silence of a party operate as an estoppel, the circumstances must have been such as to render it his duty to speak and it is essential that he should have had knowledge of the facts . . .'" Wilkerson v. Lieberman, 327 Mo. 420, 37 S.W.2d 533. (d) Ordinarily, lapse of time alone does not constitute laches, but some change in the circumstances, rendering it inequitable to grant relief, is essential. Wauer v. Bank of Pendleton, 228 Mo. App. 1150, 65 S.W.2d 167; Mullins v. Kansas City, 268 Mo. 244, 188 S.W. 193; State ex inf. Shartel, etc., v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394; Brown v. Brown, 146 S.W.2d 553; State ex rel. City of Springfield v. Springfield City Water Co., 345 Mo. 6, 131 S.W.2d 525. (8) It is an elementary rule, well established in this State and elsewhere, that a party must both plead and prove a cause of action in his own favor and it does him no good to allege and prove that someone else has a cause of action. State ex rel. v. Brand, 305 Mo. 321, 265 S.W. 989; Maguire v. Hall, Administrator, 27 Mo. 146; State v. Dodson, 63 Mo. 451; Garner v. McCullough, 48 Mo. 318; Belt v. St. Louis R. Co., 190 S.W. 1002; Grunder v. Frank, 267 Mo. 713, 187 S.W. 104; 49 C.J., Pleadings, sec. 140; 4th Dec. Digest, Actions, Key 13. (9) While it is true that a party can sue upon a contract made by a third person for his use, the rule is not extended to give a third person who is only indirectly and incidentally benefited by a contract, the right to sue thereon. Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S.W. 784; Metz v. Cape Girardeau Water Co., 202 Mo. 324, 100 S.W. 651; St. Louis v. Wright Construction Co., 202 Mo. 451; Forgey v. Macon Tel. Co., 291 Mo. 539, 237 S.W. 792; Kansas City v. O'Connell, 99 Mo. 357, 12 S.W. 791; Kansas City Sewer Pipe Co. v. Thompson, 120 Mo. 218; Gerber v. Kansas City, 304 Mo. 157; Kansas City v. Roberson, 322 Mo. 1061, 17 S.W.2d 977.


Plaintiffs are riparian owners of land on Wilson Creek, near Springfield, Missouri. They filed separate actions for damages to their respective lands arising from the pollution of the creek caused by the discharge of the effluent of the Springfield sewer system into the creek. Stewart and wife sued for $10,000.00, and Chappell and wife for $25,000.00.

Demurrers to both petitions, which are substantially the same, were sustained and appeals taken to this court. Here the cases were consolidated by agreement of the parties. They are companion cases to Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, decided by this court in 1939. Since we have reached the conclusion that both are governed [628] by the decision in that case, our discussion will be limited to the Stewart appeal.

The petition is lengthy. It covers more than forty printed pages. It shows that Springfield, then a city of the third class, under an ordinance enacted in 1892, constructed a sewer system which discharged the city's sewage into the creek. In the beginning the sewage was not of sufficient quantity to pollute the waters of the creek where they flowed by appellants' land, but as the city grew in size and the sewage increased the pollution extended to appellants' land.

In 1911 appellants and other riparian owners filed suits against the city for damages. The petitions in these suits were in two counts. One was for temporary damages accruing between 1906 and 1911 on the theory that the city had created an abatable nuisance. The other count was for the permanent injury to appellants' land on the ground the city had appropriated the use of the creek because the sewer system was permanent, and was intended to discharge sewage into the creek throughout all time causing a permanent depreciation in the value of their land. These cases were settled. The city paid $4,700.00 on the claims for temporary damages and the claims for permanent damages were dismissed without prejudice. In the settlement the landowners agreed not to bring future suits for temporary damages until the city had an opportunity to install septic tanks, but expressly reserved their rights to bring such suits "they may deem they have against the City of Springfield for the permanent injury and depreciation to their real estate should said nuisance not be abated, and this agreement shall in nowise prejudice or affect their said cause of action, and shall in nowise prejudice or affect any defense that the city may have thereto."

The sum of $100,000.00 was voted by the city and the septic tanks were built and put into operation.

In 1925 appellants and others again brought suits alleging the same claims for temporary and permanent damages. Settlement was made on the same basis as before, this time for an aggregate payment of $17,500.00.

The sum of $325,000.00 was voted and sewage disposal plants were built.

Then in 1932 appellants and others once more filed similar suits, this time settled for $25,000.00.

In 1935 and 1936 the instant suits were filed. Appellants again are claiming temporary damages for the preceding five years on the theory the city is maintaining an abatable nuisance.

The chief question before us is whether appellants may recover on their present claim for temporary damages, or are they precluded because the city has long since appropriated the use of the creek under its right of eminent domain and the statute of limitations has run against every claim appellants might have.

There can be no question about due process if the city has permanently appropriated the use of the creek under its right of eminent domain. Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18.

In the Riggs case we held the city had done so under its right of eminent domain so that Riggs' entire damage had to be assessed in one action, and the statute of limitations commenced to run from the time the injury to Riggs' land became apparent. We followed the case of Smith v. Sedalia, 244 Mo. 107, 147 S.W. 597. We quoted with approval from that case as follows: "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 market value of the land caused by the presence of the sewer." If the ruling in the Riggs case is applicable here the judgment of the trial court sustaining the demurrer and dismissing the petition must be affirmed.

Aside from the parties and the lands it is conceded that the petition in the present case is the same as the one in the Riggs case, except for the paragraphs alleging the three previous suits. By the stipulations for settlement and judgments on the stipulations in these suits, appellants claim the city is bound to the theory that its use of the creek is a temporary nuisance which the city could abate, and until abated the city must again respond with damages as it did on the three previous occasions. In other words, they assert the city by its course of action in the [629] three previous suits is now prevented from claiming in this case its permanent appropriation of the use of the creek and asserting the defense of limitations. We do not find that the city is so bound.

As to the first and second suits our finding needs no discussion. In the settlements of both suits the city expressly reserved the right to raise any defense it might have in any future action. In the second case the city even pleaded the statute of limitations in its answer. In both cases appellants recognized that the city might have permanently appropriated the use of the creek by asserting a claim for permanent damages.

Turning to the allegations about the third suit we find practically the same facts in the settlement, except there was no express reservation as there was in the two previous settlements that the city could assert any defense it might have in any future suit. The petition again claimed damages both for temporary and permanent injuries. The settlement was again made only for temporary injuries. The claim for permanent injuries was again dismissed. The settlement contained a provision that appellants could make claims in the future. It can't be said that the absence of an express provision reserving to the city the right to defend itself against such claims will prevent it from doing so. Nor do we find the city is restricted in the nature of its defense.

In all the settlements the parties agreed that their effect should not be construed as a condemnation of appellants' land or as giving the city any permanent or future rights to empty its sewage into the creek so as to pollute the water. It is plain this construction must have been made under a misapprehension as the city had years before appropriated the permanent use of the creek. There is no claim of any misrepresentation by the city. The record shows the landowners were not prevented in any way from asserting their claims for the permanent damage to their lands but that in each instance they did so.

[4, 5] These settlements cannot be looked upon as a contract in favor of appellants and binding the city against the permanent use of the creek, because the city has no authority to make such a contract. Section 3349, R.S. 1939, provides that a city shall not make any contract unless the same shall be within the scope of its powers or be expressly authorized by law. Regardless of the statute but on a broader doctrine such a contract is invalid and could not bind the city. The law is well settled that a municipal corporation can not surrender or contract away its governmental functions and powers. 43 C.J., Municipal Corporations, sec. 213. "The governing authority of a municipality is not permitted to abdicate through a contract any of its legislative powers and thereby preclude itself from meeting in a proper way the emergencies that may arise. 6 R.C.L. 744. `Those powers are conferred in order to be exercised again and again, as may be found needful or politic, and those who hold them in trust today are vested with no discretion to circumscribe their limits or diminish their efficiency, but must transmit them unimpaired to their successors.'" Thus, this court held a municipality has no power to hamper the free exercise of its legislative discretion. Thompson v. City of St. Louis (Mo.), 253 S.W. 969. The authority to establish and locate sewers and to provide plans for their construction is legislative. Neill v. Gates, 152 Mo. 585, 54 S.W. 460; Whitworth v. Webb City, 204 Mo. 579, 103 S.W. 86.

Furthermore, the doctrine of estoppel cannot be applied to a municipality where it has no power under any circumstance to make the contract in question. Fleshner v. Kansas City, 348 Mo. 978, 156 S.W.2d 706. The case of State ex inf. McKittrick v. Springfield Water Co., 345 Mo. 6, 131 S.W.2d 525, on which appellants rely, is not relevant. That case held that the City of Springfield was estopped from claiming a water company's franchise had long since expired because by the passage of numerous ordinances and other acts it had recognized the franchise as continuing in effect. But in that case the city was empowered to grant the franchise.

Nor can the judgments on the settlement agreements operate to estop the city from now relying on its permanent appropriation of the use of the creek. As we have already shown the first two settlements expressly saved to the city any defense it would care to assert in any future action against it. In the third settlement there was no such provision. Still its absence cannot permit the judgment on such settlement to operate as an estoppel against the city's raising such defense. Such issue was not considered by the trial court because the court based upon permanent [630] damages was dismissed. Furthermore, the right of appellants to bring future actions was expressly reserved. Therefore, since the judgment on such settlement could not estop appellants from future claims of permanent damages, it did not estop the city from asserting its permanent appropriation. Estoppel by judgment must be mutual and bind both parties. If the judgment is not binding on both it binds neither. Bennett v. General Accident F. L.A. Co., 213 Mo. App. 421, 255 S.W. 1076 and cases cited.

Appellants point out another difference in this case from the Riggs case. In the case at bar the right of the city to acquire by eminent domain an easement to empty sewage in the creek is expressly made an issue which was not done in the Riggs case. While it is true in the Riggs case the parties agreed the law of eminent domain applied and the law of nuisance was not involved, yet, despite such agreement, we considered the matter and found affirmatively that the law of eminent domain was applicable, although elsewhere the authorities on the question are conflicting. We said: "Under Sections 1524 and 1541-1544, Revised Statutes Missouri 1889, the City of Springfield had the right to condemn private property for use for sewer purposes in the same manner as other property might be condemned for public purposes. These statutes also provided that in setting up its system of sewers, public sewers should be established along the principal courses of drainage and that district sewers might be connected with such natural courses of drainage. We said, in Joplin Consolidated Mining Co. v. City of Joplin, 124 Mo. 129, 27 S.W. 406, that it was the clear implication of the language of these statutes that the principal courses of drainage may be used for sewer purposes. In that case we held that the City of Joplin had the right and power to construct the public sewer in question so that it would discharge its contents into Joplin Creek." In the Riggs case we also relied on the case of Smith v. Sedalia, 244 Mo. 107, 149 S.W. 597, supra, where this court held that the City of Sedalia had the right, by statute, to secure the use of a stream for sewer purposes. In the Smith case, as in the case at bar, the city did not first resort to condemnation proceedings but appropriated the use of the stream. This court refused to enjoin such use of the stream because the City of Sedalia had failed to institute proceedings to condemn the watercourse for sewer purposes. The court said: "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 became manifest."

We find it a common rule that "the discharge of sewage upon the property of an individual, or its discharge into a stream, so as to pollute the water and lessen or destroy the value of the stream itself, or of private property situated thereon, is generally considered compensable under eminent domain provisions." 29 C.J.S., Eminent Domain, sec. 118.

Consequently, the fact the parties in the Riggs and Smith cases conceded that the law of eminent domain governed those cases does not make them inapplicable here in view of the affirmative findings by the court that such law was controlling. Both involved the same statutory powers of cities of the third class.

In the face of these decisions appellants argue that cities of the third class did not have the power, under the statutes, to condemn or appropriate the use of natural watercourses for public drainage and sewer purposes in 1892 when the ordinance for the sewer system was enacted. They claim that such authority was not conferred on cities of this class until the adoption of the Act of 1895. Laws 1895, p. 58. This act did not repeal the sewer provisions then in effect, which were practically the same as those in the Statutes of 1889 under which the city enacted its ordinance. It merely authorized an optional and additional method for the construction of new sewer systems. The act stated in Section 18: "Nothing contained in this act shall be construed as repealing sections 97, 98 and 99, of an act entitled `Cities of the third class,' being `An act to repeal article 4, of chapter 30, of the Revised Statutes of Missouri of 1889, with all amendments thereto," approved April 18, 1893, which said sections 97, 98 and 99 shall continue to apply to all cities of the third class which fail to adopt the provisions of this act under the provisions of section 1 of the same." Sections 97, 98 and 99 provide for construing sewer systems and grant the power of eminent domain. Laws 1893, p. [631] 65. In such wise the Act of 1895 recognized an existing pattern of sewer laws and merely provided an additional one.

Appellants say we cannot consider the city's defense that the statute of limitations has run because it is raised in a speaking demurrer along with other defenses. The other defenses do raise questions of fact which require evidence to support them. Our present practice does not permit a speaking demurrer. However, we recently held that if from the face of the petition it appeared the action was barred, such fact could be considered even if raised in a demurrer which otherwise embodied the characteristics of a speaking demurrer. Halloran v. Hackmann (Mo.), 160 S.W.2d 769.

The allegation that the city in 1892, by ordinance, constructed the sewer, connected it with Wilson Creek and discharged its sewage into the creek is sufficient pleading to show the appropriation by the city. MacMurray-Judge Arch'l. Iron Co. v. St. Louis, 138 Mo. 608, 39 S.W. 467.

The petition further shows on its face that the injury to appellants' land was apparent in 1906 by the allegation of the claim for damages from 1906 to 1911.

Under these circumstances the question of limitations is properly before us even though it is raised in a speaking demurrer.

Appellants stress the case of Oklahoma City v. West, 155 Okla. 63, 7 P.2d 888, which involved the same issues we have here. The Oklahoma Supreme Court, following a number of Oklahoma decisions, held that the emptying of unpurified sewage in the river constituted a temporary rather than a permanent nuisance. The decision was based on the theory the nuisance was a temporary one as it could be abated by the expenditure of money and labor. In this state we follow the same general rule a temporary nuisance, as distinguished from a permanent one, is one which can be abated. Shelley v. Ozark Pipe Line Corp., 327 Mo. 238, 37 S.W.2d 518, 75 A.L.R. 1316. But by a consistent line of decisions in this state this rule has been held inapplicable to municipal sewer systems. Such sewer systems have consistently been found to constitute permanent nuisances. Therefore, full damages for the permanent injury must be assessed in one action. Shelley v. Ozark Pipe Line Corp., supra; Smith v. Sedalia, 182 Mo. 1, 81 S.W. 165; same v. same, 244 Mo. 107, 149 S.W. 597; Kellogg v. City of Kirksville, 149 Mo. App. 1, 129 S.W. 57; Luckey v. City of Brookfield, 167 Mo. App. 161, 151 S.W. 201; Kent v. City of Trenton (Mo. App.), 48 S.W.2d 571; McCleery v. City of Marshall (Mo. App.), 65 S.W.2d 1042; Person v. City of Independence (Mo. App.), 114 S.W.2d 175; King v. City of Rolla (Mo. App.), 130 S.W.2d 697, and Riggs v. City of Springfield, supra.

In the Riggs case we found it was not until many years after this sewer system was connected with the creek that devices for sewage purification and disposal came into common use. We held that the city should not be penalized because it alleviated the pollution of the creek by installing modern devices after it had already acquired a permanent right by appropriation to empty raw, untreated sewage into the stream. If a sewer system were to be constructed today, with modern and efficient equipment available for purifying the sewage, a different rule might probably apply. cf. City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334. But such is not this case.

We also said in the Riggs case and reassert here that under no circumstances is the city privileged to create or maintain a public nuisance in the exercise of its use of the easement. The state may enforce remedial action where such is practical.

Our decision in the Riggs case is applicable and controlling here. Appellants' claims in both cases are barred by the Statute of Limitations. The court below properly sustained the demurrers and entered judgments dismissing appellants' petitions.

The judgments are affirmed. All concur except Gantt, J., absent.


Summaries of

Stewart v. City of Springfield

Supreme Court of Missouri, Court en Banc
Nov 12, 1942
350 Mo. 234 (Mo. 1942)

holding that if a contract surrenders or contracts away governmental functions, then it exceeds the scope of a governmental entity's powers, and is void

Summary of this case from Lamar Co. v. City of Columbia

addressing predecessor to section 432.070, R.S.A. section 3349

Summary of this case from Lamar Co. v. City of Columbia

In Stewart v. Springfield, 350 Mo. 234, 165 S.W.2d 626, the plaintiffs there also sued for damages to their lands because of pollution of a creek by a discharge of the effluent from the municipal sewer of defendant.

Summary of this case from Webb v. Union Electric Co. of Missouri

In Stewart v. Springfield, 350 Mo. 234, 165 S.W.2d 626, the plaintiffs there also sued for damages to their lands because of pollution of a creek by a discharge of the effluent from the municipal sewer of defendant.

Summary of this case from Webb v. Union Electric Co.
Case details for

Stewart v. City of Springfield

Case Details

Full title:J.T. STEWART and JOSIE STEWART, Appellants, v. CITY OF SPRINGFIELD…

Court:Supreme Court of Missouri, Court en Banc

Date published: Nov 12, 1942

Citations

350 Mo. 234 (Mo. 1942)
165 S.W.2d 626

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