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(— Mo. -, 284 8. W. 471.)

CITY OF CAPE GIRARDEAU, Respt.,

V.

HERMINIA HUNZE et al., Appts.

Missouri Supreme Court (Division No. 1) - May 24, 1926.

(— Mo.

284 S. W. 471.)

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Eminent domain, § 205 use of stream for sewer outlet compensation. 1. A municipal corporation which, by using a natural stream for a sewer outlet, does not cause its waters to be polluted beyond the extent of their pollution from the natural wash and drainage coming from the city and upper proprietors beyond the sewer outlet, or to be rendered more unfit for use than such waters were prior to the construction of the sewer, is not liable for compensation or damages.

[See annotation on this question beginning on page 43.]

Appeal, § 913 refusal to excuse ju

ror error.

2. Refusal to excuse a juror in a proceeding to condemn land for a sewer outlet, because he was a taxpayer in the sewer district, is not reversible error where the statute provides that in all actions brought against any county or city its inhabitants may be jurors if otherwise competent and qualified and nothing appears to show partiality or bias on the part of the person challenged.

Appeal, 793 permitting jury to
§
know official character of witness.

3. Permitting the fact that a witness to the value of property injured by the construction of a sewer in a proceeding for the assessment of damages was one of the commissioners appointed to assess the damages to go to the jury is not reversible error; at least where the jury were not influenced by his testimony.

Evidence, § 1262 — duty of contractor to replace soil.

4. In a proceeding to condemn an easement across real estate for a sewer, where merely the right to disturb the surface during the construction period and to use it for maintenance purposes is sought, evidence is admissible that the contractor is under bond to replace the soil in the same condition in which he found it. Evidence,

1262-conditions along stream sought for sewer outlet. 5. In a proceeding to condemn a right of way for a sewer and the right to use a stream for the sewer outlet, evidence is admissible of the conditions along the stream prior to the filing of the commissioner's report,

where it is also shown that the same conditions continued at the time of trial.

Evidence, § 1262-existing condition

of stream sought for sewer outlet. 6. In a proceeding to condemn the right to use a stream for sewer purposes, evidence is admissible of existing conditions of pollution, to enable the jury to determine what, if any, additional contamination will result from the sewer.

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14. A municipal corporation located upon the banks of a stream may be regarded as having a dominant estate for drainage purposes over lower riparian owners.

[See 27 R. C. L. 1077.]

Trial, § 336 instructions on burden of proof absence of conflict.

15. Instructions in an eminent domain proceeding, that the burden is on the property owner to prove by a preponderance of the evidence that his land will be damaged in excess of special benefits, and that the burden is on petitioner to show by the preponderance or greater weight of evidence that special or peculiar benefits, if any, will accrue to the remainder of the owner's property, are not contradictory or conflicting.

Appeal, § 594 - interference with allowance of costs.

16. Under a statute providing that the costs in an eminent domain proceeding shall be paid by petitioner up to the filing of the report of the commissioners, and that the court may make such order as to subsequent costs as it may deem just, the appellate court will not interfere with the discretion of the trial court unless there is an abuse of discretion.

APPEAL by defendants from a judgment of the Cape Girardeau Court of Common Pleas (Knehans, J.) granting insufficient relief in a suit brought to condemn an easement for a sewer and to acquire the use of a stream as a sewer outlet. Affirmed.

The facts are stated in the Commissioner's opinion. Messrs. Spradling & Dalton for appellants.

Messrs. James A. Finch, James A. Barks, and Rush Limbaugh, for respondent:

Defendants cannot complain because the court gave instructions at the request of the condemnor, directing the jury as to the elements they should consider in determining just compensation.

Cape Girardeau & C. R. Co. V. Blechle, 234 Mo. 471, 137 S. W. 974, Ann. Cas. 1912D, 246; St. Louis, Iron M. & S. R. Co. v. Pfau, 212 Mo. 398, 111 S. W. 10; Kansas City & N. Connecting R. Co. v. Shoemaker, 160 Mo. 425, 61 S. W. 205.

If all of the instructions given in the case, when taken together, correctly declare the law of the case, the fact that any one of the instructions, taken alone, may be incomplete or erroneous, does not constitute error.

Prentiss v. Illinois L. Ins. Co. Mo. —, 225 S. W. 695; Hulse v. St. Joseph R. Co. Mo., 214 S. W. 150; Cassin v. Lusk, 277 Mo. 669, 210 S. W. 902; Chicago G. W. R. Co. v. Kemper, 256 Mo. 279, 166 S. W. 291, Ann. Cas. 1915D, 815.

Plaintiff acquired the right to a temporary use of a strip of appellants' land, and a limited right to use said strip of land thereafter, which uses were defined with particularity in the

(Mo., 284 S. W. 471.)

petition and the evidence, and instruction No. 2 correctly directed the jury as to what they should consider in determining just compensation for the taking of such rights.

20 C. J. 740; St. Louis v. Brown, 155 Mo. 545, 56 S. W. 298; Chicago, S. F. & C. R. Co. v. McGrew, 104 Mo. 282, 15 S. W. 931.

The rights which plaintiff acquired in Cape La Croix creek were rights to use an agency already impressed with a public use, and defendants were not entitled to the same measure of damages for such appropriation, although, under all the instructions, they got the benefit of such measure of damages.

St. Louis v. Clegg, 289 Mo. 321, 17 A.L.R. 1242, 233 S. W. 1; McKee v. St. Louis, 17 Mo. 191; Bartlett v. Bangor, 67 Me. 460; Valparaiso v. Hagen, 153 Ind. 337, 48 L.R.A. 707, 74 Am. St. Rep. 305, 54 N. E. 1062.

Both on reason and authority, the rule applied for measuring damages for the taking of property absolutely under the control of the owner cannot be applied when the property or agency sought to be used is not the absolute property of the individual, but is impressed with a public use.

St. Louis v. Clegg; McKee v. St. Louis; and Valparaiso v. Hagen,-su

pra.

Cape La Croix creek was impressed with a public use, because the proprietor of land through which a stream flows cannot insist that the water shall come to him in its natural, pure state, but must submit, and that too without compensation, to the reasonable use of such stream by the upper proprietors, and he must submit to the natural wash and drainage coming from towns and cities.

Joplin Consol. Min. Co. v. Joplin, 124 Mo. 135, 27 S. W. 406; Valparaiso v. Hagen, supra.

When all the instructions are read together, as the jury is presumed to have done, there can be no doubt but that defendants had every element of injury considered by the jury.

Farmer v. St. Louis, I. M. & S. R. Co. 178 Mo. App. 579, 161 S. W. 327; Jackson v. Western U. Teleg. Co. 174 Mo. App. 70, 156 S. W. 801; Logan v. Metropolitan Street R. Co. 183 Mo. 582, 82 S. W. 126.

The court gave defendants' instruction that the burden of proof as to special benefits was on respondent, and since the jury, by its verdict,

found there were no special benefits to defendants' land, it is immaterial who had the burden of proof, and, if plaintiff's instruction No. 4 was roneous, it was harmless.

er

Egan v. United R. Co. Mo. App. —, 227 S. W. 126; Eckel v. Gruebel, Mo. App. 226 S. W. 983; United States Fashion & Sample Book Co. v. Montrose Cloak & Suit Co. Mo. 218 S. W. 867; Mathewson v. LarsonMyers Co. Mo. App. 217 S. W. 609; Sutton v. Libby, Mo. App. 201 S. W. 615; Morris v. Donovan, 159 Mo. App. 401, 141 S. W. 428; Shanholtzer v. Brubaker, 159 Mo. App. 366, 140 S. W. 626; St. Louis, K. & W. R. Co. v. Knapp-Stout & Co. Co. 160 Mo. 396, 61 S. W. 300.

It was not reversible error for the court to refuse to strike out the statement of witness Hawley, to the effect that he was one of the commissioners. He was a competent witness, and the fact that the jury learned he was a commissioner, if error at all, was harmless.

School Dist. v. Phoenix Land & Improv. Co. 297 Mo. 332, 249 S. W. 51; Kansas City Southern R. Co. v. Second Street Improv. Co. 256 Mo. 421, 166 S. W. 296; State ex rel. Hospes v. Branch, 151 Mo. 622, 52 S. W. 390; Green v. St. Louis, 106 Mo. 454, 17 S. W. 496; Payne v. Collier, 6 Mo. 321; Carder v. Primm, 64 Mo. App. 92; Kortjohn v. Seimers, 29 Mo. App. 271.

The testimony of witness Smith as to the character of work to be done was proper, in order to enable the jury to determine the character of the use of defendants' land, since the city was seeking only to condemn the surface of the right of way up to January 1, 1924.

20 C. J. 766; St. Louis, K. & N. W. R. Co. v. Knapp-Stout & Co. Co. 160 Mo. 396, 61 S. W. 300; St. Louis, K. & N. W. R. Co. v. Clark, 121 Mo. 169, 26 L.R.A. 751, 25 S. W. 192, 906; St. Louis, K. & N. W. R. Co. v. St. Louis Union Stock Yards, 120 Mo. 541, 25 S. W. 399.

It was not error to refuse to permit witness Carter to testify as to what he had agreed to pay for property adjoining defendants' farm, but, if it was error, the same was cured by the admission of evidence of the actual sale price after the sale had been consummated.

Baker v. McMurry Contracting Co. 282 Mo. 685, 223 S. W. 45; Carson v.

Cummings, 69 Mo. 325; Hicks v. Hannibal & St. J. R. Co. 68 Mo. 329; Gates v. Chicago & A. R. Co. 44 Mo. App. 488; Schlicker v. Gordon, 19 Mo. App. 479.

An inhabitant of a city or county is a competent juror in a case in which the city or county is a party.

C. A. Rees & Co. v. Road Improv. Dist. 167 Ark. 383, 267 S. W. 770; Pikeville v. Riddle, 191 Ky. 231, 230 S. W. 37; Moore v. Dallas, Tex. Civ. App., 200 S. W. 870; Mironski v. Snohomish County, 115 Wash. 586, 197 Pac. 781; Anderson v. Wilmington, 6 Penn. (Del.) 485, 70 Atl. 204.

Taxpaying inhabitants of a city or county are competent jurors in a case in which such city or county, or even a political subdivision thereof, is a party to the suit.

Priddy v. MacKenzie, 205 Mo. 181, 103 S. W. 968; Columbia County v. Consolidated Contract Co. 83 Or. 251, 163 Pac. 438; State use of County Ct. v. R. M. Hudson Paving & Constr. Co. 95 W. Va. 610, 122 S. E. 173; Wichita Water Co. v. Wichita, 98 Kan. 256, 158 Pac. 49; Minneapolis v. Wilkin, 30 Minn. 140, 14 N. W. 581, 15 N. W. 668; Johnston v. Rankin, 70 N. C. 550; State, Bowker, Prosecutrix, v. Wright, 54 N. J. L. 130, 23 Atl. 116.

It was proper for the court to permit witnesses to testify as to conditions at slaughterhouses on date other than commissioners' report, since other evidence was offered to show that similar conditions had prevailed at the slaughterhouses long before and shortly following their report.

22 C. J. 86, 87; Nelson v. Jones, 245 Mo. 579, 151 S. W. 80; Kansas City Southern R. Co. v. Second Street Improv. Co. 256 Mo. 386, 166 S. W. 296.

Seddon, C., filed the following opinion:

This is a suit brought by the city of Cape Girardeau under the provisions of §§ 8354 to 8371, inclusive, Mo. Rev. Stat. 1919, to condemn an easement in a strip of land, approximately 2,469 feet in length and 10 feet in width, across the north end of appellants' farm for the purpose of constructing and maintaining thereon a 21-inch sewer main or pipe, manholes, and appurtenances, and also to acquire, as an outlet for sewer district No. 5 of said city, the right to the use of a

certain natural water course, known

as Cape La Croix creek, which flows through the north part of appellants' farm. Commissioners were appointed by the court to determine the damages, and on January 18, 1923, said commissioners filed their report fixing appellants' damages at $1,500. Appellants in due time filed their exceptions to said report, whereupon a trial by common-law jury was had on March 16, 1923, resulting in a verdict and judgment fixing appellants' damages at $1,500, from which they appeal.

During the interim between the filing of the commissioners' report and the trial of appellants' exceptions thereto, the city paid into court the sum of $1,500, awarded to appellants as damages by the commissioners, and such sum was paid to appellants on February 17, 1923, prior to the trial by jury of appellants' exceptions to the commissioners' report. The judgment entered upon the jury's verdict contains this finding: "The court further finds that it is left to the discretion of the court to assess the costs of the trial of said exceptions to either the plaintiff or the exceptors, and since the award of the jury of damages to the exceptors in this case is not in excess of the award to said exceptors made by the commissioners herein, but is in the same amount, the court believes that it will be in the interest of justice and right in this matter that said cost be taxed against said exceptors, and it is therefore ordered and adjudged that all of the costs of the trial of said exceptions be and the same are hereby taxed against said exceptors, and that execution may issue therefor."

The rights taken and acquired by the city in this proceeding, as disclosed by the pleadings and judgment, are of two kinds. The first kind are the rights incident to the construction and maintenance of a 21-inch sewer main or pipe, manholes, and appurtenances, on the aforementioned strip of land owned by appellants, and the second kind

(Mo., 284 S. W. 471.)

are the rights to use, as a sewer outlet, the natural water course, known as Cape La Croix creek, across part of appellants' land. In the first group or kind of rights, the city acquired the absolute use of the strip of land from January 18, 1923, to January 1, 1924, for the purpose of constructing the 21-inch sewer pipe, manholes, and appurtenances, and a permanent easement through said strip of land for said pipe, manholes, and appurtenances, and the right to enter on said strip of land after January 1, 1924, at such times as will be reasonably necessary for the maintenance and repair of said pipe, manholes, and appurtenances. In the second group of rights, the city acquired the use of Cape La Croix creek as an outlet to the Mississippi river from said sewer district No. 5 at such times when said 21-inch sewer main is inadequate to carry off all the storm water and sanitary sewage from said sewer system.

Appellants' evidence tends to show that they are the owners of a 320-acre farm, lying in one body and situate upon a hard surface road or highway about one-fourth mile south of the southern limits of the city of Cape Girardeau. Cape La Croix creek flows through the north part of the farm for a half to three quarters of a mile. The farm is improved with an elevenroom residence with heat, water, and bath; four chicken houses; a feedhouse; a workshop; a double garage; corn crib and shed; hay shed; granary; machine shed; combination stock and hay barn; millshed; tenant house; combination machine and hay shed; engine shed; hog shed; smokehouse, power plant, and other outbuildings; and a large well. Appellants' witnesses fixed the reasonable market value of the said improvements at $26,665. The various buildings are located close to and on the south bank of Cape La Croix creek. The farm is used for farming and dairy purposes and is suitable for platting into city lots. The well is located about 90 feet,

and the barns 100 to 150 feet, from the creek. The residence house is about 200 feet south of the creek. About 35 or 40 acres of the farm lie north of Cape La Croix creek, the remainder of the farm lying southwest of the creek. All of the farm is in cultivation, except 60 to 75 acres, which is pasture and woodland. The water in Cape La Croix creek is used by appellants for stock purposes. It is a running stream of water, fed by springs, and is never dry, furnishing water for the stock "all the year around." Appellants, however, do not use the water for human drinking or for house purposes.

Cape Girardeau is a city of the third class, located upon the Mississippi river, and sewer district No. 5 embraces a territory in the western part of the city about 1 miles. in length, of varying width, and containing an area of approximately 408 acres, and is inhabited by about 4,000 people, and approximately 800 families or homes. The natural drainage of the lands within the sewer district is southwardly through a small water course, known as Painter Spring branch, and thence into Cape La Croix creek, which in turn empties into the Mississippi river. Cape La Croix creek drains a watershed about 8 miles long and 2 miles wide, extending northwestwardly from Cape Girardeau. On account of the meandering of the creek, the stream itself is about 11 miles from its source to its point of junction with Painter Spring branch. The point of junction of Painter Spring branch and Cape La Croix creek is within the limits of Cape Girardeau.

From this point, Cape La Croix creek
meanders southeastwardly, beyond

the city limits, a distance of about
2 miles to the Mississippi river. It
drains an area of approximately 20
square miles, or 12,800 acres, about
30 times the area of sewer district
No. 5. It is an active stream with
sufficient fall to create a rapid veloc-
heavy rainfall.
ity, or current, in times of flood or
It is a tortuous

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