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are not misleading, confusing, or contradictory. Chicago G. W. R. Co. v. Kemper, 256 Mo. 279, 166 S. W. 291, Ann. Cas. 1915D, 815. Let us then examine respondent's several instructions for the purpose of determining whether, in the light of all the instructions given in the case, they can be said to be misleading, confusing, or contradictory.

Respondent's instruction No. 2 deals with the matter of the damages or compensation to be allowed appellants on account of the taking of certain rights across the described strip of land for the 21inch sewer main, manholes, and appurtenances. In substance it told the jury that they shall award to appellants the reasonable rental value of the land temporarily acquired for the time which plaintiff proposed to use it absolutely, i. e., from the date of the commissioners' report until January 1, 1924, and (besides) the damages which the jury might find from the evidence will result to appellants' remaining land because of such temporary use. In 20 C. J. 740, the rule is thus stated: "Where land is taken, not to be held permanently, but only for temporary use, the measure of compensation is not the market value, but what the property is fairly I worth for the time during which it is held, and the same rule applies where property, no part of which is taken, is temporarily injured. The criterion for determining the compensation is held, in some cases, to be the rental value of the property." Our own court seems to have fol

Damages-for temporary use of land.

lowed the foregoing rule. Chicago, S. F. & C. R. Co. v. McGrew, 104 Mo. 282, 15 S. W. 931; St. Louis v. Brown, 155 Mo. 545, 56 S. W. 298. The instruction furthermore told the jury that they should award such further damages as they might find and believe from the evidence will result to appellants on account of the use by respondent of said strip of land for the construction, maintenance, and repair of said 21-inch sewer pipe. We see

nothing misleading, confusing, or contradictory in this instruction when read with all the instructions in the case.

Respondent's instructions numbered 3, 6, and 7 have to do with the rights acquired by the city to use the natural water course, known as Cape La Croix creek, as an outlet for the sewer system, and deal with the subject of damages resulting from such use. It is alleged in the condemnation petition upon which this proceeding was tried that "the said city finds it necessary in the construction of said sewer to acquire the natural water courses or public drains for outlet purposes as heretofore described," and the evidence adduced shows that Cape La Croix creek is a natural or public water course some 11 miles in length flowing through a section of, and within the corporate limits of, Cape Girardeau, and that the junction of Painter Spring branch with Cape La Croix creek is within the corporate limits of that city and some distance above appellants' farm, through which Cape La Croix creek flows on the way to its mouth into the Mississippi river. Therefore it cannot be well said that appellants are the absolute owners of said natural water course, for they are merely riparian owners and their rights in, and uses of, the waters of said stream are subject to the principles of riparian ownership. As such riparian owners, appellants must en- Waters-remedy dure without reme- for pollution of dy such impurities


and pollution as find their way into the stream from the natural wash and drainage of a city situated upon its banks and of the lands of other riparian owners within the upper watershed of said stream. 1 Lewis, Em. Dom. 3d ed. p. 82, § 77. In Valparaiso v. Hagen, 153 Ind. 337, 341, 48 L.R.A. 707, 74 Am. St. Rep. 305, 54 N. E. 1063, it is said: "A municipality in large sense is a riparian proprietor. Its officers stand for the corporation. They are empowered by the state to

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

provide and enforce sanitary measures for the preservation of the health and welfare of the public. The corporation has the same right to exist as an aggregation, and to enjoy its possessions, as a natural person. . It may open and improve streets, construct gutters, sluices and waterways, and if storm water carries into these latter the multifarious filth and garbage incident to populous places and bears the same away by natural channels to the general water course of the basin, the right of the municipality to permit it will not be doubted, even though the waters of the stream are thereby so polluted as to render them unfit for ordinary uses. And wherein have the dwellers below ground of complaint? They have suffered only that which they should have reasonably expected and estimated in acquiring their property. The question is rooted in the natural law of self-preservation. And if cities are permitted to adulterate streams by allowing all accumulating surface impurities to flow into them by natural channels, we do not perceive why the underlying principle will not allow them to deepen these natural storm chan

nels and transform them into covered sewers, nor why the right to protect the health and welfare of the public against one class of noxious matter should not be extended to all classes of equal virulence. And, while action must be taken with a cautious regard for the rights of those below, it has come to be a scientific fact, generally accepted, that the minimum of mischief resulting from closet contents may be attained by an early dispatch through the medium of flowing water, wherein solids are dissolved and chemical action for purification speedily takes place."

In Joplin Consol. Min. Co. v. Joplin, 124 Mo. 129, 135, 27 S. W. 408, this court has said: "The proprietor of land through which a stream flows cannot insist that the water shall come to him in the natural pure state. He must submit, and

that, too, without compensation, to the reasonable use of it by the upper proprietors; and he must submit to the natural wash and drainage coming from towns and cities."

Eminent domain -use of stream


It would therefore seem that, so long as respondent does not make use of Cape La Croix creek as to deprive appellants of their riparian rights in that stream, which they have subject to the reasonable use of the riparian owners above, including the city of Cape Girardeau, appellants have no claim for compensation or damages. In other words, if the city does not cause the waters of Cape La for sewer outlet Croix creek to be polluted beyond the extent of their pollution from the natural wash and drainage coming from the city and upper proprietors before the opening of the sewer system, or to be rendered more unfit for use than such waters were prior to the construction of the sewer, appellants have no lawful claim for compensation or damages. Ample evidence was offered at the trial tending to show that the waters of the creek were polluted and contaminated by reason of the natural wash and drainage from its watershed from slaughterhouses, open cesspools, and street or gutter drainage, before the construction and operation of the proposed sewer system. On the other hand, however, the city must respond in damages in the event that its use of the creek so pol- stream-liabillutes the waters thereof as to render the same more unfit for use than they were prior to the construction and operation of the sewer system, or so pollutes the stream as to deprive the appellants of the uses of the water they would otherwise reasonably enjoy. This principle is recognized in Joplin Consol. Min. Co. v. Joplin, supra, wherein we said: "But a city has no right to gather its sewage together and cast it into a stream so as to injure the lower proprietor. For damages thus sustained, the

-pollution of


lower proprietor will have an action."

We think that respondent's instructions 3, 6, and 7, all of which deal with the proposed uses of Cape La Croix creek, as a sewer outlet, correctly state the law relating to the rights of riparian owners, and, when read together and when read in conjunction with appellants' own instruction on the measure of damages, they are not confusing or misleading, or contradictory of other instructions in the case. In other words, all of the instructions in the case, when read together as a complete and entire charge to the jury, furnished a proper guide to the jury on the measure of damages.

Appellants criticize respondent's instruction No. 6, because (they say) it assumes that the only possible damage to appellants' farm is by reason of the waters of Cape La Croix creek being rendered more unfit for use, thereby excluding other elements of damage shown in evidence, such as the deposit on appellants' land of sewage, sediments, oils, and greases, which will cause odors, leave stains and discolorations, and serve as media for the growth of bacilli. We think that such elements of damage are fairly and reasonably comprehended within the words "more unfit for use" as used in said instruction.

Trial-instructions-damages for use of stream for sewer outlet.

Respondent's instruction No. 7 is criticized because it is said to assume that respondent is the owner of a dominant estate, whereas there is no evidence that the city is the owner of a dominant estate. The evidence does show, however, that Cape La Croix creek flows through the city of Cape Girardeau and that the natural drainage of a section of that city is into Waters-city as said creek. As said in Valparaiso v. Hagen, supra, "a municipality in large sense is a riparian proprietor." We regard the criticism as hypercritical.

riparian owner.

Appellants complain of respondent's instruction No. 4, wherein the jury were instructed: "That the burden of proof in this case is on the exceptors to prove, by a preponderance of the evidence, that the tract of land owned by the exceptors will be damaged in excess of the special benefits, if any, that may accrue to it by reason of the construction and maintenance of the sewerage system."

It is asserted that the burden of proof as to damages is on appellants, and the burden of proof of special, or peculiar, benefits is on the respondent, and hence appellants are not properly required to prove that the damages exceed the benefits. If this instruction had been the only one upon the burden of proof, there might be some basis for appellants' contention. However, the trial court gave an instruction on behalf of appellants which told the jury that, "before you can deduct anything from exceptors' damage, if any, for special or peculiar benefits, you must first find and believe from the evidence in this case that the remainder of exceptors' property not taken will receive direct and peculiar benefits from the construction of the plan of sewerage for said district No. 5, and by special and peculiar benefits are meant such benefits as are not common or general to other lands in the same community, and you are further instructed that the burden is upon the city of Cape Girardeau to show by the preponderance or greater weight of the testimony that the special or peculiar benefits, if any, will accrue to the remainder of exceptors' property." (Italics ours.)

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(— Mo. —, 284 8. W. 471.)

instructions, and the assignment must be ruled against appellants. VII. Appellants' final assignment is that the trial court erred in taxing the costs of the trial against appellants. The statute (Mo. Rev. Stat. 1919, § 8363), under which this proceeding is had, provides: "The cost of the proceedings shall be paid by the city up to and including the filing and copying of the report of the commissioners, and the court, as to any cost made by subsequent litigation, may make such order as in its discretion may be deemed just."

The foregoing special statute is identical with the general statute relating to condemnation proceedings by corporations. Mo. Rev. Stat. 1919, § 1796. Under the lat

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Measure of compensation in condemnation of right to pollute stream. [Damages, § 279.]

The right of a riparian owner to have the water of a stream come to him in its natural purity or in the condition in which he has been in the habit of using it for purposes of domestic use or of his business is as well recognized as the right to have it flow to his land in its usual quantity. 27 R. C. L. 1212.

The right to pollute a stream and the liability in damages, or the duty to make compensation for pollution, are, however, beyond the scope of the annotation except so far as they affect the measure of compensation in condemnation proceedings.

In Washburn & M. Mfg. Co. v. Worcester (1891) 153 Mass. 494, 27 N. E. 664, where a city appropriated a brook and changed it into a sewer under authority of a statute, which also provided for compensation, the court refused to apply a rule of damages which treated the polluted stream as having been entirely diverted from the petitioner's land, when the brook continued to flow on his land as before pollution. The court, in speaking of the measure of compensation for pollution, said: "The appropriation

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was a conversion of the brook into a

sewer, whereby its waters would carry all the pollution which would come to them from other drains or sewers. The question for the jury at the trial was, How much less were the waters of the mill brook worth, for use in connection with the petitioner's land, by reason of being made to flow through a common sewer instead of flowing as they did just before. In passing upon the question of damages, the prospective change, if any, in the quality and condition of the water which would reasonably be expected to result from making the brook a common sewer, properly may be taken into account."

In Joplin Consol. Min. Co. v. Joplin (1894) 124 Mo. 129, 27 S. W. 406, where a statute impliedly authorized a city to use principal courses of drainage for sewers, and a stream was polluted by the emptying of sewage into it, thereby making it unfit for use and damaging plaintiff's land, the measure of compensation in the condemnation proceedings was held to be all damages to the land of the plaintiff not taken, arising from the use of the stream as an outlet for the sewer.

In Doremus v. Patterson (1908) 73 N. J. Eq. 474, 69 Atl. 225 (affirmed per curiam in (1914) 82 N. J. Eq. 640, 90 Atl. 1135), the measure of compensation for a specified temporary condemnation for a definite period of time of the right to pollute a stream was held to be the annual rental value of the property on the banks of the stream; depreciation in the market value of the property was not taken into account, because, as the court said, the injury was only temporary, and removable.

In McLaughlin v. Hope (1913) 107 Ark. 442, 47 L.R.A. (N. S.) 137, 155 S. W. 910, the measure of damages for condemning the right to pollute a stream was the value of the extent of injury caused to a leasehold of a mill site and mill, which were rendered worthless by the draining of sewage into the stream by a city. The state Constitution provided that private property should not be taken, appropriated, or damaged for public use. without just compensation; but damages here were assessed on the theory of a permanent taking under the right of eminent domain.

El Dorado v. Scruggs (1914) 113 Ark. 239, 168 S. W. 846, recognizing the principle laid down in McLaughlin. v. Hope (Ark.) supra, that pollution of a stream under a similar constitutional provision should be compensated for, as for a permanent taking under eminent domain, held that the measure of damages for the pollution of a stream by affluent from a septic tank was the difference.in value of the land through which the stream ran, before and after it was used as an outlet for the sewer. The court said: "It may be said, in estimating the damages that accrued to the plaintiff, he may show the value of his land for any purpose to which it was adapted at the

time the damage was done to it." The court further said: "The jury might take into consideration all damages that were suffered by the plaintiff on account of the necessary flushing of the septic tank." And the difference between the fair market value of the whole tract before and after the appropriation of the right is recognized in the reported case (CAPE GIRARDEAU v. HUNZE, ante, 25) as the measure of condemnation.

In Jones v. Sewer Improv. Dist. (1915) 119 Ark. 166, 177 S. W. 888, following McLaughlin v. Hope and El Dorado v. Scruggs (Ark.) both supra, the measure of damages to a riparian owner from taking the use of a stream as an outlet for sewage was held to be the difference in value of the land through which the stream ran, before and after it was so used. The state Constitution, allowing cities, in forming the sewer improvement districts, to secure outlets outside of the cities for the disposal of sewage, also provided that private property should not be taken, damaged, or appropriated for public use without just compensation. In this case, a natural stream flowing through a farm was polluted by the affluent from a septic tank used by the city in its condemnation of the stream for disposal purposes.

In Cook v. Mebane (1926) N. C. -, 131 S. E. 407, involving compensation to be paid by a municipality for condemning under a statutory power of eminent domain the right to pollute the waters of a natural stream with sewage, an instruction that, should the jury find the injured party entitled to recover damages on account of the pollution, they should find the decrease in the market value of the property of the plaintiffs directly attributable to the pollution of the stream, was held correct. F. G. M.

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