City of Hannibal v. Richards

Henry, J. This is an action by which plaintiff’ seeks to recover of defendant the cost and expense of filling two lots owned by him in the city of Hannibal. The work was done by the city on the refusal of defendant to comply with an ordinance, ordering the owners of certain lots to fill them, the health of the city requiring it in the opinion of the city council, as expressed in the preamble to the ordinance. By the city charter whenever, in the opinion of the city council, the health of the city requires it, said council is authorized to order any lot to be filled by the owner thereof. The lots owned by defendant were lot No. 2 and the north third of lot No. 1 in block No. 14. On a trial of the cause plaintiff’ had judgment from which defendant has appealed. The evidence for plaintiff’ tended to prove the cause of action alleged in the petition, and defendant then offered to prove by witnesses present in court, that Bear Creek had been from time immemorial a natural running stream about fifteen miles in length, with a width as shown on the plat in evidence, with defined and actual banks, with a volume of water sufficient for navigable purposes for a short distance at certain seasons of the year. That in 1849 and '1850 the plaintiff wrongfully cut a new channel across the [335] neck of the bend shown in said plat so as to run straight to the river, leaving out from said channel the part of Boar Creek on defendant’s property, all wrongfully done by said plaintiff without warrant of law; that in 1859, subsequent to defendant’s said purchase, the plaintiff constructed its embankment on Second street, as shown in said plat, said embankment being about fifteen feet high running across said bend of Bear Creek so as to cross said creek twice, cutting off' defendant’s lots and cutting off' the channel of .said creek therefrom, and damming the water on said lots of defendant without leaving any drain for the water to escape from that part of said creek on defendant’s land, and that defendant protested to the city authorities at the time against said action; that after such embankment was made the defendant requested plaintiff to open a passage way for the drainage of said stream from his lots, hut the plaintiff then and ever since has neglected to put in any such drain ; that the part of said creek bed thus cut off was the drainage basin of a large adjacent area, thus wrongfully converted into a pond by said plaintiff without authority of law; that at the time the plaintiff passed its ordinance the .said pond could have been drained by opening culverts through said old channel across said Second street at an expense not exceeding $75, and that the drainage of said old channel was thus entirely practicable at light expense, and would have been entirely effectual in relieving said lots, and that there never would have been any objection to defendant’s lots as a nuisance but for the said action of the plaintiff; that .whatever alleged nuisance was on said lots was created by the direct and 'wrongful action of the plaintiff only; that the work so done by defendant [plaintiff?] did not abate said alleged nuisance or improve the health of said city, but continued to leave said lots subject to overflow ; that the filling up of said lots was entirely unnecessary and unadvisable, and was done contrary to the will of defendant; that at the time the said alleged ordinance was [336] passed, the said creek channel had become changed by a wash on the outer euz’ve to the z’ear end of said lots. Further, the defendant offered to prove by said witnesses that the woz’k actually done on defendant’s lots did not amouzit to more than ninehuzzdred and fifty-four 82-100' cubic yards, and that the reasonable value of doing such work at this tizne was ziot over twenty-five cents per cubic yard; that the plaintiff’s actual cost of the work at the time was not three-fourths of the aznount ehaz’ged in the petition, and that the city unnecessarily azzd wrongfully aggravated its cost of doing such work, that no pez’son’s health was ever injured by said condition of defendant’s lot; that the alleged cost of filling said lots was greater than the value of the property so filled; that the fill made was not on the whole of the parcels described in the petition, but only on the rear end thereof and on the undescribed fraction thez’eof. To the introduction of this evidence the couz’t sustained plaintiff's objection and thereupon gave such instructions as autln rizod a verdict for plaintiff". Considering as proved, the facts which defendant offered to prove, the construction of the embankment on Second street by the city was subsecpient to defendant’s purchase of the lots and that embankment prevented the flow of the water from the lots and occasioned its accumulation upon them, which, it is alleged injuriously affected the health of the city. It has been repeatedly held by this cozrz’t, that the owners of the lots under szzch circumstances could not maizztain an action against the city for the damage to them but that such injury is damnum absque injuria. Now, we are asked to hold, also, that the city may create a znzisanee upon the lot of an individual and then have it abated at his expense, if he refuse to do it when ordered. As well at once declaz’e that zzo one can acquire any rights to town or city lots which the municipal corporation is bound to respect. The city cannot create a nuisance upon the property of a citizen and ' compel him to abate it. Weeks v. City of Milwaukee, 10 [337] Wis. 269. The cost of filling the lots was the extent of defendant’s liability, if any existed, and we see no reason why-defendant should not have been permitted to show that it was less than plaintiff: claimed. There is no law declaring municipal corporations infallible or that their demands are ineontestible. The charter authorizing the city to fill a lot, on default made by the owner, gives her a demand against him for the cost of filling it, if done by the city, and the averment of the amount and cost of the work is one upon which an issue may be made. At a trifling expense at the time plaintiff passed the ordinance requiring these lots to he filled the pond could have been drained and but for the neglect of the plaintiff' to make such drain the nuisance complained of would never have existed. The judgment is reversed and the cause remanded. All concur.