Edmondson v. City of Moberly

Barclay, J. — Conceding full effect to the authority conferred by the city’s charter to establish a sewer system, it yet falls far short of legalizing the municipal acts here in question. The power granted was general. It did not expressly indicate and sanction the particular arrangement of drains adopted. Hence the power itself must be regarded as subject to the just limitation forbidding its exercise in such manner as to create a [526] nuisance injurious to private rights of property where such a consequence is not a necessary result of exerting the power. This principle is now quite generally recognized as part of our American common law. Seifert v. Brooklyn, (1886) 101 N. Y. 136; Morse v. Worcester, (1885) 139 Mass. 389; Balt. & Pot. R. R. v. Church, (1883) 108 U. S. 317. It will not be necessary to elaborate the above statement of this rule or to attempt to deal with the difficulties attending its practical application. That it governs this case we have no doubt. The evidence offered by plaintiffs tended to show that a nuisance, specially injurious to them, had been caused by the acts of defendant and justified the submission of their cause to the jury. The wrong of which plaintiffs complain is not merely public in its effect. It is peculiarly injurious to them by reason of its proximity to their abode, in consequence of which they sustain discomfort and annoyance in the possession of their property and a diminution in its value not shared by the community in general. Hence it may properly be the basis of a private action by them. Regarding the admissibility in evidence of the testimony of George W. Edmondson, one of plaintiffs, it should be noted that the effect of the deed under which they hold the property is to create an estate by entireties. R. S. 1879, sec. 3949. Therefore both jDlaintiffs have a substantial interest therein and as such both are competent witnesses in an action for an injury to it, irrespective of their marital relation. It is too evident to require discussion that the act of 1885 for the ascertainment of damages to private property for public use (Sess. Acts. 1885, p. 47) can have no application to an injury in the nature of a tort committed by a municipal corporation as here shown. The judgment is reversed and the cause remanded. All concur except Ray, O. J., not sitting, and Shebwood, J., absent.