- A third steamer Cape Girardeau was christened 100 years ago (3/26/24)
- Cape Girardeau christens its namesake (3/19/24)
- The humanist philosophy of Lester Mondale (3/12/24)1
- Cape Osteopathic Hospital opens its doors (3/5/24)
- 8 killed and a million dollars damage done in 1924 tornado (2/27/24)1
- Jackson's militant priest, county recorder at odds over marriage licenses (2/20/24)
- Streaking fad comes to Cape (2/13/24)2
West End sewer prompts legal battles
In the spring of 1922, about 100 West End property owners gathered at Cape Girardeau Central High School (now Schultz Senior Apartments) and unanimously agreed to push through a proposition to build a sewer in the residential areas west of Pacific Street. The issue had been considered years earlier, but World War I diverted the effort. Nearly everyone who spoke at the 1922 meeting remarked on the unsanitary conditions of the West End "owing to stagnant water standing on low lots, which have no drainage, and the stench from cesspools."
The city fathers agreed with the scheme, and in June 1922 it was announced the plans and specifications had been completed. Bids were to be taken within two weeks, and by July 1 construction was expected to begin. But the optimistic timetable failed. The contract for the district wasn't awarded until Oct. 2. It went to J.J. Dunnegan, a contractor of Shenandoah, Ohio, on a bid of $330,924.02. Dunnegan planned to bring in three trenching machines and three drag line outfits, along with a supervisory crew of eight foremen and superintendents. He planned to hire several hundred laborers. In addition all the sewer pipe, from 8 to 24 inches in diameter, would be manufactured locally by the McCracken Pipe Co. of Sioux City, Iowa.
Construction took a year to complete. At various times during those 12 months, streets were torn up, water was cut off from some residences, and, at one point, it was almost impossible to travel westward across the city because of ditches and large mounds of dirt.
Several lawsuits eventually were filed against the city and the contractor. The first is the one I found most interesting, because of the supporting testimonies given by experts regarding the quality of the sewer district design and the objections of several landowners.
Laborers with the Works Progress Administration dig a trench in 1936 for the laying of a new West End sewer line. (G.D. Fronabarger ~ Southeast Missourian archive)
Published March 13, 1923, in the Southeast Missourian:
SEWER DAMAGE SUIT TO COURT
Damages totaling $15,000 are asked in a suit being tried in Common Pleas Court today in which a jury is asked to assess damages sustained by property owners south of the city limits of Cape Girardeau, as a result of the construction of the West End sewer.
The suit results from the plan adopted by the city council to have the overflow water from the district follow the course of Painter Creek, empty into Cape La Croix Creek and then flow into the river.
The suit is being tried on exceptions filed by attorneys representing Hermina Hunze, Ben Hunze and Leo Hunze, Louis Houck and Carroll Junger, to the report of the commissioners which fixed the amount of the alleged damages. The city is defendant.
Three commissioners appointed by Judge John A. Snider reported on Dec. 30, fixing damages at $1,700 for the three plaintiffs. The Hunze complainants were given $1,500; Louis Houck, $150, and Junger, $50. No other claimants were allowed. The commissioners were: Otto Kochtitzky, C.C. Hawley and Jacob H. Campbell.
Attorneys for the complainants filed exceptions to the report of the commissioners, and asked for damages totaling $15,000.
Claims water polluted
Indications that the result of the case will hinge on the consideration the jury gives to the claim that the water in Cape La Croix Creek will be polluted and made unfit for drinking water for stock, were given in the opening statements to the jury by the respective attorneys.
A.M. Spradling, one of the attorneys for the exceptors, declared that a 21-inch sewer, designed to carry away the sewage from the district, would be insufficient, and that the overflow water which is to go into the creek would be filled with refuse and waste from homes in the district. He told the jury that evidence would be presented to show that the sanitary sewer which will go underground from a receptor at the corner of Henderson and College streets, would not carry away the water in case of a heavy rain and the overflow water, with much of the sewage, would flow into the creek. He explained that the Hunzes, who are farmers living a short distance south of the city limits, depended upon the creek for a water supply for their stock, and they would be damaged by the waste in the water supply.
Rush H. Limbaugh, one of the attorneys for the city, went over the sewer plan carefully in his opening talk to the jury. He explained that the sewer pipes would converge, and empty into a receptor at Henderson and College streets. This receptor, he said, would be 25 feet deep, and would have the 21-inch sanitary sewer as an outlet. This sewer, he said evidence will show, will carry away water and sewage except in case of a hard rain.
Makes water pure
"But evidence will show that the overflow water that leaves the exceptor and goes down Painter Creek to Cape La Croix Creek will even be purer than that which now flows in the creek. Testimony will show that the water by test is now highly impure, and that the sewage which may flow into the creek after the sewer is built will be practically pure, due to the distance it must flow," Limbaugh declared.
Attorneys for the exceptors are attempting to show that Hunze's property and others will be damaged to a great extent. The first witness called, J.W. Gerhardt, contractor, placed an estimate of $26,665 on the farm buildings at the Hunze home.
The case is expected to occupy the greater part of Wednesday, there being nearly 20 witnesses called, many of them engineers.
Both sides are represented by an array of attorneys. Spradling and (S.P.) Dalton represent the receptors, and are assisted by Giboney Houck, while the city is represented by Rush H. Limbaugh, James A. Finch of New Madrid, and City Attorney Ed Drum, with Mayor James A. Barks assisting.
Regardless of the outcome of the case, the expense will be borne by the residents of the sewer district. The damages allowed will be added to the cost of the sewer installation.
Published March 15, 1923, in the Southeast Missourian:
SEWER DAMAGE CASE IS ARGUED
Arguments to the jury which will fix the amount of damages which may be sustained by property owners south of Cape Girardeau because of the operation of the West End sewer, were started in Common Pleas Court late today, bringing to a close one of the hardest fought legal battles in local court annals. Damages totaling $15,000 are asked by the property holders, who are: The Hunze heirs, Louis Houck and Carroll Junger.
The case was expected to go to the jury at 5 p.m.
The case passed into its third day with the stiff fight unabated, and attorneys for both sides struggling for every point. The city, on the defense, continued to present testimony at the morning session today, after holding the court's attention since early Wednesday. Rebuttal testimony was started shortly after noon.
The fight centers around the damages which the property owners may sustain by the overflow of sewage from the West End residence section and which a 21-inch sanitary sewer may not be able to handle in case of a heavy rain. Expert witnesses have given varied testimony, those for the exceptors declaring that the property will be damaged, and those for the city are just as sure that there will be no damage, and in reality an improvement.
The city played its trump card Wednesday afternoon in the testimony of W.W. Horner, city engineer of St. Louis, and Maj. C.E. Smith, head of the C.E. Smith engineering firm, consulting engineers for the sewer project. Both are recognized as expert sewer engineers, attorneys declare, and their testimony was expected to carry considerable weight with the jury.
Both declared on the witness stand that the present sewer plan was ideal, and one which has been used in larger cities with good results.
Major Smith's testimony especially was believed to carry weight. With an attitude of sureness which visibly impressed his hearers, the witness outlined the general plan for the sewer, declaring that property holders through whose property the storm water and overflow sewage would go, would be materially aided, instead of damaged.
Statements of the engineer were borne out in testimony of A.C. Magill, State Teachers College chemist, and two Cape Girardeau physicians, Dr. W.C. Patton and Dr. O.L. Seabaugh. Maj. Smith testified that the water in Cape La Croix Creek at present is highly polluted and his statements were borne out by chemical tests, results of which were testified to by the college chemist. Maj. Smith said that by the system which has been adopted of having the sewage in case of a heavy rain go into the creek, would not pollute the water more highly than is done now. He said that the overflow sewage would be diluted to such an extent that it would not be harmful for drinking water for cattle, a purpose it is now used for.
Maj. Smith's testimony was considered by attorneys for the city as exceptional. James A. Finch, of New Madrid, associate counsel for the city, declared that in his 20 years of court experience, he had never seen a better witness in any case. He said his answers were plain, and showed knowledge of the subject. He met every question and answered quickly and to the point.
City witnesses varied to a great extent in the amount of damages which they said should be allowed.
Different sums figured
The amounts varied from $30, the lowest, to $1,000, the highest placed by city witnesses. Witnesses for the exceptors placed the damage as high as $20,000.
L.L. Bowman, local attorney and real estate dealer, placed the damage at $30. He said this amount would reimburse the property holders for this year's crop for the strip of land which is less than an acre, and also reimburse them for years to come for any work which might be done on the sewer. He said that there would be no damage to the stream.
C.C. Hawley, drainage contractor, and city engineer of Cape Girardeau when the sewer in District No. 1 was installed, testified that he was one of the commissioners appointed to appraise the land through which the sewer would pass. He estimated the damage at about $600.
Otto Kochtitzky, a drainage contractor of Cape Girardeau, and a commissioner appointed to appraise the land, testified that, after careful estimates, he placed the damage at from $500 to $1,000.
Presley Hopper, local real estate dealer, said the Hunze farm was worth about $125 an acre, and that the damage would not be more than $600.
(City) Commissioners Roy Brissenden and Louis Wittmor testified as to the amount of sewage that is now going into Cape La Croix Creek by virtue of overflows in the cesspools. They said that there about 225 cesspools in the West End which overflowed.
Mayor is witness
Mayor James A. Barks was called on the witness stand at the afternoon session to testify to the condition of cesspools in the West End, how they overflowed and how they drained into Cape La Croix Creek to pollute the water there.
These witnesses were used by the city in an effort to show that the creek is polluted now to a great extent, and unfit for human use.
Mayor Barks also testified to taking three samples of water from the vicinity of the land in question on Feb. 25, and having them tested by Professor Magill. One was taken from Cape La Croix Creek above the junction with Painter Spring Branch, one below the junction, and one from Painter Spring Branch above where it flows into the creek.
Professor Magill testified that he tested the water samples, finding germs in two of them which would make water unfit for human use. These germs, he said, are ones which are found in the intestines of animals. The germs were found in great numbers in the samples from Painter Spring Branch and in the creek below the junction, but none above.
Dr. W.C. Patton, former mayor of Cape Girardeau, declared that the water in Cape La Croix Creek would be materially better for use after the construction of the sewer, than before. Practically the same testimony was given by Dr. Seabaugh, who said that the water in the creek now is impure and unfit for use.
The jury must decide on some damages for the property holders. If this damage is less than that allowed by the commissioners, the exceptors must bear the costs in the case, but if larger, the city must pay.
Published March 15, 1923, in the Southeast Missourian:
HORNER SAYS CAPE SEWER PLAN GOOD
SYSTEM COMPARES WITH BIG CITY FACILITIES
That the system of sewers in Cape Girardeau is on a par with those of larger cities in America, and very much better than the average city of its size, was the expression Wednesday afternoon of W.W. Horner, city engineer of St. Louis, and one of the recognized sewer experts of the United States, who was here to testify in a trial in Common Pleas Court.
"Very few cities of the size of Cape Girardeau have such an elaborate sewer system as obtains here," Horner told a Missourian reporter. "In most cities of this size no provision whatever is made to take care of the storm water, while generally only necessary precaution is made for sanitary sewage. I consider the sewer system here, including the new sewer in District No. 5, which is now being installed, is on a par with that of larger cities."
Horner said that few of the smaller cities undertake the installation of such a gigantic sewer project as is embodied in the so-called West End sewer. In the majority of cities of this size, he said, cesspools are used, and no provision whatever is made for storm water.
Horner, as the chief engineer of St. Louis, is working on the plans for a $16,000,000 sewer project in that city, which will include the closing of the River Des Peres open sewer, and numerous other smaller projects. He was closely questioned in the course of the trial in Common Pleas Court Wednesday regarding the work there in comparison with what is being done here.
Praise of Horner as a sewer expert was made by a number of St. Louis engineers who were called to testify in court. They said that he was considered one of the leading sewer engineers of America.
The St. Louis engineer, back in 1915 when the plans for the West End sewer district were being made, was engaged as a consulting engineer, and in 1917 gave his approval to the plans.
Published March 15, 1923, in the Southeast Missourian:
WATER OF STREAM IS POLLUTED BY SLAUGHTER HOUSES -- SMITH
Work on the installation of the West End is progressing satisfactorily and the contract is already half completed, according to Maj. C.E. Smith, head of the C.E. Smith engineering firm, consulting engineers for the project.
"The work is going along nicely and is very far ahead of the estimate we placed at the beginning of the contract," Maj. Smith told The Missourian today. "If the work is carried on at the same rate of speed during the spring, it will be completed several months before the time allotted by the contract."
Maj. Smith has made several very careful surveys of the sewer work here and is optimistic about the results. He said that he believed the plan here is one of the very best that could be adopted, and one that will cause very little trouble in the future.
In the course of his surveys here, as chief consulting engineer, Maj. Smith has gone over the territory carefully and is well acquainted with the sewer situation.
He testified in Common Pleas Court Wednesday afternoon about the proposed plan to have overflow sewage go down Painter Spring Branch and turn into Cape La Croix Creek. He declared in his testimony that he believed that it would be very satisfactory and a decided improvement over the situation which now is in operation.
In his testimony he placed particular emphasis on the condition of three slaughter houses on the Bloomfield Road, which he described as being in a "terrible condition." He declared that refuse from these slaughter houses is flowing into Cape La Croix Creek, and that an overflow sewage which may come from the West End residence section in rains cannot be as bad as the present pollution of water in the stream.
"I found blood flowing from the slaughter houses into the the creek, and intestines of animals strewn about on the ground in a decaying condition," Smith testified. "The slaughter house is on the bank of the creek. I saw beeves which had been only recently killed hanging in the slaughter house with the blood running through a trough and into the creek.
"In a wagon nearby were intestines of dead animals, which had been left there, presumably to be hauled away. Back of the slaughter houses was dried blood, skulls and bones from the dead animals. In a box nearby were intestines, partially covered with quick lime, supposedly to kill the odor, and destroy the decaying matter. An outhouse is near the slaughter house, and the matter from this goes into the creek, also. There evidently is no attempt made to take care of it."
Duke Miles, a witness in the case, and the owner of the slaughter houses, admitted that blood from the houses flowed into the creek, but declared that they hauled the remainder of the refuse to a nearby hill.
Published March 16, 1923, in the Southeast Missourian:
JURY AWARDS $1,500 AS SEWER DAMAGE
AMOUNT ALLOWED IN COMMON PLEAS COURT IS THE
SAME AS WAS GRANTED PREVIOUSLY BY SPECIAL
BOARD OF COMMISSIONERS
Deliberating less than an hour and a half, a jury in Common Pleas Court at 10:30 a.m. today returned a verdict awarding the Hunze heirs $1,500 for what damages may be sustained to their land by reason of the operation of the West End sewer. The amount was the same as had been allowed by the three commissioners appointed by the court to assess the damages. The jurors reached an agreement sooner than was generally expected by attorneys who have watched the case. The verdict was signed by nine of the jurors, indicating that the 12 men did not concur in the decision.
Given the case at 9:05 o'clock this morning, the jury went into session immediately. It was reported that there was a divergence of opinion among some of the jurors, but this was quickly adjusted and the verdict was returned at 10:30, three jurors however refusing to the last to concur in the decision. In a civil suit, only nine jurors are necessary for a verdict.
Appeal to be asked
An appeal will be taken in the case, Albert M. Spradling, attorney for Hunze, announced shortly after the verdict had been read.
The verdict of the jury brought to a close one of the most hotly contested legal battles in court here. The case held the attention of the court for four days, testimony starting on Tuesday.
One other exception to the report of the commissioners is on file in court, but no announcement was made today that it would be fought out. This is held by Louis Houck, who was awarded $150 by the commissioners.
To attorneys for the city, the verdict of the jury today was a decided victory. They believe that the other exceptor will accept the commissioners' bid and will not attempt to fight the case in court.
Question of costs
Hunze must pay the costs in the case, Judge Snider ruled.
The legal battle which was waged in court over the question of damages has been brewing for several years. When the plans for the West End sewer were first discussed, the question of the disposal of the sewage came up and Hunze is said to have been one of the opponents of the scheme, for the reason, he said, that his land would be damaged.
When the sewer plans were finally adopted, right of way on all the land was secured, with the exception of Hunze, Houck and (Carroll) Junger. The money was paid over, but they filed exceptions. Junger, however, has withdrawn his exceptions.
The 21-inch sanitary sewer from an interceptor at the corner of Henderson and College streets, will pass through land belonging to the three parties. The distance which the sewer will pass through the Hunze land is something over a half-mile, it was stated in the trial. The city is to complete its work on the land by Jan. 1, 1924, with the right at any time to go in and repair the sewer.
In addition to the sanitary sewer the exceptors were opposed to having the storm water from the West End district, mixed with what sewage might not go through the sanitary sewer, flow through the sanitary sewer, flow through an open ditch into Cape LaCroix Creek, which passes through their land. This was the principal feature of the trial. The property holders claimed that the creek carrying sewage in time of rain would be a nuisance and the water would be polluted to such an extent that it would be unfit for drinking water for stock. Sewer engineers, testifying for the city, denied this.
Two Cape Girardeau physicians, Dr. John D. Porterfield and Dr. A.L. Fuerth, were used by the exceptors' attorneys in rebuttal testimony Thursday afternoon. They testified they believed the water in Cape La Croix Creek would be highly polluted by the emptying of overflow sewage into it.
Dunnegan Construction Company completed its work in Cape Girardeau in November 1923 and, after some back-and-forth with the City Council over some of its charges, was paid $387,336.93, approximately $60,000 more than the original estimates. That wasn't all profit for the company, however. J.J. Dunnegan, in an interview with the Southeast Missourian as he awaited acceptance of his work by the city, declared he lost $100,000 installing the West End sewer. "More than half of this amount was in actual cash, paid out for labor and material, while the remainder represents in part the depreciation of machinery," Dunnegan said.
It also cost a man his life. C. Volokie, a 30-year-old concrete finisher from St. Louis, was buried alive in a sewer ditch cave-in on Saturday, Feb. 3, 1923, on South Ellis Street. Eight men dug 40 minutes uncovering his lifeless body.
Louis Houck probably said, "See, I told you so," or something stronger, when the 6-month-old sewer system sprang a leak on land he owned. From a March 25, 1924, article in the Southeast Missourian: "The 21-inch sanitary sewer line, carrying sewage from the West End residence section and completed six months ago, sprung a leak today at a point several hundred yards south of Bloomfield Street on the Louis Houck land." A representative of the contractor arrived here the next day to assess the situation and make repairs.
Mysteriously, two lengths of the sewer pipe had disappeared since being installed by Dunnegan. It was finally concluded that the pipe may have been swallowed up by "quicksand" or "removed, or destroyed by some outside source." At this point, it seems Dunnegan had had enough of Cape Girardeau, and in the end he didn't make the repairs the contract called for. Instead, they were made by city employees under the direction of City Commissioner Martin Krueger in September 1924.
In late December 1930, members of the Hunze family were again in Common Pleas Court. They brought suit against the City of Cape Girardeau for $10,000 damages, which "resulted to their property in the southern part of the city by reason of sanitary sewage from the West End district diverted into Cape La Croix Creek." The lawsuit noted a break in the sewer "had existed since the early part of 1929 and had been allowed to continue despite repeated attention called to it by the Hunze family."
Again acting as attorney for the Hunzes, A.M. Spradling "charged that the sewage was diverted into the creek when the sanitary line was broken. This sewage polluted the creek to the extent that the water was unfit for use, fish in the stream were killed, and the stench from the water during the period the condition existed was almost unbearable." The Hunzes, Spradling noted, were also "put to an inconvenience to secure another wholesome water supply for livestock."
After a three-day trial, a jury awarded the Hunze family $1,000 in damages.
Respond to this blog
Posting a comment requires a subscription.