author: SCHULTE, Justice. STEPHEN F. PRESLAR, Chief Justice,

text:
    NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Appellant, v. Jerry Dean JANES, Appellee.
    No. 08-84-00016-CV.
    Court of Appeals of Texas, El Paso.
    March 13, 1985.
    Rehearing Denied April 10, 1985.

      W. Bruce Williams, Julia E. Vaughan, Cotton, Bledsoe, Tighe & Dawson, Midland, for appellant.
    Robert E. White, Childs & Bishop Law Offices, Inc., Odessa, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

SCHULTE, Justice.

This is a workers’ compensation case appeal taken from a judgment based on a six member jury verdict in the Ector County Court at Law. The jury found a forty percent permanent partial loss of use of Appellee’s right leg. The event complained of occurred due to the breaking of a temporary compression plate on the leg, placed there following a prior injury. We reverse and remand.

Appellee, Jerry Dean Janes, was first injured in February, 1981, in Mattoon, Illinois, while demonstrating snowmobiles for his then employer, Mattoon Lawn & Leisure. As a result of the accident, Appellee sustained bilateral open tibial fractures, knee injuries and a broken right femur. The present case concerns the fractured right femur. The fractured right femur was treated by the placing of a metal compression plate on the femur at the fracture site, by a Dr. McKechnie, an Illinois orthopedic surgeon. After this surgery, Appel-lee went back to work for Mattoon Lawn and Leisure for several months. Appellee then moved to Odessa where he obtained employment with the Western Company as a truck mechanic. On December 3, 1981, while Appellee was climbing onto a truck, he felt a “thud” in his right leg and it buckled. The compression plate attached to his femur had broken. Appellee continued working for the rest of his shift, approximately four hours, even though he was not able to bear weight on his right leg.

The following Sunday, Appellee went to Midland Memorial Hospital, where x-rays were taken and his right leg was immobilized. A couple of days later, Appellee was seen by a Dr. Cochran, an orthopedic surgeon in Midland, who recommended that the old plate be surgically removed and a new compression plate be put in its place. A fibrous union had formed as part of Appellee’s femur as a result of Appellee’s Illinois injury. The medical testimony was to the effect that a fibrous union results when the soft tissue damage is so extensive at the fracture site that a good bone connection cannot form.

Appellee brought suit against the Western Company’s workers’ compensation insurance carrier. At trial, the Appellant unsuccessfully moved for an instructed verdict. The jury found forty percent permanent partial loss of use of the right leg. Prior to the court rendering judgment on the verdict, the Appellant moved for judgment non obstante veredicto. The trial court overruled the motion and the Appellant perfected this appeal.

Appellant’s first point of error concerns the overruling of Appellant’s motion for instructed verdict because there was no probative evidence on the issue of harm or damage to the physical structure of Appel-lee’s body. Appellant’s second point urges error in the overruling of Appellant's motion for judgment non obstante veredicto because there was no probative evidence of harm or damage to the physical structure of Appellee’s body to support a jury finding of injury. Finally Appellant’s third point asserts error in the entry of judgment for the Appellee because there was insufficient evidence on which to support a jury finding of injury and the finding is manifestly unjust.

Appellant’s first three points of error center on what constitutes injury under the workers’ compensation statute. The pertinent part of the controlling statute is contained in Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 20 (Vernon Supp.1985) which states in part, “[wjherever the terms ‘Injury’ or ‘Personal Injury’ are used in the Workmans’ Compensation Laws of this State, such terms shall be construed to mean damage or harm to the physical structure of the body.” It is also well settled by the case law that the above definition of injury also includes aggravation of a preexisting injury resulting from such harm or damage. See: Gulf Insurance Company v. Gibbs, 534 S.W.2d 720, 724 (Tex.Civ.App. — Houston [1st Dist.] 1976, writ ref’d n.r.e.)

The Texas Supreme Court in the case of Bailey v. American General Insurance Co., 154 Tex. 430, 279 S.W.2d 315, 318 (1955), stated:

The phrase “physical structure of the body”, as it is used in the statute, must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to the digestive system. It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual. To determine what is meant by “physical structure of the body”, the structure should be considered that of a living person — not as a static, inanimate thing.

The Appellee asserts that the question of whether or not he sustained injury to his body is exclusively within the province of the jury, citing Dealers National Insurance Company v. Simmons, 421 S.W.2d 669, 675 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n.r.e.). A more accurate reading of the case would reveal that it stands for the proposition that where there is sufficient evidence to warrant a finding of injury, then such a finding of sufficient evidence is exclusively within the province of the jury and the verdict will be upheld on appeal. Supra at 675.

Appellant’s first two points of error will be treated together. The standard of review on both “no evidence” points is the same. The Court of Appeals will view the evidence in a light most favorable to the finding of fact, considering only the evidence which supports the finding and disregarding any evidence to the contrary. Cartwright v. Canode, 106 Tex. 502, 507, 171 S.W. 696, 697 (1914). At the trial of the present case, three witnesses appeared — the Appellee, a Mrs. P. Martinez (a claims adjuster for American International Adjustment Co.), and Dr. Jerry Cochran. The testimony of the Appellee was that when the plate broke, he suffered great pain and swelling and he felt like he had suffered damage to his leg. The testimony was also that he had to “carry” his right leg by putting more weight on his left leg and his hands. Dr. Cochran testified, disregarding at this time any of his testimony to the contrary, that when the plate broke, it aggravated the prior condition of Appel-lee’s leg. While mere pain is not compen-sable under the workers’ compensation statute, Continental Casualty Company v. Cook, 507 S.W.2d 283, 285 (Tex.Civ.App. —Houston [14th Dist.] 1974) reversed other grounds, 515 S.W.2d 261 (Tex.1974), there is probative evidence of swelling as well as the statement by Dr. Cochran of aggravation of previous injury. Such evidence would support a jury finding of injury as defined in the statute. Appellant’s first two points of error are overruled.

Appellant’s third point of error is that the trial court erred in entering judgment for Appellee because the evidence was factually insufficient to support the jury finding of injury and such finding was manifestly unjust and against the great weight and preponderance of the evidence. In reviewing factual insufficiency points, the Court of Appeals will consider all of the evidence in the record that is relevant to the facts being challenged. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). A great weight point requires a consideration of all of the evidence, both that tending to prove the fact and that lending to disprove the fact. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 367 (1960); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

While there is enough evidence as to injury to survive the stiffer “no evidence” test, the record as a whole reveals that it is factually insufficient to support a jury finding of injury and such finding is against the great weight and preponderance of the evidence. Dr. Cochran did testify on cross-examination that the plate’s failure did aggravate the condition the leg was in already. On redirect examination by the defense (Appellant), Dr. Cochran said that he had not understood the full extent of Appellee’s questions as to aggravation of the previous injury. The doctor testified in pertinent part in this regard, “Mr. Jane’s condition was the same after the accident as it was before the accident, the only difference is the plate broke.” He further testified that the fibrous union in Appellee’s right leg continued to exist after the plate broke.

Appellee testified on cross-examination that he did not know the condition of his leg prior to the plate breaking, was unaware of the fibrous union and didn’t know of his own knowledge that there was any more problem with the physical part of his leg after the plate broke than before. He further testified that in the months before the plate broke he had been having a lot of trouble with the leg and after weight lifting he experienced swelling and soreness. He was asked in regard to the period before breaking, “[i]n fact everything you did caused soreness and swelling, didn’t it?” To which Appellee responded, “[y]es, Sir.” He further testified that prior to the plate breaking on December 3, 1981, he considered the soreness and swelling was just part of the process of healing of the older snowmobile accident and further that these conditions occurred whether he was weight lifting or with whatever else he was doing. It appears, therefore, that the condition of swelling was present prior to the breaking of the plate.

Short of any swelling, the only damage which could have taken place was the breaking of the compression plate. The question then becomes whether the plate breaking in and of itself constitutes damage or harm to Appellee’s physical structure. The Texas Supreme Court in Bailey v. American General Insurance Company, supra, defined injury in terms of tissues, bones and organs. A temporary plate as used on Appellee’s right femur does not fit into these categories. A temporary plate as was used in the present case does not become part of the bone. The breaking of a temporary plate would not be the breaking of the bone. Its identity is entirely separate from that of the bone.

The Texas courts have not ruled on whether artificial members are covered by the state’s workers’ compensation statute’s definition of injury. The general principle that a court will not in the absence of an expression of legislative intent construe the workers’ compensation laws to include injuries to artificial members was established in London Guaranty & Accident Co. v. Industrial Commission of Colorado, 80 Colo. 162, 249 P. 642 (1926). The best statement of this principle is contained in Hackett v. Almor Corporation, 46 A.D.2d 261, 362 N.Y.S.2d 209 (1974) where the New York Supreme Court Appellate Division declined to engage in a rewriting of the workers’ compensation legislation to include artificial members under the term injury absent an expression of legislative intent to include such. Some states do allow recovery for injuries to artificial members, but these states have a legislative mandate to do so. Without an expression of legislative intent, Texas courts should not allow recovery for injuries to artificial members. In that the plate here involved was meant only as a temporary repair aid, it falls into the same category as a brace or a cast and did not become a permanent integrated part of the body. The advancement of medical technology suggests that this is a proper subject of consideration for the legislature. Appellant’s Point of Error No. Three is sustained because the evidence was factually insufficient to sustain a jury verdict of injury.

Appellant’s Points of Error Nos. Four through Nine center on the causal relationship of the injury, if any, to the employment. These points of error contain both “no evidence” and “insufficient evidence” allegations. The “no evidence” points of error urge that the trial court erred in overruling Appellant’s motions for instructed verdict and for judgment non obstante veredicto and entering judgment for the Appellee because there was no evidence to support a jury finding of injury in the course of employment or that the employment was a producing cause of the loss of the use of Appellee’s leg. The “no evidence” points of error are overruled. The Appellee was injured while climbing on a truck in the course of his employment. If injury could be assumed, then the fact that he was climbing on the truck during the course of his employment when the plate broke would be enough to allow for a jury finding for the Appellee on the “no evidence” points. We need not respond to the factual insufficiency assertions in view of the remand.

The judgment of the trial court is reversed and the cause remanded for a new trial.

STEPHEN F. PRESLAR, Chief Justice,

dissenting.

I respectfully dissent, for I am unable to agree that the great weight and preponderance of the evidence is contrary to the jury’s finding of injury. It matters not how the cases may define injury, for the jury was given a definition to work by. It was: “ ‘INJURY’ means damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.”

There was evidence from the Appellee that he had swelling in the leg after the break; that is damage or harm to the physical structure of his leg, not the plate. Dr. Cochran testified:

Q: Okay. From a medical viewpoint, was there a new and distinct injury on December 4, 1981 when he stepped up on this truck or was this a complication of a pre-existing injury arising out of the snowmobile accident?
A: I would have to say it was probably coming from the snowmobile accident, the residual of it. Let’s say the snowmobile incident initiated the problem and the acts of walking up the truck precipitated the current problem.

The doctor also testified that when the plate broke, it aggravated whatever condition the Appellee’s leg was in the moment before it broke. As noted, he later said that he did not understand the extent of the question. These are the only witnesses on the injury subject and the evidence of injury is meager, but it is sufficient to sustain the jury finding. The important thing is that there is no great preponderance of evidence to the contrary. I would affirm.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    BERTSCH & COMPANY, INC., Appellant, v. Horace SPELLS, Appellee.
    No. 11-84-228-CV.
    Court of Appeals of Texas, Eastland.
    March 21, 1985.
    Rehearing Denied April 11, 1985.

      Charles M. Barnard, Oldham & Barnard, Wichita Falls, for appellant.
    Larry Lambert, Wilson, Lambert & Quick, Wichita Falls, for appellee.
   McCLOUD, Chief Justice.

This is an appeal by writ of error from a default judgment. Horace Spells sued Bertsch & Company, Inc. for personal injuries plaintiff sustained because of the allegedly defective product manufactured, designed and sold by defendant. Defendant was served with citation pursuant to TEX. REV.CIV.STAT.ANN. art. 2031b (Vernon Supp.1985), but failed to file an answer. On March 12, 1984, the district court rendered judgment against the defendant in the sum of $612,946.00. On the same date, the trial court signed a “Statement of Evidence” which was prepared in narrative form. The court’s certificate states that the “foregoing two pages of typewritten material contains and comprises a full, true, and correct statement of all the material facts proved at the trial of the cause.” No representative of the defendant was present at the default judgment hearing.

Defendant argues that the judgment should be reversed and the cause remanded for trial because the official court reporter made no record of the proceedings.

The record establishes that a court reporter was not present at the default judgment hearing. Therefore, the court reporter could not provide the defendant with a statement of facts in question and answer form as requested by the defendant.

It is generally stated that if an appellant exercises due- diligence, and through no fault of his own, is unable to obtain a proper record of the evidence, a new trial is required to preserve his right of review. Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978); Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App. — Dallas 1975, writ ref’d).

We agree with the recent case of Houston Pipe Coating Company, Inc. v. Houston Freightways, Inc., 679 S.W.2d 42 (Tex.App. — Houston [14th Dist.] 1984, writ ref d n.r.e.), which held that an appellant was not required to rely upon the testimony offered at the hearing as “certified by the trial court.” In Watson v. Sheppard Federal Credit Union, 589 S.W.2d 742 (Tex.Civ.App. — Fort Worth 1979, writ ref’d n.r.e.), a default judgment case, the appellee was contending that the “Statement of Evidence” signed by the trial judge and made a part of the transcript should serve as a proper statement of facts. The court rejected that argument and held that an appealing party is entitled to a statement of facts in question and answer form. A trial court’s narrative rendition of the evidence in a default judgment case was held to be insufficient in Fisher v. First Security State Bank of Cranfills Gap, Texas, 576 S.W.2d 886 (Tex.Civ.App. — Waco 1979, no writ). There, the court stated:

We need a question and answer statement of facts as reproduced verbatim from the spoken word of both counsel and the witnesses, unblemished by human interpretation.

We agree with the above discussed cases, and we hold that the “Statement of Evidence” in the instant case did not constitute a proper record of the evidence.

We reverse and remand only as to the amount of damages. The default judgment rendered in favor of plaintiff against the defendant operates as an admission of the defendant’s liability except as to unliq-uidated damages. Mo-Vac Service, Inc. v. Marine Contractors & Supply, Inc., 586 S.W.2d 573 (Tex.Civ.App. — Corpus Christi 1979, writ ref’d n.r.e.). The failure to provide a proper statement of facts affects only the issue of the unliquidated damages. TEX.R.CIV.P. 434 provides:

[A]nd if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested. (Emphasis added)

The liability issues were uncontested at the time of the default judgment. No answer had been filed by defendant. Therefore, the emphasized language in Rule 434 does not prevent a separate trial on “unliquidated damages.” Mo-Vac Service, Inc. v. Marine Contractors & Supply, Inc., supra; Watson v. Sheppard Federal Credit Union, supra; Justice Life Insurance Company v. Walker, 508 S.W.2d 434 (Tex.Civ.App. — Fort Worth 1974, writ ref'd n.r.e.).

In Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App. — Eastland 1975, writ ref’d n.r.e.), this Court, in a default judgment case where the court reporter failed to record the testimony, held that the issue of liability as well as the “liquidated damages” would be affirmed, and reversed and remanded only the issue of the amount of “the unliquidated” attorney’s fees. See TEX.R.CIV.P. 239 and 243.

The court in Houston Pipe Coating Company, Inc. v. Houston Freightways, Inc., supra, affirmed the default judgment as to liability, and reversed and remanded for a new trial only as to the issue of damages.

The judgment of the trial court is affirmed as to the issue of defendant’s liability. The judgment is reversed, and the cause is remanded for a new trial on the issue of damages.


author: REYNOLDS, Judge.

text:
    Trula M. EGNEW, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Covington Haus, Appellees.
    Court of Appeals of Kentucky.
    Aug. 24, 1984.
    Richard A. Cullison, Northern Kentucky Legal Aid Society, Inc., Covington, for appellant.
    Hughes Walker, Gen. Counsel, William K. Moore, Cabinet for Human Resources, Office of the Counsel, Frankfort, for appel-lee Kentucky Unemployment Insurance Commission.
    Before COMBS, COOPER and REYNOLDS, JJ.
   REYNOLDS, Judge.

This appeal is from a judgment of the Kenton Circuit Court which affirmed the Kentucky Unemployment Insurance Commission’s denial of the appellant’s claim for unemployment benefits.

The appellant, Trula Egnew, was employed by appellee Covington Haus for nine months as supervisor in charge of the dining room. During the course of her employment, Ms. Egnew missed a great deal of work because of her alcohol problem. She was permitted to return to work after her absences during February, March and April, 1981. Ms. Egnew appeared but was unable to work on June 24, 1981, and had to be taken home by other employees since she was unable to walk on her own. She did not return to work after that, although the evidence indicates that she was in contact with her employer. Ms. Egnew informed her employer on more than one occasion that she would be of no use in her condition, and when Ms. Egnew did not report back to work by July 7, 1981, she was terminated from the employment records.

Ms. Egnew’s first claim for unemployment insurance was denied on the grounds that she had been discharged for misconduct. An appeal was taken from this determination, and the referee set aside this determination, finding that she was not discharged for misconduct, since “alcoholism must be treated as a disease.”

Covington Haus then appealed the referee’s decision to the Commission. The Commission adopted the referee’s findings of fact, but also found:

The claimant had missed work on numerous occasions. Some absences were for compelling reasons. Others were caused by the alcoholism problem. She had been allowed to return to work on two to four occasions when off work for extended periods for that problem.
The last absence commenced on June 24, 1981. On July 11, she was hospitalized for about five days. After release and a few days of recuperation, she learned that the employer would not permit her to return to work. During the absence, she was in contact with the employer and expressed that she was of no use to the restaurant in her condition.

The Commission then stated that Ms. Egnew had voluntarily quit her employment, stating:

The nature of a separation from employment is determined by examining how the separation actually occurred and which party caused the separation to take place. If the worker initiates the separation it is a quitting; if the employer does so it is a discharge. In this case the evidence clearly shows that the claimant’s actions caused her to become unemployed. Although this Commission fully acknowledges that alcoholism is a disease, we cannot accept it as an excuse to totally relieve anyone of the responsibility for their actions. Therefore, claimant quit her job and without good cause attributable to her employment.

Ms. Egnew appealed this decision, and the Kenton Circuit Court affirmed the Commission.

Appellant Egnew urges that this court should reinstitute the referee’s order because “a discharge for absenteeism due to alcoholism is not for misconduct,” and that the Commission’s finding of a voluntary quitting of employment is not supported by substantial evidence. Appellant argues the Commission “switched issues” while the case was on appeal, depriving Ms. Egnew of due process of law.

We address the issue of whether the Commission’s findings of fact were supported by substantial evidence and determine from the record that Ms. Egnew was frequently absent from work and, during her last absence, told her employer that she was of no use to the restaurant in her condition. We agree that the Commission’s finding that her actions initiated the separation from employment were supported by the evidence. These findings of fact may not be disturbed unless the evidence is so persuasive that one would have no choice but to find for the claimant. Kentucky Unemployment Ins. Commission v. Murphy, Ky., 539 S.W.2d 293 (1976). Both Covington Haus’ owner and Ms. Egnew testified that her separation from employment came only after she had failed to appear at work for a considerable length of time. We believe the Commission correctly found that Ms. Egnew’s continued absence from her work without the employer’s consent constituted a voluntary abandonment of employment.

Further, we do not believe that alcoholism precludes a finding of misconduct or of voluntarily quitting one’s employment. Appellant, in arguing that Ms. Egnew’s disease of alcoholism necessitates a reversal of the Commission’s findings, cites the case of Moeller v. Minnesota Dept. of Transp., 281 N.W.2d 879 (Minn.1979), for the proposition that an alcoholic should not be held strictly accountable for his actions. This blanket statement does not accurately reflect the holding in Moel-ler. The Minnesota court, in holding that Moeller was entitled to unemployment benefits, was construing a statute which required a claimant to have made “reasonable efforts” to retain his employment. This case is therefore distinguishable to the situation currently at bar.

Our Kentucky statute is more similar to the Florida one cited in Okaloosa Guidance Clinic, Inc. v. Davis, 384 So.2d 1336 (Fla.App.1980), in which it was stated:

... Davis was terminated for misconduct, which included failure to report to work as ordered, removal of himself from an employer-provided opportunity to be treated, by the employer, coming onto the employer’s premises in an intoxicated condition, and absence from his duties, all of which placed a burden on the employer to perform its function with a reduced staff. Davis’ actions constituted a misconduct as defined by § 443.-06(9)(a).... Id. at 1336.

The Kentucky General Assembly has also pointed out in KRS 341.370(6), that:

“Discharge for misconduct” as used in this section shall include but not be limited to separation initiated by the employer for ... reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer’s premises during work hours....

Thus, we cannot say that the fact that an employee is an alcoholic precludes either the finding of a voluntary quitting or of misconduct. On the contrary, the use of alcohol affecting one’s ability to work, such as appearing at work inebriated, would seem to disqualify the claimant from unemployment benefits.

Finally, appellant argues that she was deprived of due process of law because the Commission did not confine itself to the issue of whether her conduct constituted misconduct, and considered other potential disqualifications from benefits. We do not agree. The basic issue, in basic terms, was whether an employment separation results in an entitlement to unemployment benefits when the separation is caused/brought about by excessive absenteeism due to alcoholism. We determine that appellant had a full/fair opportunity to state her position and receive a full hearing. Appellant accepted the findings of fact made by both the referee and the Commission but the disagreement stems from the Commission’s eventual conclusion of law. We find no error.

The judgment of Kenton Circuit Court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Betty Jean FRANCIS, Individually and as Administratrix of the Estate of Frinnie Glen Justice, and Ralph Francis, Jr., Her Husband, Appellants, v. Grover JUSTICE and Mary Jo Justice, His Wife, Appellees.
    No. 84-CA-1535-MR.
    Court of Appeals of Kentucky.
    April 12, 1985.

      Michael de Bourbon Pikeville, Ky., for appellants.
    Lawrence R. Webster, Webster & Clark, Pikeville, Ky., for appellees.
    Before HOWERTON, McDONALD and WHITE, JJ.
   HOWERTON, Judge.

Betty Jean Francis appeals from a judgment of the Pike Circuit Court denying her a dower interest in real property owned by her deceased husband, Frinnie Glen Justice. She argues that the trial court erred in holding that KRS 391.020, also known as the “Ancestral Property Statute,” supersedes KRS 392.020, the dower statute. We agree with her argument and reverse the judgment.

In 1969, Grover and Mary Jo Justice gave a tract of real estate to their son, Frinnie Glen Justice. Frinnie married Betty Jean on August 4, 1970. Frinnie died without issue on April 21, 1979, but was survived by his widow, Betty Jean Justice, now Betty Jean Francis. Betty Jean qualified as his administratrix and has continued to act as such since her appointment.

The Justices filed this action pursuant to KRS 391.020(1) seeking to recover the real property they had given their son and to have the estate settled. In the alternative, they alleged that the property was indivisible and requested that it be sold and the proceeds appropriately divided. Only the bare bone facts were stipulated. In addition to the facts previously mentioned, we know that Frinnie Glen Justice possessed enough personal property to pay his debts. The lot in question was surplus. We do not know if he owned any other real property or if Betty Jean had in any way contributed to improving the value of the real estate in question. We are not presented with any issue which might be affected by either fact, however.

KRS 391.020(1) reads:

When a person dies intestate and without issue, owning real estate of inheritance which is the gift of either of his parents, the parent who made the gift, if living, shall inherit the whole of such estate.

The facts in this case fall squarely within every requirement of that statute. The problem is that Frinnie was married at the time of his death, and KRS 392.020 reads in part as follows:

After the death of the husband or wife intestate, the survivor shall have an estate in fee of one-half (½) of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death_ Unless the context otherwise requires, any reference in the statutes of this state to “dower” or “curtesy” shall be deemed to refer to the surviving spouse's interest created by this section.

Although there are some Kentucky decisions to draw on for guidance, we find none that have specifically resolved the conflict between the two statutes, as is created in this factual situation.

KRS 391.020(2) is another “ancestral property statute.” It reads in part:

If a person under the age of eighteen (18) dies without issue, having the title to real estate derived by gift, devise or descent from one (1) of his parents, the whole shall descend to that parent and that parent’s kindred, and if there is none, then in like manner to the other parent and his kindred....

This statute pertains to property of infants who die without issue. They can acquire the property by gift or inheritance, and it is not necessary that the parent survive. If the parent from whom the property was received does not survive, it goes to that parent’s kindred, whether it be children, parents, or brothers and sisters — which would be brothers and sisters, grandparents, or aunts and uncles of the deceased child.

The ancestral property statutes have been in Kentucky law in some form since 1796. Duncan v. Lafferty’s Adm’r, 29 Ky. (6 J.J. Marsh.) 46, (1831). The policy reason for the statutes was to prevent the estate of a parent from being distributed to strangers to his blood when any of his children died without issue. Lanferman v. Vanzile, 150 Ky. 751, 150 S.W. 1008 (1912). Although Lanferman dealt with the precursor of KRS 391.020(2), the same policy provides the basis for the statute now identified as KRS 391.020(1). Lanferman dealt with an unmarried infant.

Lanferman, supra, indicates that the ancestral property law overrides or limits the laws relating to descent and distribution. In Lanferman, we read at 753:

The statute regulating the descent of real estate is section 1393, Ky. Statutes, which provides that when a person shall die intestate his real estate shall descend “first to his children and their descendants;” but section 1401, [now KRS 391.-020(1) ] which is a part of the same chapter, and is one of the limitations upon section 1393 [now KRS 391.010], is as follows: [Here is quoted the text of what is now KRS 391.020(2).]

No case has yet held, however, that KRS 391.020(1) or (2) supersedes, limits, or overrides the “dower” provisions in KRS 392.-020.

To the contrary, two cases dealing with the infant statute, KRS 391.020(2), have held or indicated that dower rights are not eliminated or affected by the ancestral property provisions. In Lamar v. Crosby, 162 Ky. 320, 172 S.W. 693 (1915), a father willed real property to his two sons and one daughter. The daughter married but died intestate as an infant. Her mother, the testator’s widow, filed the action to recover the one-third undivided interest, but the court held that the property descended to the daughter’s brothers, subject to the curtesy interest in the husband. Lamar reads, at 162 Ky. 323, 172 S.W. 693:

And, by section 1401, Kentucky Statutes, her undivided one-third interest, which she acquired by devise under her father’s will, descended to her brothers, subject only to the statutory life estate of her surviving husband in one-third of her interest.

Prior to 1956, dower and curtesy provided a surviving spouse with a one-third interest for life, rather than a one-half interest in fee.

The case of McCoy v. Ferguson, 249 Ky. 334, 60 S.W.2d 931 (1933), involved several issues, but the decision did depend in part upon the infant statute, and it indicated that the infant’s widow was entitled to dower.

We see no basic difference in the purpose of KRS 391.020(1) and KRS 391.-020(2), and we find nothing in the law or logic which mandates that the ancestral property statutes bar a surviving spouse of dower or curtesy. The statutes ignore the condition of a married child, adult or infant. We conclude that Lamar, supra, and McCoy, supra, are dispositive of the issue.

The judgment of the Pike Circuit Court holding that Betty Jean Francis has no dower interest in the real property given to Frinnie Glen Justice by his parents is reversed. This case is remanded for consideration of the alternative relief requested in the complaint.

All concur.


text:
    FUTURE FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. David Michael DAUNHAUER, Alphonse Elrod, Willis H. Tassie, Christine Ballmann, Laura Speckman, Mary Miller, Mary R. Stephenson (a/k/a Buechter), Maxwell Allen, Louise Bohannan, Catherine Crabtree, Virginia Keyer, Aileen Brown, Aileen Goode, Louise Louis Waller, Mr. and Mrs. Hoffa, Thomas Pfersching, John Sargent, Mr. and Mrs. Mahoney, Laudia Dame, Gary McKim, Thelma Williamson, Thierman Apartments, and Liberty National Bank and Trust Company of Louisville, Appellees.
    Court of Appeals of Kentucky.
    April 12, 1985.

      Claude L. Nutt, Nutt & Yann, Louisville, for appellant.
    Bruce Hadley, Jefferson K. Steepey, Louisville, for appellees.
    Henry K. Jarfett, III, Hanish, Davenport, Rosenberg & Weiner, Louisville, for appellee, Thierman Apartments.
    John S. Osborn, Jr., Richard W. Iler, Wyatt, Tarrant & Combs, Louisville, for amicus curiae, Commonwealth Land Title Insur. Co.
    Before DUNN, HOWARD and HOWER-TON, JJ.
   HOWERTON, Judge.

Future Federal appeals from a judgment of the Jefferson Circuit Court dismissing its foreclosure action against David Michael Daunhauer and holding that it had an unenforceable mortgage lien. The primary question to be answered is whether Daun-hauer had acquired by deed a freely alienable and mortgageable undivided interest in real property developed as a noncorporate cooperative apartment complex. We conclude that he did and, although the mortgage instrument was not the most artfully drafted legal document, it does constitute an enforceable lien against his apartment unit and his undivided Vka interest in the apartment complex. We reverse the judgment and remand this case for further disposition.

This action was originally brought by “Thierman Apartments, an Unincorporated Association by and through its President, Mary R. Stephenson” against Daunhauer, other apartment owners, and various entities having claims against Daunhauer, including Future Federal. The action was to recover maintenance charges owed by Mr. Daunhauer. Future Federal filed its answer and a cross-claim to enforce its mortgage. Daunhauer did not contest the litigation and became bankrupt, thereby discharging any personal judgment the apartment group might obtain against him. If Future Federal held a valid mortgage, however, it could recover to the extent of the value of the property.

The opinion of the trial court reads in part:

[T]he occupants of the cooperative piece of real estate do not acquire an interest in the real estate; they acquire a “stock” interest or a share of the income generated by the real estate; that the plaintiff in this case is actually an association organized for the purpose of managing the real estate in question. The members of that association are given the exclusive right to the occupancy of a unit and use of a portion of that real estate, but do not acquire title thereto. Their interest is a share of the whole which is not divided and is represented by shares of stock.

The circuit court later amended its judgment, stating:

The Court, in using the term “stock” in that Opinion, did not believe that securities as such were issued. Rather, that indications to residents sharing common expenses through a voluntary association of which they were members, but their rights were not to a fee which could be separated from the whole, but only the right to an exclusive use of such portion as was designated as their unit or apartment with the sharing of common areas.

The court then reaffirmed its original opinion.

On June 1, 1948, W. Roy Clark and his wife, Norma, began dividing their 24-unit apartment building into 24 separate undivided interests and established restrictive covenants as to the use and occupancy of the building. The rights and liabilities, or benefits and burdens, for the various interest holders were established in a contract and agreement between the Clarks and the buyer of the first unit, Martha Meister. The document was recorded with the Jefferson County real property records. The contract provided for separate conveyances to Martha Meister and other unit owners of ½4⅛ undivided interests in the apartment building and the exclusive use and occupancy of a particular apartment unit. It further provided that unit owners would have rights in common with other owners to the use of common areas, that a manager would be appointed, that each owner would pay a monthly sum to maintain the common areas and insurance on the property and to pay various common expenses, and that:

It is understood and agreed that the individual owners of interests in said property have the right to sell or lease their individual undivided interests under the same restrictions, conditions and provisions as to use and occupancy as set out in this contract, and any subsequent conveyance or lease of any interest in said property shall be subject to the terms and provisions of this contract.

Daunhauer’s apartment unit was D-l. It was originally conveyed by the Clarks to Cleo M. Schuler and thereafter by various deeds and conveyances to other parties until it was acquired by Daunhauer by deed dated June 22, 1982. The deed provided for the conveyance of an undivided Vajth interest in the entire apartment property and the exclusive use and occupancy of apartment D-l in the building. The deed also carried forward the covenants and restrictions imposed by the original contract and agreement. In order to finance the purchase of the apartment and Vatth interest, Mr. Daunhauer executed a note and mortgage to Future Federal (or its predecessor) contemporaneously with receiving the deed.

The question presented is one of first impression in the Commonwealth of Kentucky. We hold that the various owners of the undivided interests in the Thier-man Apartments are tenants-in-common. As such, each owner has a fractional share of the entire premises as a tenant-in-common with the other owners. Each owner has individual exclusive occupancy rights to a specific apartment. The undivided interest of a tenant-in-common is freely de-visable, descendible, and alienable.

Clearly, Thierman Apartments, an unincorporated association, could not hold title to the real property in the absence of some statute providing for such title. The association is not a legal entity. Business Realty, Inc. v. Noah’s Dove Lodge #20, Ky., 375 S.W.2d 389 (1963). See also 6 Am.Jur.2d Associations and Clubs, § 13 (1963), and 15 A.L.R.2d 1451 (1951). Furthermore, the apartment unit owners could not be pure joint tenants, because the conveyances were all made separately, and there is no document which expresses an intention that such a tenancy is intended. Stambaugh v. Stambaugh, 288 Ky. 491, 156 S.W.2d 827 (1941).

The most reasonable and realistic form of title for this arrangement is a tenancy-in-common. As stated in 2 American Law of Property, § 6.10, at 46 (19 ): “The tenant-in-common has a separate, undivided interest. That interest is descendible, and may be conveyed by deed or by will.” Saulsberry v. Maddix, 125 F.2d 430 (6th Cir.1942), cert. den., 317 U.S. 643, 63 S.Ct. 36, 87 L.Ed. 518, applying Kentucky law, is in accord.

Operation by an unincorporated association and title as tenants-in-common may not be the most desirable and advantageous way to own and operate an apartment building, but it is workable. In 2 Rohan and Reskin, Cooperative Housing Law and Practice, § 2.01[2][b], pp. 2-3 (1983), we read:

The tenancy-in-common form of coownership is a feasible but not extensively used method of organizing cooperative apartments. Under this plan, the occupants own the entire premises as tenants in common. In addition, each has individual exclusive occupancy rights to a specific apartment. Provisions in the nature of covenants running with the land, frequently incorporated into an instrument called a declaration of restrictions, are necessary to provide a means for the enforcement of each co-tenant’s financial obligations in the maintenance and operation of the building. The undivided interest of a tenant in common is freely devisable, descendible, and alienable.

The deeds and the contract and agreement provide all that is necessary to establish a tenancy-in-common, and each undivided interest may be sold or mortgaged. The covenants and restrictions contained in the original agreement are binding on the parties to the contract and all subsequent purchasers of interest in the apartments. Bishop v. Rueff, Ky.App., 619 S.W.2d 718 (1981).

The deed to Daunhauer conveyed with covenant of general warranty an undivided V24th interest in property which described the entire tract of land on which the apartment is located. It listed the grantor’s source of title and provided that the conveyance was subject to any easements and restrictions concerning the property or its use including those recorded in the 1948 contract and agreement. The deed also provided that Daunhauer was granted the exclusive use and occupancy of apartment D-l. The mortgage contained the same description which included the entire property but, when it is read together with the cooperative apartment rider attached to it, it is clear that the intent was to mortgage only the ½4⅛ undivided interest and the exclusive right to apartment D-l. Indeed, an attempt to mortgage anything greater than that would have been invalid, at least to the extent of the excess. We, therefore, conclude that the mortgage is valid and enforceable and that a foreclosure sale may be conducted to the extent of Daunhauer’s ownership.

The judgment of the Jefferson Circuit Court is reversed, and this case is remanded for further proceedings.

All concur.


author: PER CURIAM.

text:
    STATE ex inf. John ASHCROFT, ex rel. PLAZA PROPERTIES, INC., Appellants, v. CITY OF KANSAS CITY and Tax Increment Financing Commission of Kansas City, et al., Respondents.
    No. 66560.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.
    John Ashcroft, Atty. Gen., Phillip K. Ge-bhardt, Asst. Atty. Gen., Jefferson City, William V. McLeese, Kansas City, for appellants.
    Paul E. Vardeman, Michael T. White, Mark J. Bredemeier, Richard N. Ward, City Atty., John F. Ingraham, Asst. City Atty., Kansas City, for respondents.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of Cole County denying a petition in the nature of quo warranto brought in the name of the State of Missouri and the name of the Attorney General at the relation of Plaza Properties, Inc., as relators against the City of Kansas City and its Tax Increment Financing Commission (hereinafter Commission). It involves a plan for the redevelopment of a small tract (lot 56, Wornall Park) adjacent to the Country Club Plaza. The ultimate purpose of the proceeding is to validate bonds proposed to be issued by respondent City and Commission pursuant to the Real Property Tax Increment Allocation Redevelopment Act, §§ 99.800-99.865, RSMo Cum.Supp. 1984. The only unique feature of this case is the active participation of the Attorney General in the proceeding, it being customary that the Attorney General permit the moving party, the relator, to prosecute the action “to final conclusion in the name of the relator.” Rule 98.02(c). Clearly, this is not an action originated by the Attorney General filing in his own name and whether or not the preliminary order shall issue is discretionary with the court. Rule 98.04.

In State ex rel. Wagner v. St. Louis County Port Authority, 604 S.W.2d 592, 607 (Mo.banc 1980) it was noted that “the time has come for us to reexamine the practice of entertaining friendly quo war-ranto proceedings where the bond issuing authority is the real party in interest ...” (Welliver, J., dissenting, Rendlen, J. concurring).

The petition for quo warranto herein is identical to the petition for quo warranto filed in this Court by the same parties on June 7, 1984, No. 66070. In our discretion we denied that petition on July 17, 1984. The only difference in what we now have before us is that the same matter has been filed in the Circuit Court of Cole County where that court “denied the writ” without benefit of findings of fact or conclusions of law. This Court is now faced with the identical request which it denied July 17, 1984, with the burden of review being no different and no lighter than when it was first tendered.

While it may have been good judicial practice during the early days of our government for this Court to lend assistance to the legislative and executive branches in the form of giving advisory opinions on proposed bond issues, we now believe that there is sufficient case law from which the issuers of bonds can formulate opinions as to their validity. In the future, pre-issue bond validity will be considered by the courts only upon a substantial showing of inability to issue and sell such bonds. We believe that such consideration should then be by the circuit court within the jurisdiction where the question arises. We believe that the ends of justice will be served best when those most interested in the project have the most convenient and best opportunity for being heard on the matter. In this same connection, we believe that the public could better identify the issues being litigated if the matter is framed as a declaratory judgment action rather than the fictional friendly quo war-ranto. The declaratory judgment action should clearly identify its purpose as being consideration of the constitutional validity of the bonds proposed to be issued and should be brought by the real parties in interest.

The appellants’ brief presents 22 points as a basis for claiming that the statutes in question are unconstitutional. The trial court simply entered an order denying the petition quo warranto. The burden is on the appealing parties to demonstrate error. On the record before us we are not persuaded that the statutes are facially unconstitutional or that the trial court erred in dismissing the petition. We do not foreclose the possibility of further challenges based on varying facts of particular cases.

The judgment is affirmed.

All concur.


author: BILLINGS, Judge. BLACKMAR, Judge, WELLIVER, Judge,

text:
    Andrew FRANK, et al., Respondents, v. ENVIRONMENTAL SANITATION MANAGEMENT, INC., Appellant.
    No. 66244.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.

      Thomas H. Rost, Charles R. Miller, Jefferson City, for appellant.
    F. Joe DeLong, III, Jefferson City, John E. Turner, Kansas City, for respondents.
   BILLINGS, Judge.

Plaintiff landowners sued Environmental Sanitation Management, Inc., [ESM], owner of a landfill, and the individuals owning ESM, for damages by reason of ESM’s maintenance of a permanent nuisance. A jury awarded plaintiffs actual damages against ESM and the court of appeals affirmed. We granted transfer to reexamine existing law and review the case as an original appeal. Mo. Const, art. V, § 10, 1945. We affirm.

ESM opened the landfill in 1973 and operated it until 1979. The landfill was located near Jefferson City and on land that had previously been used for farming. Although the land was not of the proper amount or type of soil to insure leachate would not escape into the groundwater, it was assumed leachate could be contained by proper management.

A creek runs along a part of the landfill and across lands of plaintiffs. Plaintiff used their lands to farm, raise beef cattle, and maintain dairy herds. The water in the creek had been used by plaintiffs in their various farming operations since the 1960’s.

ESM deposited all types and kinds of household, commercial and industrial garbage and waste in the landfill, including paint thinner, chemicals, fingernail polish and remover, hand cream, perfume, sewage sludge, oil and dead animals. As waste was deposited in an area of the landfill, it would be compacted and a layer of soil spread over it. This regular procedure was followed until the particular area was full. Then a final layer of soil was applied and the area seeded.

Rainwater and surface water can infiltrate the compacted layers, or “cells”, of the landfill. Such water picks up contamination from the organic and chemical wastes. The contaminated water moves both down and laterally and can invade underground and surface sources of fresh water — such as the creek. The contaminated water, together with the residue it carries, is called leachate — described as polluted, discolored, foul-smelling scum.

In 1974 there was a small outbreak of leachate at the landfill but it was quickly brought under control. However, beginning in 1977 substantial amounts of leac-hate from the landfill ended up in the creek. The creek was still polluted with leachate at time of trial in November, 1982. Prior to 1977 the creek water was clean and pure and free of pollution. Plaintiffs were able to use it in their farm operations, including the watering of their livestock. After 1977 the leachate polluted the stream to the extent that the water was dirty and discolored; the creek and adjoining areas had the odor of decaying organic material described as smelling like rotten eggs or hog manure. Aquatic life in the creek died. Because the leachate polluted the creek water with certain chemicals considered harmful to humans and animals, plaintiffs prevented their livestock from drinking the water. Additionally, there was expert testimony that the continued leachate contamination of the creek had permanently reduced the value of plaintiffs’ lands.

Defendant contends the verdict directing nuisance instruction was improper because the pleadings and evidence did not show that an intentional act caused the leachate to escape. The trial court used MAI 22.06 as the nuisance verdict director for all plaintiffs:

Your verdict must be for plaintiffs and against defendant Environmental Sanitation Management, Inc., if you believe: First, plaintiffs used their property as a farm, and
Second, defendant Environmental Sanitation Management, Inc. operated a landfill upstream to plaintiffs’ farm, and

We recognize there is a conflict between the instruction and its notes on use. The notes on use say the instruction has limited application as explained in the Committee’s Comment. The comment cites as authority the Restatement (Second) of Torts § 822 (1965) which requires a focus on a defendant’s conduct. The instruction makes no mention of defendant’s conduct. Defendant relies upon the Restatement view. We hold the Restatement does not accurately reflect Missouri’s nuisance law and the trial court, properly instructed the jury.

Nuisance is the unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to peacefully enjoy his property. Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo.1943). The focus is defendant’s unreasonable interference with the use and enjoyment of plaintiff’s land. Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787, 791 (Mo.App.1980). Nuisance is an effect rather than a cause of tort liability and conduct antecedent to the interference may be irrelevant. Id. Nuisance is a condition and does not depend on the degree of care used; it depends on the degree of danger existing with the best of care. White v. Smith, 440 S.W.2d 497 (Mo.App.1969). The law of nuisance recognizes two conflicting rights: property owners have a right to control their land and use it to benefit their best interests; the public and neighboring land owners have a right to prevent unreasonable use that substantially impairs the peaceful use and enjoyment of other land. Clinic & Hospital, Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384 (1951). The unreasonable use element of nuisance balances the rights of adjoining property owners. Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983).

The crux of a nuisance case is unreasonable land use. The broad categories within which previous cases fit illustrate ways to prove unreasonable land use; they are not exclusive. It may be beneficial for plaintiffs to attempt to plead their cases into recognized categories but the law of nuisance, which is based on a balancing of interests, must remain uniquely receptive to new ways of demonstrating unreasonable use.

The easiest way to show a nuisance is to prove defendant’s conduct is unreasonable as a matter of law. This category may be called nuisance per se. In Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119 (1940), a funeral home in a purely residential neighborhood was held to be a nuisance. The unreasonable use element was assumed and an injunction issued. There was no allegation of improper conduct. The court cited previous authority rather than the facts of the case to demonstrate the injury funeral homes impose on residential neighborhoods. Operation of a landfill in a rural area is not a nuisance per se.

A nuisance may be found as a factual matter independent of prior cases and conduct. In Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo.1943), the Court noted:

There is no exact rule or formula by which the existence of a nuisance or the nonexistence of a nuisance may be determined. ‘Necessarily each case must stand upon its own special circumstances, and no definite rule can be given that is applicable in all cases, but when an appreciable interference with the ordinary enjoyment of property, physically, is clearly made out as the result of a nuisance, a court of equity will never refuse to interfere,_’ Wood, Nuisances, § 801

Id. at 805. In Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728 (1948), plaintiffs were injured because of fumes and mists that eminated from defendant’s plant. Although the court held for defendants on a negligence issue it emphasized that it could sustain an award if nuisance was its basis. As a factual matter defendant’s use of land was unreasonable. In Fuchs v. Curran Carbonizing and Engineering Co., 279 S.W.2d 211 (Mo.App.1955), a tavern owner sued for injuries sustained because defendant’s plant emitted air pollution. A submissible case of nuisance was established on three facts. First, emissions of fumes from defendant’s plant invaded plaintiff's premises. Second, the emissions injured plaintiff. Third, proper circumstances were shown — probably unreasonable use. In Clark v. City of Springfield, 241 S.W.2d 100 (Mo.App.1951), plaintiff proved defendant operated a sewer with a drainage system near his property. When too much water accumulated the drainage system would flood and deposit garbage and manure on plaintiff’s land. This was a nuisance whether the action was done intentionally or negligently. In Greene v. Spinning, 48 S.W.2d 51 (Mo.App.1931), the fact that cars pulling into defendant’s filling station cast bright lights into plaintiff’s house created an actionable nuisance. Finally, in Haynor v. Excelsior Springs Light, Power, Heat & Water Co., 129 Mo.App. 691, 108 S.W. 580 (1908), the court held defendant liable in nuisance because it operated a gas manufacturing plant that polluted nearby water and a well. Plaintiff’s action arose because defendant used the water course as a sewer, plaintiff sustained injury to her property, and there was a causal connection between the two facts. In the instant case, the verdict director required a finding of unreasonable use. That was sufficient. The jury had sufficient evidence to conclude ESM’s use of its land in a manner that created leachate was unreasonable.

Nuisance may also rest upon a continuing known invasion. Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. banc 1974), involved consolidated nuisance suits for damages resulting from the flooding of plaintiffs’ property. Construction on defendant’s property diverted water and caused floods and the evidence was ample to show a continuing intentional nuisance after the first flooding because numerous complaints were made, and in light of the early and numerous complaints, defendant failed and refused to remedy the situation. Similarly, in Vaughn v. Missouri Power & Light Co., 89 S.W.2d 699 (Mo.App.1935) plaintiffs sued for damages resulting from defendant’s operation of a spray pond. Wind carried spouts of water and chemicals which damaged plaintiffs’ land. Defendant continued to run the pond after being told of its effects. This was a nuisance. In the instant case the jury had sufficient evidence to conclude defendant continued to operate the landfill after it knew of the leachate problem, even though leachate indicated the landfill contained its capacity.

An intentional act may constitute a nuisance. The requisite intent may be merely that “defendant intentionally did an act which happened to interfere with plaintiff’s land.” Comment, The Law of Private Nuisance in Missouri, 44 Mo.L.Rev. 20, 51 (1979). In Genova v. City of Kansas City, 497 S.W.2d 555 (Mo.App.1973), the court approved a modified MAI 22.06, which required the jury find: (1) Plaintiff owned the damaged buildings, (2) defendant diverted the normal flow of water, (3) defendant allowed the deterioration of a drain near plaintiffs land, (4) water collected on defendant’s land and was discharged on plaintiff’s land in unnatural volumes, (5) defendant used his land unreasonably, and (6) plaintiff was damaged as a direct result. A similar instruction was approved in a nuisance suit where defendant’s hog farm polluted the air and water on plaintiff's property. Bower v. Hog Builders Inc., 461 S.W.2d 784 (Mo.1970). In the instant case the jury had sufficient evidence to conclude circumstances surrounding the construction of the landfill constituted a sufficiently intentional act to impose liability for a nuisance.

Negligence may also constitute a nuisance. In Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787 (Mo.App.1980), plaintiff alleged defendant negligently maintained a levee that caused the flooding of his land. The court allowed a cause of action in negligence to describe a temporary nuisance. It must be noted that negligence is not needed to prove a nuisance. Hawkins, supra; Proper v. City of Independence, 328 S.W.2d 55 (Mo.App.1959). Negligence alone does not create a nuisance. Lentz v. Schuerman Building & Realty Co., 359 Mo. 103, 220 S.W.2d 58 (banc 1949); Bollinger v. Mungle, 175 S.W.2d 912 (Mo.App.1943). Negligence will only support a finding of nuisance when it constitutes an unreasonable use of land.

MAI 22.06 requires the necessary finding of unreasonable land use. It was properly given in the instant case because liability for nuisance may rest on a finding of unreasonable use whether or not the use had been previously encountered. The instruction afforded sufficient flexibility to allow the jury to evaluate the instant case on its particular facts.

Second, defendant claims trial court committed error by refusing to give proposed converse instructions. With the exception of the names of the individual plaintiffs, the proposed instructions were identical:

Your verdict must be for defendant Environmental Sanitation Management, Inc. and against Plaintiffs Andrew Frank and Anna Pearl Frank if you believe:
First, defendant Environmental Sanitation Management, Inc. did not act with the purpose of causing ill-smelling odors and leachate to escape onto Andrew and Anna Pearl Frank’s property, and
Second, defendant Environmental Sanitation Management, Inc. did not act knowing that ill-smelling odors and leac-hate were escaping onto Andrew and Anna Pearl Frank’s property as a result of its conduct or knowing that ill-smelling odors and leachate were substantially certain to escape onto Andrew and Anna Pearl Frank’s property as a result of its conduct.

Defendant’s affirmative converse instructions are governed by MAI 33.01. “The facts hypothesized in an affirmative converse instruction must be sufficient in law to defeat plaintiff’s claim” MAI 33.01 at 489. See Morse v. Johnson, 594 S.W.2d 610 (Mo. banc 1980); Oliver v. Bi-State Development Agency, 494 S.W.2d 49 (Mo.1973). Defendant’s hypothetical facts merely eliminate two of many ways to show unreasonable land use. The converses were properly rejected.

Third, defendant claims the jury should have been instructed on damages for a temporary rather than a permanent nuisance. Damages for a permanent nuisance are measured by the difference in the land’s market value immediately before and after injury; damages for temporary nuisances include the decrease in rental or useable value of property during the injury. Spain v. City of Cape Girardeau, 484 S.W.2d 498 (Mo.App.1972). The character of the source of injury often distinguishes temporary and permanent nuisances. Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787 (Mo.App.1980). A nuisance is temporary if it may be abated, and it is permanent if abatement is impracticable or impossible. See Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626 (banc 1942); Bartlett v. Hume-Sinclair Coal Mining Co., 351 S.W.2d 214 (Mo.App.1961). Evidence showed expensive and sophisticated leachate control plans failed to stop the outbreaks. This justified the instruction on permanent damages. Ruppel v. Ralston Purina Co., 423 S.W.2d 752, 756 (Mo.1968). Evidence also showed a stigma from repeated leachate outbreaks permanently devalued plaintiffs’ property. This independently justified the instruction on permanent damages. Amish v. Walnut Creek Development, Inc., 631 S.W.2d 866 (Mo.App.1982). The instruction on permanent damages was properly given and the record reveals sufficient evidence to support the jury’s findings.

Fourth, defendant claims trial court erred by sustaining an objection to certain testimony. Defense counsel asked James Penfold, an expert with DNR, a hypothetical question:

Mr. Penfold, assuming that ESM maintains any seep that might develop on the landfill area, that isn’t picked up by the present collection system, and assuming the hauling capabilities that you testified to, do you have an opinion as to whether or not this leachate collection system is going to work in terms of preventing leachate from getting into the creek.

Trial court sustained plaintiff’s objection that the question “assumes facts into the future and therefore calls for the witness to speculate and would be an improper question because there could be no evidence as to what will be done in the future.” No offer of proof was presented by defense counsel. Generally, appellate courts will not review excluded evidence without a specific and definite offer of proof. Karashin v. Haggard Hauling & Riggins, Inc., 653 S.W.2d 203 (Mo. banc 1983). We carved out an exception to this rule in State ex rel. State Highway Commission v. Northeast Building Co., 421 S.W.2d 297 (Mo.1967). In Northeast we recognized the purpose of an offer of proof is to insure the trial court and opposing counsel understand the proposed evidence. Additionally, an offer of proof enables appellate courts to understand claims of error. In Northeast an offer of proof was not needed because everybody at trial knew what the testimoy would be. Because the objection was based on a category of evidence and could be adequately reviewed, we created an exception to the rule requiring offers of proof. This exception is very narrow. First, it requires a complete understanding, based on the record, of the excluded testimony. Second, the objection must be to a category of evidence rather than to specific testimony. Third, the record must reveal the evidence would have helped its proponent. See Brooks v. Travelers Insurance Co., 515 S.W.2d 821 (Mo.App.1974). The instant evidence does not fit into the Northeast exception. The objection was to specific content not to a category of questioning. In Northeast we could review whether piecemeal valuation was improper. Here, we would have to guess whether the content of the witness’ answer would have been improper evidence. The point was not properly preserved for review. See State ex rel. State Highway Commission v. Ankrom, 588 S.W.2d 172 (Mo.App.1979).

We have reviewed defendant’s remaining allegations of error and we incorporate that part of the court of appeals’ opinion which addresses the allegations.

“Next, defendant asserts certain evidence was erroneously admitted at trial. Defendant first complains of the admission of evidence that it had violated Missouri’s Clean Water Law.

“In December of 1980, defendant and the State of Missouri entered into a stipulation and consent order in resolving an action brought by the state charging defendant with various violations in the operation of the landfill. Defendant motioned in limine to exclude reference to the consent order and plaintiffs agreed not to raise the issue. On the third day of trial, defendant produced evidence approximately $328,000 had been spent by it to arrest the leachate problem. The next day, plaintiffs, in conference with the trial court, sought permission to refer to the consent order to shed light on the evidence of defendant’s expenditures. The trial court granted permission for plaintiffs to ask defendant’s president if the Missouri Department of Natural Resources pressured it to make changes in the landfill’s operation.

“When the president was asked this question he answered ‘no.’ The trial court then permitted plaintiffs to ask whether the Attorney General had brought an action against defendant for violations of the Clean Water Law. The president stated the action had to do with a notching of the leachate collection system. There was no evidence of the outcome of the action or the consent order. In controlling the scope and content of cross-examination, the trial court enjoys broad discretion. Wilkins v. Cash Register Service Co., 518 S.W.2d 736, 750 (Mo.App.1975). Here the cross-examination was closely supervised. We find no abuse of the court’s discretion in allowing plaintiffs’ questioning in response to defendant’s evidence of the amount spent to improve the landfill.

“Defendant argues three exhibits should not have been admitted because they contain witnesses’ opinions as to conclusions of law. This ground for objection was never submitted to the trial court when the exhibits were introduced nor in the motion for a new trial. A party may not advance on appeal an objection to evidence different from the one presented to the trial court. Phillips Pipe Line Co. v. Ashley, 605 S.W.2d 514, 518 (Mo.App.1980).

“Defendant also complains the trial court allowed witnesses Crawford and Williford to testify because their testimony was ‘irrelevant, injected a false issue, and was privileged.’ This part of the point relied on presents nothing for review. Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978). Our reading of the briefs and the record on appeal convinces us no reversible error was uttered out of the mouths of Crawford and Williford when weighed with the objections interposed by defendant.

“Finally, defendant complains the trial court abused its discretion by denying its motion for new trial and remit-titur on the basis of excessive verdicts. Plaintiff Hoskins said his loss was $27,000, a real estate expert said it was $12,900 and the jury awarded $6,500. Plaintiff Curren-der put his loss at $109,250; a real estate expert at $71,134 and the jury awarded $43,888. Plaintiff Frank put his loss at $75,000; a real estate expert at $41,000; and the jury awarded $23,222. The matter of excessiveness is to a great extent within the province of the trial court. Morris v. Israel Bros., Inc., 510 S.W.2d 437 (Mo.1974). Because the verdicts were within the evidentiary limits, we will defer to the discretion of the trial court.”

Judgment affirmed.

RENDLEN, C.J., and HIGGINS and GUNN, JJ., concur.

BLACKMAR, J., concurs in separate opinion filed.

WELLIVER, J., dissents in separate opinion filed.

DONNELLY, J., dissents and concurs in separate dissenting opinion of WELLIVER, J.

BLACKMAR, Judge,

concurring.

I wholly concur in Judge Billings’ scholarly and lucid opinion.

This, for me, is not a difficult case. The defendant, for its own profit, established and maintained a landfill in which solid and liquid waste were buried. A deleterious substance escaped into normal drainage channels and caused damage to downstream owners. It is entirely proper that the proprietor, rather than the owners, bear the loss. The principle is similar to that applied in products liability cases such as Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. banc 1984).

Just as in products liability cases, the defendant’s fault should not be an issue. I agree that “reasonableness of use” is an appropriate jury submission.

The principal opinion does not “turn back the hands of time” nor does it invoke a “long discredited view.” The dissent quotes numerous learned scholars, but a substantial number of them wrote before the development of products liability law. There seems to be a lack of synchronization between the portions of Restatement of Torts Second, dealing with products liability (§ 402A) and nuisance (§ 822). But restatements are not law.

The principal opinion correctly analyzes and harmonizes the earlier Missouri cases and recognizes that § 822 does not accurately reflect our law. I find both clarification and modernization.

WELLIVER, Judge,

dissenting.

I respectfully dissent.

Rather than clarify and modernize the law of nuisance, the principal opinion opts to turn back the hands of time and invoke the long, discredited view of liability without fault in nuisance. For over a century, courts in this State and elsewhere have struggled with the basis for liability in private nuisance, and it is time that Missouri pull nuisance out of the “legal garbage can” and give it a proper place in our law.

The law of nuisance largely developed through a series of historical accidents, and the term has been variously used with little or no analysis. Professor Prosser wrote “[tjhere is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ ” W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts at 616 (1984). Similarly, Professors Cunningham, Stoebuck and Whitman write that “[i]n tort law the word ‘nuisance’ has had an extremely elastic meaning; sometimes it is little more than a pejorative term, a weasel word used as a substitute for reasoning.” R.A. Cunningham, W.B. Stoebuck, & D.A. Whitman, The Law of Property 413 (1984). See also 5 Powell On Real Property § 704; Anderson, “The Rylands v. Fletcher Doctrine in America: Abnormally Dangerous, Ultra-hazardous, or Absolute Nuisance?,” 1978 Ariz. State L.J. 99; Seavey, “Nuisance: Contributory Negligence and Other Mysteries,” 65 Harv.L.Rev. 984 (1952).

The principal opinion gets caught in this “impenetrable jungle” and errs in suggesting that the defendant’s legal fault is not an essential element in this nuisance action. The principal opinion holds that a defendant’s conduct is not an element of liability in nuisance. For that reason, the opinion rejects the Notes on Use to MAI 22.06 and holds that MAI 22.06, which “makes no mention of defendant’s conduct,” properly reflects Missouri law. I cannot agree with these assertions because the Notes on Use properly reflect the law of nuisance. To be held liable, the defendant must have acted intentionally or negligently. Because this element is not made clear in MAI 22.06, I would no longer sanction the use of MAI 22.06. For this same reason I believe the trial court erred by refusing to give the defendant’s proposed converse instructions.

A careful examination of nuisance law illustrates that legal fault generally has been a prerequisite for holding a defendant liable. “[Tjoday it is recognized that one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities.” Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 394 N.Y.S.2d 169, 172, 362 N.E.2d 968, 971 (1977). See e.g., Sandifer Motors, Inc., v. City of Roeland Park, 6 Kan.App.2d 308, 628 P.2d 239 (1981); Melendres v. Soales, 105 Mich.App. 73, 306 N.W.2d 399 (1981); Highview North Apartments v. County of Ramsey, 323 N.W.2d 65 (Minn.1982); Nelson v. D.J.C. Plywood Corp., 154 Mont. 414, 465 P.2d 314, 321 (1970); Phillips Ranch, Inc. v. Banta, 273 Or. 784, 543 P.2d 1035, 1039 (1975); Vincent v. Salt Lake County, 583 P.2d 105 (Utah 1978); Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 75 S.E.2d 584 (1953); CEW Management Corp. v. First Federal Savings & Loan Ass’n, 88 Wis.2d 631, 277 N.W.2d 766 (1979). Authorities are in apparent agreement that “[a]n invasion of another’s use and enjoyment of land which gives rise to liability for a nuisance may be either intentional or unintentional. Liability for an unintentional invasion of the use and enjoyment by another of his land is imposed by applying the rules relating to negligent and reckless conduct, whereas an intentional interference is actionable where it is both substantial and unreasonable.” 58 Am. Jur.2d Nuisances § 32, § 19. One commentator notes that “[njuisance liability is normally predicated upon intentional conduct of the defendant; but there is also an area of law where nuisance liability overlaps both liability for negligence and liability for engaging in ultrahazardous activities.” 5 Powell On Real Property § 705. See also Beuscher & Morrison, “Judicial Zoning Through Recent Nuisance Cases,” 1955 Wis.L.Rev. 440, 441; Keeton, “Trespass, Nuisance, and Strict Liability,” 59 Colum.L.Rev. 457, 460-62, 473-74 (1959); Prosser, supra; Seavey, supra. The Restatement (Second) of Torts would require that the defendant either act intentionally, negligently, recklessly or engage in ultra-hazardous activity. Some authors go so far as to suggest that the tort should be limited to intentional conduct. See R.A. Cunningham, W.B. Stoebuck, & D.A. Whitman, supra, at 413. Prosser and Keeton, for example, observe that “[pjrivate nuisance is a tort that protects the interest of those who own or occupy land from conduct committed with the intention of interfering with a particular interest — the interest in use and enjoyment. It is, therefore, like trespass, a tort arising from the intentional interference of an interest in land that is deemed worthy of legal protection.” W. Prosser & W. Keeton, supra, at 622.

Most nuisance cases rest upon intentional conduct, regardless of the degree of care exercised by the defendant. Rabin, “Nui-sanee Law: Rethinking Fundamental Assumptions,” 63 U.Va.L.Rev. 1299, 1317 (1977). Nuisance cases based upon intentional conduct generally fall within one of the following categories:

Analytically, cases that do not involve a personal entry whereby damage to land or annoyance to the occupants thereof has resulted can be classified into four general categories: (1) those in which the defendant knew that his conduct would cause or was causing invasions of plaintiff’s land or the airspace above by things or forces and in which he knew that it would have or was having the effect of causing substantial damage or annoyance; (2) those in which defendant knew that his conduct would cause or was causing invasions of plaintiff’s land or airspace but in which he did not know that the effect would be or was to cause substantial damage or annoyance; (3) those in which neither forces nor things were projected upon the land of plaintiff but in which defendant’s conduct or activity produced to his knowledge unpleasant or depressing emotions and feelings of a substantial intensity.

Keeton, supra, at 461. Additionally and fourth, while some other cases are often couched in terms of strict liability, the better view is that the defendant is deemed liable because he knowingly or intentionally did that which is unlawful or is substantially certain to cause harm. See Anderson, supra, at 104; Faulk, “Absolute Liability:’’ “Historical Perspectives and Political Alternatives,” 37 Okla.L.Rev. 569, 571-72 (1984). Judge Cardozo explained that “[h]e is not to do such things at all, whether he is negligent or careful.” McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (1928). One commits an unlawful act — often called a nuisance per se — by knowingly creating an unreasonable danger to others even though exercising care to avoid harm. Id. at 392. See also Heeg v. Licht, 80 N.Y. 579 (1880) (the leading New York case relied upon by Cardozo, J.). Missouri cases have explained these situations by noting the “difference where the injurious consequences may and must result.” Murphy v. Gillum, 73 Mo.App. 487, 494 (1897). If the injurious consequences must result, then the defendant is said to have acted intentionally because he or she must have anticipated the harm. Id. See also Greene v. Spinning, 48 S.W.2d 51, 61 (Mo.App.1931); Schindler v. Standard Oil Co., 207 Mo.App. 190, 232 S.W. 735, 736-37 (1921); Bradbury Marble Co. v. Laclede Gas Light Co., 128 Mo.App. 96, 106 S.W. 594, 597 (1902) (quoting Joyce on Nuisance. In Leffen v. Hurlbut-Glover Mortuary, 363 Mo. 1137, 257 S.W.2d 609 (1953), the Court held that the operation of a funeral home in a residential district was “unlawful.” The defendant can be said to have committed a wrongful act by intentionally operating a funeral home in an area where it was substantially certain to cause injury. See generally Keeton, supra, at 458 (“an actor ... can be just as much at ‘fault’ by the choice of the location of an activity where the necessary or likely result will be to cause annoyance or discomfort”). The court added an important caveat when it observed that “[i]t may be that, as a result of the enactment of a municipal zoning ordinance, the maintenance and operation of the funeral home at its present location is now lawful and proper. If so, our restraint of a common law nuisance (resulting, not from the operation but solely from the location of the funeral home) would be improper and futile.” Leffen v. Hurlbut-Glover Mortuary, supra, 257 S.W.2d at 614.

It is from these cases in our State that the principal opinion incorrectly concludes that the defendant’s conduct is irrelevant. In such cases, the degree of care exercised by the defendant is immaterial because the defendant acted intentionally, and thus with legal fault.

In cases where the conduct is wrongful either because the defendant is improperly causing noises, smells, vibrations or other harmful effects on the plaintiff’s land or in cases where the defendant by the continuance of his activity creates undue risk to structures or persons on the plaintiff’s land, it is clear that the activity is wrongful and cannot be made rightful by the fact that the utmost care is used in minimizing harm. Because of this there are many expressions in cases and textbooks that negligence is not essential for a nuisance and that a nuisance may exist even though the defendant is careful. From this generalization it has been held occasionally that even where the defendant’s conduct is neither negligent nor ultrahazardous, there is an element in the rules of nuisance which makes the defendant liable for unexpected results, although his conduct was lawful.

Seavey, supra, at 986-87. Professor Seavey’s remarks accurately describe the error in the principal opinion.

If the defendant’s use of the property is neither inherently unlawful nor a dangerous activity, and the defendant does not knowingly or intentionally engage in activity where significant injury is substantially certain to follow, then liability must be predicated upon negligent or reckless conduct. Judge Cardozo held that if the defendant’s activity is not wrong or unlawful “in its origin” it “may be turned into a nuisance by negligence in maintenance.” McFarlane v. City of Niagara Falls, supra, 160 N.E. at 392. As the principal opinion holds, a number of Missouri cases indicate that negligence may but need not support a nuisance action. Negligence is not necessary where legal fault is premised upon an intentional wrong, but absent the intentional wrong negligent conduct must exist.

A distinction has been made between acts lawful in themselves, done by one upon his own premises, which may result in injury to another if not properly done or guarded, and those which in the nature of things must so result; in the former case, a person could only be made liable for actual negligence in the performance of the act or mode of maintaining it ... The one can only become a nuisance by reason of the negligent manner in which it is performed or maintained ...

Greene v. Spinning, supra, at 61 (quoting 46 C.J. 664). The soundness of this approach becomes evident when one realizes that an element of nuisance is the unreasonable use of one’s land. If the use of the land is not unlawful or inherently dangerous, or if the defendant does not intentionally use his or her land knowing that harm is resulting or substantially certain to follow, it is hard to see how the defendant can be said to be using his land in an unreasonable manner. In the case at bar, for example, the operation of the landfill in the particular location is not an unreasonable use — it is neither unlawful nor inherently dangerous. Nor has it been claimed that the defendant operated the landfill knowing that harm to the plaintiff was substantially certain to follow. Thus, it is not the actual use of the land which can be said to be unreasonable or the cause of the harm. Rather, it is the way in which this particular use was maintained that caused the harm. Just as “[a]n intentional invasion of another’s interest in the use and enjoyment of land is unreasonable unless the utility of the actor’s conduct outweighs the gravity of the harm,” so too it is the negligent or reckless use of one’s property that makes the use unreasonable.

Because I believe that both the majority of jurisdictions do and the law of this state should require the presence of legal fault for liability in nuisance, I dissent from the principal opinion. I would urge the redrafting of MAI 22.06.

      . This conflict was discussed in Comment, The Law of Private Nuisance in Missouri, 44 Mo.L. Rev. 20, 53 (1979). The comment correctly concluded that the verdict director is consistent with Missouri law, which does not require a plaintiff to prove negligence or intent. The comment continued to explain that there is little authority for the Committee to have adopted the Restatement:
      John S. Divilbiss served as Reporter for MAI from 1962 until his death in 1967. His unpublished notes cite Clinic & Hosp., Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384 (K.C.1951) and Fuchs v. Curran Carbonizing & Eng’r Co., 279 S.W.2d 211 (St.L.Mo.App.1955) as authority for the proposition that Missouri had adopted the Restatement. In Clinic, the court cited § 822 of the Restatement and listed factors for determining whether a private nuisance exists. The court did not discuss
      Third, ill-smelling odors and leachate escaped from defendant Environmental Sanitation Management, Inc.’s premises onto plaintiffs’ property and this substantially impaired plaintiffs’ use of their property, and Fourth, such use by defendant Environmental Sanitation Management, Inc. of its property was unreasonable. whether intent and/or negligence are required in order to maintain a private nuisance action. A subsequent case, Lee v. Rolla Speedway, Inc., 494 S.W.2d 349 (Mo.1973), used the Restatement balancing test in a similar manner, but did not mention the requirement of intent and/or negligence.

        Id. at 53 n. 251.

      . Committee’s Comment (1969 New)
      Section 822, the Restatement (Second) of Torts § 822 (1965), states:
      The actor is liable in an action for damages for a non-trespassory invasion on another’s interest in the private use and enjoyment of land if,
      (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and

        (b) the invasion is substantial; and
      (c) the actor’s conduct is a legal cause of the invasion; and
      (d) the invasion is either
      (i) intentional and unreasonable; or
      (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.
      The above instruction is intended to cover only those cases where the invasion is intentional and unreasonable.
      The Restatement points out in § 825 comment d:
      An invasion of another’s interest in the use and enjoyment of land is intentional when the actor
      (a) acts for the purpose of causing it; or
      (b) knows that it is resulting or is substantially certain to result from his conduct.
      Comment b following states:
      Most of the litigation over non-trespassory invasions of interests in the use and enjoyment of land involves situations in which there are continuing or recurrent invasions resulting from continuing or recurrent conduct. In such cases the invasion resulting from the actor’s conduct may be either intentional or unintentional, but when the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional.

      . Rebel indicated, in dicta, that modern law requires intentional, negligent, reckless or abnormally dangerous conduct by defendant. The court noted cases that disagree with this position. To the extent Rebel holds nuisance cannot be maintained without proof of the described conduct, it is disapproved. A more accurate statement of the law may be found in White v. Smith, 440 S.W.2d 497 (Mo.App.1969). The court held defendant’s negligence, intention, design, or motive are immaterial to his liability for nuisance.

      . Courts have declined to impose liability for land use that injured adjoining land owners. In Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983), property owners sued neighbors for damages from water runoffs. Defendants dug a garden and installed a tie border. Plaintiffs alleged the improvements rerouted water onto their land in destructive quantities. The jury was given an instruction that required a finding of unreasonable land use by defendant. It returned a verdict for defendant. In Schott v. Appleton Brewery Co., 205 S.W.2d 917 (Mo.App.1947), a brewery was held to be a reasonable use of land and therefore not a nuisance.

      . There is an old distinction in nuisance cases that inaccurately describes this requirement. Things lawfully done which may cause injuries if done improperly were held to need proof of negligence before constituting a nuisance. Things which caused injuries by their very nature were held to not need proof of negligence before constituting a nuisance. Greene v. Spinning, 48 S.W.2d 51 (Mo.App.1931); Schindler v. Standard Oil Co., 207 Mo.App. 190, 232 S.W. 735 (1921). It was thought that the nuisance must be inherent in the source of injury. Pearson v. Kansas City, 55 S.W.2d 485 (Mo.1932). It is more accurate to say negligence may constitute an unreasonable use of land and thereby create a nuisance, but negligence alone does not create the nuisance.

      . Prosser, "Nuisance Without Fault,” 20 Tex.L. Rev. 399, 410 (1942).

      . Restatement (Second) of Torts §§ 822-40.

      . Cases involving abnormally dangerous or ultrahazardous activity have plagued the law of nuisance for many decades. In Missouri and elsewhere, courts in the nineteenth century rejected Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), which purported to impose liability without fault in certain cases involving abnormally dangerous activity. Comment, “The Rylands v. Fletcher Doctrine and Its Standing in Missouri," 18 Mo.L.Rev. 53 (1953). Situations that might have been covered by the doctrine in Rylands, therefore, were brought within the ambit of nuisance law thereby creating confusion in the law of nuisance. See Seavey, supra, at 986. See also State, Department of Environmental Protection v. Ventrón Corp., 94 N.J. 473, 468 A.2d 150 (1983). “Even jurisdictions that reject Rylands by name have accepted and applied it under the cloak of various other theories, with strict liability commonly imposed under the sobriquet of ‘nuisance.’’’ Peneschi v. National Steel Corp., 295 S.E.2d 1, 5 (W.Va.1982). Ry lands, however, is not actually a doctrine of liability without fault. Id. at 5, 7. See also Anderson, supra, at 104 (”[t]he law thus imposes liability on anyone who for his own purposes creates a recognizably abnormal risk of harm to others’’); Harper v. Regency Development Co., Inc., 399 So.2d 248, 252-53 (Ala.1981). Doubtless because of the problems these cases cause for the law of nuisance, the Restatement (Second) of Torts and a number of jurisdictions now treat this issue apart from the law of nuisance. Restatement (Second) of Torts §§ 519, 520. See e.g., Harper v. Regency Development Co., Inc., supra, at 253; Dye v. Burdick, 262 Ark. 124, 553 S.W.2d 833, 840 (1977); Peneschi v. National Steel Corp., supra, at 10.

      . See Restatement (Second of Torts § 825(b). Some commentators suggest that liability is based upon the defendant’s negligence in not forseeing that in a certain geographical area certain uses are "substantially more injurious" then the typical uses normally encountered in the area. Rabin, supra, at 1318. See abo Kee-ton, supra, at 459.

      . The principal opinion relies heavily upon White v. Smith, 440 S.W.2d 497 (Mo.App.1969), where that court held that the nuisance “does not rest or depend upon the degree of care used, but upon the degree of danger existing with the best of care. So, in determining liability for the maintenance of a nuisance, whether defendant was negligent and what his intention, design or motive may have been alike became immaterial.” Id. at 503. In White v. Smith, the court apparently followed the language appearing in such cases as Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, 489 (1932). In Pearson v. Kansas City, the Court held that "[t]here must ... be a degree of danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use ..." Pearson v. Kansas City, supra, 55 S.W.2d at 489. See abo Haynor v. Excebior Springs Light, Power, Heat & Water Co., 129 Mo.App. 691, 108 S.W. 580, 582 (1908) (“the fact of negligence is not an essential element, for the reason that a thing is a nuisance when of itself it constitutes an unlawful annoyance or a source of danger to others, and the author of it or the one who maintains it is held liable regardless of the degree of care exercised by him.’’) The act of knowingly or intentionally doing that which is unlawful is wrongful and an actionable nuisance. Pearson v. Kansas City, supra, 55 S.W.2d at 489-90. In White v. Smith, therefore, the court quoted the oft-repeated phrase in these type of cases that ”[a]n actionable nuisance may be 'anything wrongfully done or permitted ...’” White v. Smith, supra, at 503 (emphasis added). I believe the principal opinion errs in its understanding of this line of cases. The area of law allowed recovery when the defendant knew or should have known that his use of the land was unlawful (substantially certain to cause harm either in the particular location or anywhere), and thus these courts properly held that negligence in the ordinary sense of the term was not required.

        .See generally Neyland v. Schneider, 615 S.W.2d 285, 286-87 (Tex.Civ.App.1981). “The conclusion of ‘unreasonableness’ depends then upon liability-inviting conduct of the defendant plus a finding that this conduct violates a protected interest of the neighbor-plaintiff.” 5 Powell On Real Property § 704.

      . There might be liability if, as the principal opinion suggests, there was a continuing known invasion, thereby establishing intent. This, however, is a factual question and the jury was not so instructed.

      . 58 Am.Jur.2d Nuisance § 22.