City of Clanton v. Johnson

• Decision Date: 20 April 1944
• Docket Number: 5 Div. 391.
• Citation: 245 Ala. 470,17 So.2d 669
• Parties: CITY OF CLANTON v. JOHNSON.
• Court: Alabama Supreme Court

17 So.2d 669

245 Ala. 470

CITY OF CLANTON v. JOHNSON.

5 Div. 391.

Supreme Court of Alabama

April 20, 1944

Appeal from Circuit Court, Chilton County; Arthur Glover Judge.

The bill of complaint is in pertinent part as follows:

"4th. Plaintiff further avers that said sewerage system is the property of said City of Clanton and is maintained and operated by said City of Clanton as a sanitary sewer for human excrement, waste, and discharge, and that said City has provided no septic tank, sewerage disposal system, or other chemicals to destroy said waste matter or to kill or destroy the odor from the same, but that the same flows in one large sewer from the entire population and territorial area of the City of Clanton and empties into Walnut Creek, as herein averred, and plaintiff avers that the operation and maintenance of said sewer is unlawful and wrongful and creates a nuisance, under the law. Plaintiff further avers that practically continuously the odor around his dwelling house is vile, noxious, and offensive arising from the miasma of said creek by the defendant and that at the present time the seven year old child of plaintiff is suffering from a sickness, which is understood to be Malaria fever, and plaintiff avers that said sickness was caused by drinking milk and eating butter from the cattle drinking the water of said creek, and plaintiff avers that from the 14th day of March to the 1st day of June, 1942, the plaintiff was sick and unable to work, and lost time from his work, and plaintiff avers that his sickness as he is informed, was the direct cause of drinking milk and eating butter from his said milch cows who drank the polluted water of said creek and plaintiff avers that prior to the pollution of said creek he sold considerable milk and butter to his neighbors and other consumers; that since the pollution of said creek, his customers and consumers have ceased to use said milk and butter and plaintiff avers that within the past six months sores and yellow blisters have come on the udders and teats of his milch cows and on several occasions his cows have been sick and during which time, affiant was unable to use the milk from said cows, and plaintiff avers that all of his said injuries and damages have been caused by the pollution of said creek wrongfully and unlawfully by said City of Clanton.

"5th. Plaintiff further avers that by reason of and as a consequence of the defendant maintaining and operating said sewerage system and the emptying of said sewerage into said creek into such close proximity to plaintiff's property that the value of his dwelling house has been materially reduced and value of his property has been greatly depreciated and the desirability and comfort of his premises as a home has been greatly lessened, if not totally destroyed, and plaintiff avers that his said property, before the pollution of said stream, was of the value of to-wit, $5000.00, and since the pollution of said stream, the value of his property would not exceed $3500.00, and plaintiff avers that the property of the plaintiff to said extent, has been thus appropriated to the use and benefit of the defendant, without just payment of compensation therefor, and plaintiff avers that the conditions around his dwelling house and premises are intolerable and unbearable and that the conditions have not improved, but have continually grown worse, as more and more sewerage disposal is emptied into said creek and that plaintiff will be forced to abandon his home and property, unless said conditions are abated or improved, and plaintiff avers that said conditions, as herein averred, has existed for the past three or four years and within the past six months.

"6th. Plaintiff further avers that, as hereinabove averred, he has owned said property which has constituted his homestead for more than twenty years, and for a great many years prior to the pollution of said stream, as herein averred, and plaintiff avers that from time to time he has made complaint to the Mayor of the City of Clanton and to members of the City Council and governing authority of said City of Clanton, and plaintiff has demanded that said condition be abated or eliminated and the said officials of the City of Clanton have had knowledge or notice of the existence of said condition since their election and assumption of office on or about October 1st, 1940, and said officials while stating to plaintiff that the condition is bad and should be remedied, yet the condition has not been remedied or abated or eliminated or lessened in any degree and said officials have only informed the plaintiff that they were financially unable to build a sewerage disposal system or to otherwise eliminate said condition and the same has continued unabated during said time and plaintiff avers that he has from time to time made complaint to the City Council and Mayor of the City of Clanton, but said condition has not been abated or eliminated, as herein averred, and said condition is continuing and existing at the time of filing suit in this cause and has for six months and more previous to the filing of this suit. Plaintiff further avers that he has been deprived of the pleasurable enjoyment of his home, on account of the noxious odors, smells and scents that cover his land and his dwelling house, and that the rental value of his property has been materially lessened, on account of the undesirability of residing and farming upon said premises and plaintiff has lost the use and income of his milch cows and the use of his pasture and plaintiff's property has been permanently injured and damaged, on account of the pollution of said stream by the defendant, as herein averred. Plaintiff further avers that before the filing of suit in this cause, plaintiff filed with the City of Clanton a claim for said damages and injuries, as herein averred, said claim being filed with the City of Clanton on August 4th, 1942, and plaintiff avers that the said City Council has rejected said claim and has denied the same and refused to pay to the plaintiff any damages suffered by the plaintiff, as herein averred, and as averred in said complaint, a copy of said complaint being hereto attached to this bill of complaint and marked Exhibit 'A', and made a part of the same."

Lawrence F. Gerald and Gerald & Gerald, all of Clanton, for appellant.

Omar L. Reynolds and Reynolds & Reynolds, all of Clanton, for appellee.

STAKELY Justice.

Johnnie J. Johnson (appellee) filed a bill in equity against the City of Clanton, a municipal corporation (appellant), to abate an alleged private nuisance and to recover damages. To this bill appellant filed a general demurrer, which was overruled by the court. This appeal is from that decree.

In substance the bill alleges that appellee is the owner of certain described land in Chilton County outside the corporate limits of Clanton, upon which appellee and his family have resided for many years, and that flowing through this place is Walnut Creek; that the land has been used by appellee for many years for domestic purposes and for pasturing, the creek furnishing abundant and wholesome drinking water for his cattle and stock; that about 1935 the corporate limits of Clanton were substantially extended, increasing the population from 1847 to about 4000; that "about four years ago the City of Clanton made extensive improvements and extensions of its sewerage system" so that the number of persons who became users of the sewerage system was greatly increased; that the sewerage system has only one terminal or outflow, which is in Walnut Creek, and that "within the past three or four years, the terminal has been extended" so that the system empties into Walnut Creek without the corporate limits of Clanton and about one-quarter mile from the property of appellee; that the water of the creek, as the same flows through the pastures of appellee, is now poisonous, polluted and unfit and unwholesome for appellee's stock and milch cows to drink; that the waste and discharge from the sewer is left upon appellee's property and from the excrement and matter there emanates offensive and loathsome odors which reach and penetrate the dwelling of appellee.

The method of maintaining and operating the sewerage system, the items of damages, the time of their occurrence, the presentation of appellee's claim and the denial thereof by the appellant, are set forth in paragraphs 4th, 5th and 6th of the bill of complaint, which will be set out in the report of the case, except that the copy of the claim which is attached as Exhibit A need not be set forth. The claim merely reiterates what has already been shown. It contains the following statement:

"Affiant avers that all of said damages as herein set forth have occurred within 6 months from the filing of this claim."

The sole objection to the bill, as raised by the general demurrer, is that the bill has no equity. The theory of the attack on the bill is that its allegations show the creation of the nuisance, if any, in about 1938 when the present sewerage system was installed and...