Adams v. Arkansas City
| Decision Date | 10 June 1961 |
| Docket Number | Nos. 42205,s. 42205 |
| Parties | Dewey A. ADAMS and Betty Adams, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee. Tiney E. ALEXANDER and Sarah Effie Alexander, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee. Thomas E. BOYLE and Charline M. Boyle, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee. Paul P. BORROR and Maxine A. Borror, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee. Michael MORHAIN, Appellant, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee. Harry N. WINTON and Roby A. Winton, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee. to 42210. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action to recover damages for injury to real estate arising from the maintenance of a nuisance created by the operation of a sewage treatment plant by a municipality, a petition, incorporating by reference a claim filed pursuant to G.S.1959 Supp. 12-105, is examined and construed on demurrer, and held to state a cause of action for diminution in the value of real estate.
2. The provisions of G.S.1959 Supp., 12-105, merely require that notice be given to the city of an injury to person or property for which damages are claimed, setting forth the required information, within three months after the injury concerning which complaint is made as a condition precedent to the maintenance of an action against a municipality. The statute neither classifies damages nor requires that the injury be temporary or permanent.
3. Where a municipality by its operation of a sewage treatment plant maintains a continuing nuisance, which has its inception more than three months prior to the filing of a claim with the municipality pursuant to G.S.1959 Supp., 12-105, and the injury concerning which complaint is made occurs within three months prior to the filing of such claim, a landowner is entitled to recover as damages the diminution in market value of his land caused thereby within such period of three months.
E. Dexter Galloway, Hutchinson, argued the cause, and A. Lewis Oswald and William L. Mitchell, Hutchinson, and Milburn E. Geist, Augusta, were with him on the briefs for appellants.
George Templar and Donald Hickman, Arkansas City, argued the cause, the George E. Sybrant, City Atty., and Willian E. Cunningham and Kirke W. Dale, Arkansas City, were with them on the briefs for appellee.
These actions were instituted in the district court of Cowley County, Kansas, to recover damages for injury to plaintiffs' real estate suffered as a result of a sewage treatment plant located in the vicinity of their property and operated by the City of Arkansas City, Kansas.
The cases have been consolidated pursuant to a stipulation that the decision in Case No. 42,205, which has been abstracted and briefed, will control the decision in the other cases.
The trial court sustained a demurrer to the amended petition, with amendments thereto, on the ground that it did not state facts sufficient to constitute a cause of action against the city, and appeal has been duly perfected.
The issue presented on appeal is whether the amended petition, with exhibits attached and incorporated therein, shows on its face that the injury was suffered more than three months prior to the filing of the appellants' claim with the city, and hence barred by G.S.1959 Supp., 12-105.
On the 13th day of March, 1959, the plaintiffs (appellants) filed a 'Notice of Claim for Proximate Damages to Real Property' with the City of Arkansas City, Kansas. The claim specifically described the appellants' real property where they lived and made their home. The claim alleged that the city failed:
'* * * to exercise reasonable and prudent judgment in selecting the present situs for the new sewage treatment plant and ordinary, prudent and reasonable city commissioners would have and should have anticipated odors, gases, fumes and stench would fall upon claimants' real property due to the choice of a site within so close proximity to complainants' dwelling, and, such negligent omission of judgment, and the results thereof, set in motion a chain of events and actions which constitute a nuisance by the city of Arkansas City against the complainants' real property, and resulting in great damage to said real property.'
It alleged that the location of the sewage treatment plant was nearer than one thousand feet from some dwellings in Sleeth Addition; that requests for relief or abatement of the nuisance have gone for naught, and that the city has given no positive relief to the complainants.
The claim then alleged:
'5. That the city of Arkansas City, Kansas, during the five months last past has owned and negligently operated, and still owns and negligently operates a new and defective sewage teatment plant and said city has continuously during the past five months wrongfully and negligently discharged and still does discharge from said sewage treatment plant large volumes of noxious and offensive odors, gases, fumes and stench upon, around, in, and over the real property of complainants and creating thereby a continuing nuisance against the claimants' real property by said acts, and to the great injury of claimants' property.
'6. That Specifically, said odors, gases, fumes and stench were of very high intensity on December 25th, 26th, 27th, the 28th and continued to remain so for several days from said dates and said stench during this particular period did great damage to the real property of said claimants. As a result of the very offensive stence during this particular period, a large and irritant group of citizents from the affected area met on December 29, 1958 at the City Hall with City Officials and protested long and vehemently against said odors and stench being around, on, in, and above their real property and they requested complete and immediate relief therefrom or legal action would be forthcoming for damages to their property.
'7. That said nuisance is continuous and constantly recurring and has inflicted an irreparable injury on the real value and market value of real estate in Sleeth and Mill Additions, and, the building of said sewage treatment plant in or adjacent to Sleeth Addition has given this area the bad reputation of being an undesirable place or area in which to reside because of the sewage treatment plant and the stench therefrom, and, the value and sale of realty in Sleeth and Mill Additions have depreciated greatly, and, claimants' real property has been particularly damaged and has been substantially and permanently depreciated in value.
'8. That the complainants have suffered and still suffer special and peculiar and injury resulting from said wrongful acts by the city of Arkansas City in its operation of said sewage treatment plant in that the air surrounding the complainants' dwelling has been and is polluted, unhealthful and unfit to live in, and destroying the dwelling's use as a residence for the complainants and complainants' family, and greatly depreciating its value, salability, rentability, and the opportunities to sell have been greatly reduced and are almost nil, to the complainants' damage of Four thousand one hundred sixty six dollars ($4166.00), and said amount of damage is a direct result of the nuisance created and operated by the city of Arkansas City.
(Emphasis added.)
The concluding paragraph of the appellants' claim demanded payment from the City 'for real property damages already suffered' in the sum of $4,166.
More than thirty days after the notice of claim was filed with the city, no settlement having been made concerning the matter, suit was filed by the appellants seeking damages.
The amended petition, after the usual preliminary allegations concerning the parties and specifically describing the involved real property, alleged:
'3. That the Defendant has constructed and now operated a sewage disposal plant, located in Sleeth Addition to the City of Arkansas City, Kansas, 1186 feet east southeast of the real estate of these Plaintiffs, which sewage disposal plant was placed in operation by the Defendant in the month of November, 1958.
'4. That on or about the 25th day of December, 1958, and at all times since said date, the Defendant, by its operation of said sewage disposal plant, has wrongfully allowed the discharge of foul, noxious, disagreeable and sickening odors, gases, fumes and stench to pass from said sewage disposal plant over and onto the real estate of the Plaintiffs herein, which has permeated through the house of the Plaintiffs, thereby creating a continuing and permanent nuisance against the real property of the Plaintiffs.
'5. That these Plaintiffs have a right to the uninterrupted, quiet, peaceful enjoyment of their home, and to have the same free from the contamination emitted into the air by this Defendant, its officers and employees.
'6. That since the construction and operation of said sewage disposal plant and the resulting discharge and emission of foul, noxious, disagreeable and sickening odors, gases, fumes and stench over, onto and into the premises and real estate of the Plaintiffs herein, and as a direct and proximate rusult, and caused solely by the nuisance above complained of, the real estate of the Plaintiffs has become an undesirable location in which to live, reside and raise a family; that this unisance has rendered the premises unfit for normal living purposes, and the premises have thereby been permanently reduced and depreciated in value, all to the damage of the rights of the Plaintiffs herein to have the...
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