Aguayo v. Village of Chama

• Decision Date: 13 January 1969
• Docket Number: No. 8615,8615
• Citation: 79 N.M. 729,449 P.2d 331,1969 NMSC 5
• Parties: H. Paul AGUAYO and Ruth E. Aguayo, his wife, Plaintiffs-Appellants, v. VILLAGE OF CHAMA, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 331

449 P.2d 331

79 N.M. 729

H. Paul AGUAYO and Ruth E. Aguayo, his wife, Plaintiffs-Appellants, v. VILLAGE OF CHAMA, Defendant-Appellee.

No. 8615.

Supreme Court of New Mexico.

Jan. 13, 1969.

Ernest E. Valdez, Santa Fe, for plaintiffs-appellants

Monroe L. Fox, Chama, for defendant-appellee.

OPINION

NOBLE, Chief Justice.

H. Paul Aguayo and Ruth, his wife, were the owners of approximately six acres of real estate situate at Chama, New Mexico, upon which they had a residence and upon which they commenced construction of a commercial trailer park. After acquisition of the property by plaintiffs, the village of Chama constructed a sewage disposal plant at a place approximately 220 feet from plaintiffs' house. Plaintiffs brought action seeking (1) a mandatory injunction requiring Chama to abate an alleged nuisance resulting from the operation of the disposal plant; (2) damages for loss of use of the premises and loss of rental income; (3) permanent damages resulting from the alleged nuisance; and (4) inverse condemnation for consequential damages. From a judgment denying injunctive relief and damages, and awarding Chama judgment against the plaintiffs in the sum of $98.00, plaintiffs have appealed.

Plaintiffs have not attacked the denial of injunctive relief by either a point relied upon for reversal or by argument. They have, accordingly, abandoned their appeal from the judgment denying injunctive relief. Supreme Court Rule 15(11) (§ 21--2--1(15)(11), N.M.S.A.1953 (Supp.1967)). No appeal was taken from the money judgment rendered against the plaintiffs on the counterclaim.

Relying on article II, § 20 of the State Constitution, plaintiffs assert that they are entitled to recover consequential damages to their land without establishing either that the treatment plant constitutes a nuisance or that it was negligently operated. Thus, they contend they are entitled to damages because of the mere proximity of the plant. However, not every depreciation in the market value of land resulting from the proximity of a public improvement is a damage in the constitutional sense. A majority of the states adopting the 'damage clause' hold that when an injury complained of is not due to interference of enjoyment by an abutter of his frontage on a public way, or by a riparian owner of his adjacency to a stream, and does not consist of any physical injury to property cognizable to the senses, there is ordinarily no damage for which the constitution requires compensation unless the injury is one for which a liability would have existed at common law if it had been inflicted without statutory authority. 2 Nichols, Eminent Domain (3d Ed.) 519, § 6.4433. Thus, the mere location of the treatment plant in the neighborhood of plaintiffs' land gives rise to no cause of action unless it is a nuisance per se. Generally speaking, a sewage disposal plant is not a nuisance per se, but is only a nuisance in fact or per accidens, and, in the present case, the trial court has found on the basis of substantial evidence, that the sewage plant can be efficiently operated so as to eliminate all offensiveness. Annot., 40 A.L.R.2d 1177, 1206; Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.2d 435, 438; City of Harrodsburg v. Brewer, 243 Ky. 378, 48 S.W.2d 817.

The language of the Iowa Supreme Court in Miller v. Town of Ankeny,253 Iowa 1055, 114 N.W.2d 910, 914, expresses our view as to the situation in this case. That court said:

'Where, as here, a nuisance is not permanent but subject to abatement, in the absence of injury to the property itself, the measure of damages is the diminution in rental value caused by the nuisance together with such special damages, as for discomfort and annoyance, as may result therefrom. This rule applies even though plaintiff is both owner and occupant of his premises.'

See also Kellerhals v. Kallenberger, 251 Iowa 974, 103 N.W.2d 691, 695, and citations; Schlotfelt v. Vinton Farmers' Supply Co., 252 Iowa 1102, 109 N.W.2d 695, 702. It is thus settled in this case that the mere construction of the sewage treatment plant in proximity to plaintiffs' land does not constitute a permanent nuisance for which consequential damages are required to be awarded.

Error is asserted in the failure of the trial court to award damages, on a temporary-nuisance theory, for the annoyance and inconvenience experienced by the plaintiffs as a result of odors emanating from the disposal plant and from a nearby lagoon into which the village had deposited refuse prior to the completion of the plant.

While the court found that 'from time to time during the period from Nov. 11, 1965, the plant has emitted offensive odors which have temporarily interfered with the use and enjoyment of the plaintiffs' lands,' nevertheless it denied recovery on the premise, it would seem, that no diminution in the rental value of the property was shown. Our review of the record discloses that the court's finding with respect to rental value has substantial support in the evidence, but the court erred, we believe, in considering loss of rental value a prerequisite to recovery for annoyance and inconvenience.

The majority rule...