Alexander v. Arkansas City

• Decision Date: 07 November 1964
• Docket Number: No. 43508,43508
• Citation: 193 Kan. 575,396 P.2d 311
• Parties: Tiney E. ALEXANDER and Sarah Effie Alexander, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

Page 311

396 P.2d 311

193 Kan. 575

Tiney E. ALEXANDER and Sarah Effie Alexander, Appellants, v. ARKANSAS CITY, Kansas, a Municipal Corporation, Appellee.

No. 43508.

Supreme Court of Kansas.

Nov. 7, 1964.

Syllabus by the Court

1. Plaintiffs are bound by the statutory claim which they are required to file as a precedent to the maintenance of a nuisance action against a city and the allegations of the petition must comply with the statements made in the claim.

2. Where a petition alleges negligence creating a nuisance in the construction and operation of a sewage disposal plant the defendant may plead and prove facts which refute the charge of negligence.

3. Where damages for permanent injury to real estate are sought for a continuing nuisance the defendant may prove as a defense that the nuisance was only temporary or has been abated.

4. Damages for a permanent injury to real estate cannot be recovered where the injury is only temporary.

5. The record in an action to recover damages for permanent injury to real estate resulting from a continuing nuisance is examined and held to disclose no trial errors which justify the granting of a new trial.

E. Dexter Galloway, Hutchinson, argued the cause, and Milburn E. Geist, Augusta, was with him on the briefs for appellants.

Kirke W. Dale and Donald Hickman, Arkansas City, argued the cause, and George E. Sybrant, City Atty., and William E. Cunningham, Arkansas City, were with them on the briefs for appellee.

PARKER, Chief Justice.

This was an action to recover permanent damages to plaintiff's real estate resulting from a continuing nuisance in the erection and operation of a sewage disposal plant by the defendant city.

This case, with other companion cases, was previously before this court on an appeal from a demurrer to the petition. See Adams v. City of Arkansas City, 188 Kan. 391, 362 P.2d 829, where the order sustaining the demurrer to the petition was reversed. The case is now here on appeal from the verdict and judgment rendered against the plaintiffs in the trial on the merits.

The amended petition alleged in substance that: The plaintiffs are husband and wife and own real estate in Sleeth Addition to the City of Arkansas City, Kansas, which they occupy as their home. The defendant, the City of Arkansas City, Kansas, constructed a sewage disposal plant in Sleeth Addition to the City of Arkansas City which was placed in operation in November, 1958. On or about the 25th day of December, 1958, and at all times since that date, the defendant has by the operation of the sewage plant wrongfully allowed the discharge of foul, noxious and disagreeable odors which permeated through the house of the plaintiffs creating a continuing and permanent nuisance and, as a result of the nuisance complained of, the market vlue of the plaintiffs' real estate has been permanently reduced and depreciated in the sum of $4,174. Attached to the petition, and made a part thereof, was the notice of claim to the city for damages to the real property dated March 13, 1959.

Specific allegations set out in the notice of claim will be discussed later. However, it should be noted at this point that the notice of claim did specifically allege that the defendant was guilty of negligence in the construction and operation of the plant.

The answer was in the form of a general denial and contained specific allegations which refuted the charge of negligence in the construction and operation of the sewage plant.

The case was tried by a jury which rendered a general verdict in favor of the defendant. Plaintiffs have appealed alleging numerous trial errors.

Many of the alleged errors are related and may be grouped and disposed of by a single discussion.

At the outset appellants contend that the trial court erred: (1) in not sustaining their motion to strike certain allegations from the answer; (2) in not requiring the defenses, set forth in the answer, to be separately stated and numbered; (3) in not sustaining the demurrer to certain parts of the answer. It should be noted that the challenged allegations of the answer deal with facts refuting negligence in the construction and operation of the plant.

In connection with the foregoing contentions the appellants also contend that the trial court erred in permitting the introduction of evidence in support of the allegations heretofore mentioned.

Appellants argue that their cause of action was based on a nuisance, not negligence, and that they make no contention that appellee was guilty of negligence, either active or passive. Our examination of the amended petition discloses otherwise.

The appellants are bound by the statutory claim which they required to file as a precedent to the maintenance of an action against a city and allegations of the petition must comply with the statements made in their claim. This rule is wellstated in Adams v. City of Arkansas City, 188 Kan. 391, 362 P.2d 829, where it is said and held:

'The section of the statute applicable to a decision herein is G.S.1959 Supp. 12-105. It provides in part as follows:

"No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: * * *'

'In actions of this nature the appellants are bound by the statutory claim which they are required to file with the city clerk pursuant to 12-105, supra, as a condition precedent to the maintenance of any action against a municipality, and their rights of recovery are based upon such claim. Watkins v. City of El Dorado, 183 Kan. 363, 327 P.2d 877; and Hibbs v. City of Wichita, 176 Kan. 529, 271 P.2d 791. Moreover, to maintain such an action it is incumbent to affirmatively allege in the petition compliance with such condition to state a cause of action. McGinnis v. City of Wichita, 180 Kan. 608, 306 P.2d 127. Here the appellants incorporated the claim in their amended petition by reference, and since it is controlling, the amended petition cannot vary the statements made in their claim. Watkins v. City of El Dorado, supra.' (188 Kan. p. 397, 362 P.2d p. 834.)

In argument on the points now under consideration appellants wholly overlook and ignore the fact that attached to and made a part of the petition was thir notice of claim which, in part, reads:

'THAT the city of Arkansas City, Kansas, during the five months last past has owned and negligently operated, and still owns and negligntly operates a new and defective sewage treatment 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.'

The appellants insist that regardless of the allegations of their petition, which as pointed out includes their claim, any allegations in the answer which refute a charge of...