Brewster v. City of Forney
| Decision Date | 16 June 1920 |
| Docket Number | (No. 166-3147.) |
| Citation | 223 S.W. 175 |
| Parties | BREWSTER v. CITY OF FORNEY. |
| Court | Texas Supreme Court |
Action by A. L. Brewster against the City of Forney. From a judgment of the Court of Civil Appeals (196 S. W. 636) affirming judgment for defendant, plaintiff brings error. Judgments reversed, and cause remanded to district court.
Bond & Bond, of Terrell, and Woods & Morrow, of Kaufman, for plaintiff in error.
Lee R. Stroud and Wynne & Wynne, all of Kaufman, for defendant in error.
The parties will be referred to as plaintiff and defendant. Plaintiff sued defendant for damages to his property caused by the construction and operation of a sewerage system.
The case was submitted on special issues. There were no preliminary instructions as to the law by which the jury should be guided in answering the issues, 19 in number, but at the end the jury was properly instructed as to the burden of proof. At the request of defendant the court defined a "nuisance" as follows:
"A nuisance is the use of one's own property for the conducting of one's own business in such an unreasonable manner as will, under all the circumstances, unfairly cause real or material damages to another."
Plaintiff requested a charge evidently intended to correct and amplify the above instruction, which charge the court refused to give, and such refusal was approved by the Court of Civil Appeals.
In view of the conclusion we have reached upon the main and controlling issue, determination of the question whether or not the holding of the Court of Civil Appeals was correct is not necessary; therefore we forego any discussion of the assignment which presents it.
On return of the verdict of the jury the court entered judgment for defendant, which action was affirmed by the Court of Civil Appeals of the Fifth District. 196 S. W. 636.
There are presented in the record by proper assignments questions of practice relating to giving and refusing charges and the rejection of evidence, but our view as to the vital issue in the case makes discussion of such questions unnecessary.
In view of the holding of the trial court and the Court of Civil Appeals it becomes necessary to examine all the findings of the jury; as plaintiff in error contends that, construing all the answers of the jury together, he was entitled to judgment in his favor.
For the sake of brevity we will forego copying all the issues submitted, and content ourselves with a paraphrase of all the findings which have a material bearing upon the central and essential issue. Such paraphrase has been made after a most careful examination and re-examination of the issues and answers.
The jury found that Mustang branch was a natural waterway; that sewerage did collect and stand near plaintiff's house; that filthy stagnant water and offensive odors had been arising by reason of operation of the sewer system since 1913; that part of the stagnant water and offensive odors were caused by the operation of the plant, though it was found to be properly constructed and operated; that the stagnant water generated mosquitoes and drew flies to plaintiff's residence; that possibly 40 per cent. of the filth and sewage of the city would have reached to near plaintiff's residence had there been no sewer system (which was, in effect, to find that 60 per cent. reached near to it because of the system); that the construction and operation of the sewer system did not cause any of the sickness in plaintiff's family; that the condition of plaintiff's premises, irrespective of the sewage disposal plant "may have contributed to some extent" to the sickness of plaintiff's family; that the condition of plaintiff's premises, irrespective of the sewage disposal plant, did not cause or contribute to odors about plaintiff's place; that the condition created by the plant made plaintiff's place undesirable as a residence; and that his property was worth $10 an acre less with the sewer system established where it was than it would be if the system was not established and operated where it was.
The inquiry logically next in order is, Did the findings of the jury, in legal effect, amount to a finding that the construction and operation of the sewerage system was a nuisance? But before proceeding to answer that question we deem it proper to say that we agree with the Court of Civil Appeals that the defense sought to be interposed that the work was of a public character and was necessary to be done, and, the plant having been constructed and operated properly, the plaintiff could not recover, but must bear the loss, was not maintainable.
The sewerage plant was not a "public" work in the sense that the city was not responsible for damages arising out of its erection or operation.
As was said by Chief Justice Gaines in White v. City of San Antonio, 94 Tex. 313, 60 S. W. 426:
If the sewerage plant could not be constructed and operated, however compelling the necessity for it, without doing injury to the property of a citizen, then the city, the aggregate of the citizenship, must stand the loss; and the city is bound in law to compensate the citizen for the damage he has suffered by reason of the premises. This is the law of Texas, as it should be. G. C. & S. F., etc., v. Eddins, 60 Tex. 656; G. C. & S. F., etc., v. Fuller, 63 Tex. 467; G. H. & W., etc., v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42; White v. San Antonio, 94 Tex. 313, 60 S. W. 426; Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909; Ft. Worth, etc., v. City of Ft. Worth, 106 Tex. 148, 158, S. W. 164, 48 L. R. A. (N. S.) 994.
The Constitution of Texas and the decisions of her courts reveal a zealous regard for the rights of the individual citizen. Not only will they not permit his property to be "taken" for a public use without compensation, but will not permit it to be damaged unless the citizen is compensated to the extent of such damage. To hold otherwise would be to put upon one citizen a burden which should rest upon the aggregate citizenship, as the direct beneficiary of the public work, the construction and operation of which has damaged the property of one citizen. That great law writer, Mr. Sedgwick, who, in the course of a criticism of the holding of a court of the state of New York in a case similar to the instant case, on the ground that the holding was narrow and technical, said: "The tendency of our legislation in matters of public improvement is undoubtedly to sacrifice the individual to the community."
We return now to consideration of the question, Were the findings of the jury, as above summarized, equivalent to finding the existence of a nuisance?
The case of Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665, was decided in 1856, and the law as therein laid down has been consistently adhered to, and the case has been often cited in the reports of this state and of other states, and by text-writers.
It is held in that case that anything that worketh hurt, inconvenience, or damage, or which is done to the hurt of the lands, tenements, or hereditaments of another, is a nuisance. If one does an act within itself lawful, which being done in that place necessarily tends to damage another's property, it is a nuisance.
It is not necessary that the annoyance should endanger health; it is sufficient if it occasion that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable.
It is well said by Mr. Blackstone that to so hold the law in favor of the citizen is to "closely enforce that exalted rule of gospel morality of doing unto others as we would have them do unto us."
The wholesome and salutary rules of law laid down by a great court...
To continue reading
Request your trial
-
Long v. City of Charlotte
...v. Hehemann, 161 Ky. 523, 171 S.W. 165 (1914); City of Georgetown v. Ammerman, 143 Ky. 209, 136 S.W. 202 (1911); Brewster v. City of Forney, 223 S.W. 175 (Tex.Comm.App.1920); Jacobs v. City of Seattle, 93 Wash. 171, 160 P. 299 In order to recover for inverse condemnation, a plaintiff must s......
-
DuPuy v. City of Waco, A-10644
...property rights are to be protected with all citizens sharing equally in the cost of progress. It was said in Brewster v. City of Forney, 223 S.W. 175 (Tex.Comm.App.1920): 'The Constitution of Texas and the decisions of her courts reveal a zealous regard for the rights of the individual cit......
-
Crosstex N. Tex. Pipeline, L.P. v. Gardiner
...of plaintiff's rights," and only created a nuisance when they diverted destructive waters onto the plaintiff's land. 15 S.W. at 485. In Brewster, the Court explained that the defendant's otherwise-lawful plant was a nuisance only because "the condition created by the plant made plaintiff's ......
-
Brown v. Douglass
...v. McDonnell, 49 App.D.C. 280, 265 F. 432, 435; Campbell v. Holt, 115 U.S. 620, 630, 6 S.Ct. 209, 29 L.Ed. 483; Brewster v. City of Forney, Tex.Com.App., 223 S.W. 175; Home Building Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L. Ed. 413, 88 A.L.R. 1481; Schechter Poultry Corp. v. Uni......
-
"One man's ceilin' is another man's floor": property rights as the double-edged sword.
...States v. Welch, 217 U.S. 333, 339 (1910) (government flooding cutting off an easement requires compensation); Brewster v. City of Forney, 223 S.W. 175, 178 (Tex. Comm'n App. 1920) (odors from sewage disposal plant constitutes a (393) Bormann, 584 N.W.2d at 321. (394) Id. at 320 (citing Pen......