Byrom v. The Little Blue Valley Sewer Dist.

• Decision Date: 25 April 2000
• Citation: 16 S.W.3d 573
• Parties: (Mo.banc 2000) . Robert L. Byrom, et al., Respondents, v. The Little Blue Valley Sewer District, et al., Appellants. Case Number: SC82039 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

16 S.W.3d 573 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Robert L. Byrom, et al., Respondents, v. The Little Blue Valley Sewer District, et al., Appellants.

Case Number: SC82039

Supreme Court of Missouri

Handdown Date: 04/25/2000

Appeal From: Circuit Court of Jackson County, Hon. Jack E. Gant

Counsel for Appellant: Spencer J. Brown, Brett C. Coonrod and Thomas F. Gordon

Counsel for Respondent: Jimmie D. James and M. Ellen Bigge

Opinion Summary:

Certain residents of Atherton in Jackson County sued Little Blue Valley Sewer District for odors, alleging temporary nuisance in tort for personal injuries and taking in inverse condemnation for property damage. The trial court awarded compensation for physical suffering and loss of the use and enjoyment of their property, based on inverse condemnation as opposed to personal injury tort.

REVERSED.

Court en banc holds:

By emphasizing their property damage, amending their pleadings to conform to an inverse condemnation case, and disclaiming negligence and sovereign immunity, the residents abandoned their nuisance claim for personal injury.

When private property is damaged by nuisance operated by an entity with power of eminent domain, the remedy is inverse condemnation. The Constitution provides that property shall not be damaged for public use without just compensation. Where land is temporarily taken or injured, the measure of damages in not the market value but what the property is fairly worth for the time it is injured. A calculation of damages is also affected by whether the odors constituted a partial taking of property.

The residents offered no evidence about the value of their property. The court erroneously applied the law to award the residents damages for their physical suffering and loss of use and enjoyment of their homes, while their nuisance-based inverse condemnation claim only seeks compensation for property rights injury, which is measured by its effect on the market or rental value of their property.

Opinion Author: Ronnie L. White, Judge

Opinion Vote: REVERSED. All concur.

Opinion:

The Little Blue Valley Sewer District (Sewer District) appeals the judgment of the trial court awarding damages to Robert L. Byrom and other residents of the Atherton community (Residents) in their suit for nuisance and inverse condemnation. The Sewer District claims the Residents' nuisance suit was barred by sovereign immunity. It also claims that even if the residents were entitled to recover for inverse condemnation, the trial court erred in computing damages. Reversed.

I. BACKGROUND

The Sewer District is a political subdivision of the State of Missouri, created, existing, and operating under water pollution provisions of chapters 204 and 644, RSMo. The Sewer District has operated a wastewater treatment plant in Jackson County since 1985, approximately two miles from Atherton, Missouri. Raw industrial and residential sewage, consisting in part of human waste from more than 300,000 people, flows into the plant. Some of the sewage is "digested" by microscopic organisms in aeration clarification basins, yielding clean water that is returned to the Missouri River and sludge. The sludge is dried out in a decant tank and burned in an incinerator at the plant.

The Residents all have lived, for varying lengths of time, within two miles of the plant since it opened. They and other non-party residents testified at trial about the foul odors produced by the plant. They smelled rotten eggs from the hydrogen sulfide emitted by the sewage, sulfur from the sulfur dioxide in smoke emitted by the incinerator, ammonia, and smells described as burnt feathers, an overused outhouse, and chemical smells. They testified they experienced some or all of the following physical effects caused by these odors: nausea, headaches, loss of sleep and appetite, runny noses, and watery and itchy eyes. Due to the unpredictability of the odors, the Residents also lost the use and enjoyment of their homes because they often could not engage in outdoor activities or invite guests to their homes for outdoor socializing. While the Residents were not constantly bothered by the odors, the trial court found most suffered these injuries between twelve and twenty days each month they lived near the plant.

The Residents called frequently to the plant and the Missouri Department of Natural Resources (MDNR) to complain between 1985 and trial. During that time, MDNR issued numerous notices of excess emission because the strength of the odor violated state clean air regulations. MDNR also cited the Sewer District multiple times for violations of these regulations. At different times and to varying degrees, multiple parts of the plant caused odor problems, including the intake area, peak flow clarifier, sludge holding tank, decant tank, and incinerator. A review of the trial transcript also shows that before construction the Sewer District did not expect odor to be a problem for its neighbors. Once it realized a problem existed, the Sewer District believed it could be solved. The Sewer District regularly assured the Residents and the MDNR there would be no odor problem and that it would fix the plant to stop the odors. It also consistently modified and replaced the equipment and capabilities of the plant in attempt to stop the odors.

The Residents sued the Sewer District in 1994. They brought a temporary nuisance claim for general damages and partial and total taking claims in inverse condemnation. In their petition, they alleged the Sewer District negligently operated the plant in a dangerous condition. Thus, they appeared originally to have intended to litigate a tort claim for their personal injuries under section 537.600.1, RSMo 1994, in addition to a condemnation claim for their property damage. The trial court found the plant was in a "dangerous condition at the time of the injury due to offensive, noxious and potentially dangerous emissions emanating from defendant's plant." It found the Residents' physical injuries and their loss of the use and enjoyment of their homes were "directly attributable and resulted directly from the dangerous condition of defendant's treatment plant." The trial court also found the dangerous condition created a reasonably foreseeable risk of injury of the kind incurred and the Sewer District knew of the dangerous condition in time to have taken measures to protect against it. It never found, however, the Sewer District acted negligently, nor do the Residents make any such claim on appeal.

The trial court awarded all the Residents who suffered physical injuries from the odors per diem compensation for their physical suffering and loss of the use and enjoyment of their property. It appears the award was based on inverse condemnation, as opposed to a personal injury tort, because the trial court concluded, "the doctrine of sovereign immunity is inapplicable to plaintiffs' claim," which the Residents reiterate on appeal. It also concluded the Residents amended their pleadings at the end of trial to rely exclusively on inverse condemnation. This conclusion seems consistent with the position of the Residents on appeal that they brought a nuisance claim only for the loss of use and enjoyment of their property caused by the odors. On appeal, the Residents disclaimed that sovereign immunity or negligence mattered to their claim for inverse condemnation. They also explicitly asserted that whether the sewage plant was negligently operated in a dangerous condition was immaterial to their inverse condemnation claim. Finally, at oral argument, counsel for the Residents admitted he abandoned a negligence suit based in tort before trial began in this case.

By emphasizing their property damage, amending their pleadings to conform to an inverse condemnation case, and expressly disclaiming negligence and sovereign immunity, we find the Residents abandoned their nuisance claim for personal injury both at trial and on appeal. We also find it significant the trial court, while finding a dangerous condition, notice, foreseeablility, and causation under section 537.600.1, never found the Sewer District acted negligently. Accordingly, we do not review the judgment of the trial court as one awarding damages for personal injury based on tort principles. Instead, we review it as one awarding damages for property injury based on principles of inverse condemnation. The judgment of the trial court will be sustained "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law."¹

II. NUISANCE CLAIMS AGAINST A PUBLIC ENTITY

Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his property. The focus is defendant's unreasonable interference with the use of and enjoyment of plaintiff's land . . . The unreasonable use element of nuisance balances the rights of adjoining property owners.²

The Sewer District does not contest their plant constituted a nuisance, so we accept the implicit finding by the trial court that the plant did constitute a nuisance. In general, plaintiff in a successful nuisance case can recover the diminished value of its property, "for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment and occupancy of his home, as well as for any actual injury to his health or property...