City of Austin v. Bush

• Citation: 260 S.W. 300
• Decision Date: 23 January 1924
• Docket Number: (No. 6692.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: CITY OF AUSTIN v. BUSH.
• Court: Court of Appeals of Texas

260 S.W. 300

CITY OF AUSTIN v. BUSH.

(No. 6692.)^*

Court of Civil Appeals of Texas. Austin.

January 23, 1924.

Rehearing Denied February 27, 1924.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by D. A. Bush against the city of Austin. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. Bouldin Rector, City Atty., of Austin, for appellant.

White, Wilcox, Graves & Taylor, of Austin, for appellee.

Statement.

BLAIR, J.

Appellee, D. A. Bush, brought this suit against the city of Austin, appellant, for the recovery of damages alleged to have been sustained on account of the depreciation in the value of his property by virtue of the presence of certain noxious gas, odors, etc., caused by the construction and operation of a sewage disposal plant by appellant near his premises, which he used as a homestead for himself and family. Appellee's petition alleged that the sewage disposal plant so constructed and operated by appellant emitted noxious, foul, and unwholesome gases, vapors, and odors, such as would cause discomfort and distress to persons of ordinary sensibilities and ordinary tastes and habits, and that they so affected plaintiff and his family, thereby constituting a nuisance, and by reason thereof plaintiff's home or residence has been greatly damaged and the value thereof greatly depreciated in the sum of $5,000.

Appellant answered by general and special exceptions, and by a general denial.

The case was tried to a jury upon special issues, and the trial court based the judgment rendered for appellee upon said verdict.

Appellant has duly perfected its appeal in the manner provided for municipal corporations.

Opinion.

We agree with the conclusion asserted in appellant's brief that this appeal involves, generally, but the one question: Did the evidence create the issue of fact as to whether the nuisance complained of by appellee was permanent or temporary in its character so as to necessitate the submission of the issue to the jury?

The following are the special issues propounded to the jury, and their answers thereto:

"Question No. 1: Do foul and noxious gases, vapors, or odors emanate from the sewage disposal plant operated by the city of Austin? Answer: Yes.

"Question No. 2: Do such gases, vapors, or odors (if any) reach the premises of the plaintiff in such manner as to disturb and annoy the plaintiff and his family? Answer: Yes.

"Question No. 3: If you answer question No. 2 in the affirmative, then answer this question: Would such gases, odors or vapors so disturb and annoy persons of ordinary sensibilities and ordinary tastes and habits located as the plaintiff? Answer: Yes.

"Question No. 4: What would be the reasonable market value at this time of plaintiff's lots and improvements should the operation of the sewage disposal plant permanently cease? Answer: $5,600.

"Question No. 5: What is the reasonable market value at this time of plaintiff's lots and improvements with the sewage disposal plant continuing to be operated at the place where it is now located? Answer: $3,350."

The answers of the jury are sufficiently supported by the evidence.

Appellant presented the following written objections to questions 4 and 5 submitted by the trial court, and moved that an additional issue be submitted to the jury:

"(2) That both of said questions are predicated upon the assumption by the court that the proof has established, as a matter of law, that the operation of the sewage disposal plant by defendant is a nuisance permanent in its character, and the damage, if any, to plaintiff resulting or incident to the operation of said plant would be of a permanent nature, whereas the defendant has offered proof to show that said plant can, and in good faith will, be improved and operated in the future, so as not to permit noxious gases, odors or vapors to emanate therefrom, and that defendant has already voluntarily begun and has progressed to a great extent toward remedying any nuisance that may have existed or that may now exist on account of such operation; and, at the least, that the testimony in this case has created the issue of fact to be submitted to the jury, as to whether, if any nuisance exists by the operation of said plant, same is or will be of a permanent or of a temporary character.

"In this connection, defendant respectfully suggests to and moves the court that an additional question be submitted to the jury, containing the issue as to whether such nuisance, if any, is permanent or temporary in its character, and that the other questions contained in the general charge should be reformed so as to properly conform to such additional question.

"(3) That said questions are prejudicial to defendant and misleading to the jury, in that they would be taken to assume that the mere continued operation of the sewage disposal plant would be such a nuisance as to affect permanently the market value of plaintiff's premises, irrespective of whether or not same would or might be operated so that no noxious vapors or odors would reach plaintiff's premises in such manner as to disturb and annoy him and his family."

This objection and motion were overruled by the court.

In addition to the above objections and suggestion, appellant requested the court to submit its two special charges to the jury, which, omitting the formal parts, are as follows:

Special charge No. 2: "If you answer questions 1, 2, and 3 of the general charge in the affirmative, then answer this question: Can such gases, odors, or vapors be prevented by defendant from so disturbing and annoying plaintiff and his family during the operation of the sewer disposal plant?"

Special charge No. 3: "If you answer questions 1, 2, and 3 of the general charge in the affirmative, then answer this question: Will such gases, odors, or vapors continue to disturb and annoy plaintiff and his family, as now located, as long as the sewer disposal plant is operated at the place where it is now located?"

These charges were refused by the court.

Appellee takes the position generally that the question involved, as stated by appellant, is not quite so broad, and makes the following counter propositions:

"First: That the evidence was not sufficient to raise the issue that the nuisance was merely temporary.

"Second: That the verdict of the jury was, in effect, a finding upon all facts necessary to entitle plaintiff to recover damages as for a permanent nuisance.

"Third: That the special issues requested by appellant, and through which it sought to have submitted to the jury the character of the nuisance as being permanent or temporary, were incorrect charges, and the court did not err in refusing to give them.

"Fourth: If the findings of the jury in response to the issues submitted by the court were not sufficient to constitute findings that the nuisance was permanent, then (appellant having requested no proper charge submitting the issue) the issue will be deemed to have been found by the court in such manner as will support the judgment."

It is evident, from an examination of the main charge given by the court, that it was submitted in its entirety upon appellee's theory of recovery. It is also evident that in submitting the issues finding the amount of damages sustained, the court assumed as a matter of law that the evidence established a permanent nuisance, if the jury answered the three preceding questions favorable to appellee. Appellee's petition discloses that he brought his suit upon the theory that the nuisance was of a permanent character, and that he was entitled to recover at once and for all time such damages to his premises as had been occasioned by the permanent nuisance alleged. Under this pleading he would not have been entitled to a recovery of such injury as his property had sustained up to that time by reason of a temporary nuisance. Baugh v. Railway Co., 80 Tex. 56, 15 S. W. 587. Appellant simply denied that it was maintaining or operating a permanent nuisance. It introduced proof tending to show that it had abated the nuisance, or that the matters complained of by appellee were occasioned by carelessness of employés or accident, and were therefore of a temporary character. It made the effort above mentioned to have the issue of whether the nuisance complained of was of a permanent or temporary character submitted to the jury. The court refused the request; which action we think undoubtedly was error, if appellant has properly raised the question, and if the evidence is conflicting on the issue of the permanent or temporary character of the nuisance.

The rule is well settled in this state that the measure of damages in case of a permanent nuisance is the depreciation in the market value of the property injured; while the rule is as well settled that the measure of damage in case of a temporary nuisance is the depreciation in the market rental value of the property injured, and such other accrued special damage as may be shown. 13 Michie's Digest, pp. 579-582, and cases cited. Also see each annual of this Digest discussing nuisances; Baugh v. Railway Co., 80 Tex. 56, 15 S. W. 587; Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237.

Having thus stated the case and the propositions involved, we come to a discussion of the main issue raised by this appeal: Was the evidence sufficient to raise the issue that the nuisance was only temporary? Of course, if the evidence is insufficient to raise or support the issue requested, no error can be predicated upon the refusal of the trial court to submit it; to the contrary, it would have been error for the court to have submitted the issues under such circumstances.

We will not undertake to set forth all the evidence relating to the effort on the part of appellant to abate the nuisance, and as to its temporary character, but will state just so much of it as we think necessary to this issue. It may...