City of Coleman v. Price

• Citation: 117 S.W. 905
• Parties: CITY OF COLEMAN v. PRICE.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 17 February 1909
• Court: Texas Court of Appeals

117 S.W. 905

CITY OF COLEMAN v. PRICE.^†

Court of Civil Appeals of Texas.

February 17, 1909.

Rehearing Denied March 24, 1909.

Appeal from District Court, Coleman County; John W. Goodwin, Judge.

Action by C. A. Price against the City of Coleman. Judgment for plaintiff, and defendant appeals. Affirmed.

Snodgrass & Dibrell, for appellant. J. C. Randolph, for appellee.

FISHER, C. J.

This is a suit by the appellee, Price, against the city of Coleman for damages on account of a nuisance created and maintained by the city in using and maintaining its dumping ground adjacent to appellee's premises for the purpose of depositing thereon dead animals and other refuse matter collected in the city. A verdict and judgment below were in appellee's favor against the city in the sum of $1,000.

The petition of the plaintiff substantially alleges that he is the owner of a certain tract of land near the city of Coleman, upon which he has his residence and other buildings, and that the city of Coleman purchased 8 6/10 acres of land near and adjacent to his premises for use by it and the inhabitants of the city of Coleman as a garbage and dumping ground for the deposit of dead animals and the refuse and filthy matter accumulated in the city, and that the city has since its purchase negligently and without due care used and caused to be used and permitted to be used the tract of land for that purpose, and that from the garbage, filthy matter, and dead animals so deposited upon this ground the habitable use of the plaintiff's premises has been injuriously affected, the water in his tank, which he used for domestic purposes and for watering his stock, has been poisoned, and that the nuisance has reduced the value of his premises. He alleges the nuisance to be permanent. We find that there is evidence which substantially supports these averments. The case was tried and disposed of below on the theory that the city could only be held liable in the event it was guilty of negligence in creating or maintaining the nuisance; and, with this theory of the case in view, appellant complains of the action of the court in overruling certain demurrers which attack the petition on the ground of the insufficiency of averments in setting out the acts of negligence relied upon. The petition does in a general way allege that the nuisance was created and maintained by and through the negligence of appellant, and sets out certain things done and suffered to be done by the city from which the nuisance resulted. If it could be conceded that it was necessary for negligence to be shown in order to hold the city liable, we are not prepared to agree with the appellant that the petition was not sufficient in averring that fact. The petition does state that the city negligently and without due care used and permitted to be used the land so acquired by it as garbage ground, and then states that such use consists of placing upon it dead animals and other offensive matter, and goes on then to charge what effect this had upon the plaintiff's premises and the habitable enjoyment thereof. But the case as made by the petition, and, for that matter, also by the evidence, goes beyond the question of negligence. The city in its use of the premises created and maintained a nuisance, and that was by a deposit upon its garbage ground of dead animals and other offensive refuse matter adjacent to the plaintiff's premises, which the evidence shows affected the habitable use of the premises and the value thereof, and injured the water in his tank. If this is true, the nuisance arises from the act and not from the manner in which it is done, and, if by the averments of the petition an actionable nuisance is alleged, the demurrers were properly overruled, although there was no allegation of negligence, and the city could be held liable, provided the act that occasioned the nuisance arose from some work or duty performed by the city in its private or corporate capacity, as distinguished from the exercise of a governmental function.

It is held in Ostrom v. City of San Antonio, 94 Tex. 524, 62 S. W. 909, that the city in removing garbage and refuse matter from its streets and dumping it upon its garbage grounds selected by it is engaged, not in a governmental, but a corporate, duty, and could be held liable for a willful or negligent performance of that duty which resulted in injury to another. If the city is merely exercising a corporate power, one intended for the private advantage of that locality and its inhabitants, and by its wrongful or negligent conduct inflicts damage, it would be held liable, as would be an individual or private corporation. City of Galveston v. Posnainsky, 62 Tex. 127, 50 Am. Rep. 517; City of Ft. Worth v. Crawford, 74 Tex. 406, 12 S. W. 52, 15 Am. St. Rep. 840; Ostrom v. City of San Antonio, supra. In the latter case the court in commenting upon Ft. Worth v. Crawford, 64 Tex. 202, 53 Am. Rep. 753, which was finally affirmed in 74 Tex. 406, 12 S. W. 52, 15 Am. St. Rep. 840, says: "We...