City of Collinsville v. Brickey

• Decision Date: 03 November 1925
• Docket Number: Case Number: 15462
• Parties: CITY OF COLLINSVILLE v. BRICKEY.
• Court: Oklahoma Supreme Court

1925 OK 885

242 P. 249

115 Okla. 264

CITY OF COLLINSVILLE v. BRICKEY.

Case Number: 15462

Supreme Court of Oklahoma

Decided: November 3, 1925

Syllabus

¶0 1. Nuisance--Private Person May Abate.

Under section 7879, Comp. Stats. 1921, a private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise.

2. Municipal Corporations -- Pollution of Stream by Sewage--Liability to Riparian Owner.

Where a municipal corporation discharges sewage into a river or creek, polluting the water of the stream, causing it to become foul and impregnated with noxious and poisonous substances, rendering it unfit for domestic or other uses, and thereby creating and maintaining a nuisance, which is detrimental to the health, comfort and repose of a lower riparian owner and diminishes the value or destroys an established business of such riparian owner, such municipal corporation is liable for damages arising from the maintenance of such nuisance.

3. Same -- Ordinances -- Extra Territorial Effect.

Municipal charters or ordinances can have no extra-territorial force or effect and this is true even in cases where a municipality may have acquired property outside of its geographical limits.

4. Same -- Constitutional Limitation to Powers.

The Constitution has authorized the defendant city to form a charter for its own government and this limitation implies that its authority is restricted to its own officers and the inhabitants within its territory or persons temporarily therein and that it cannot extend its powers or the authority of its officers to matters outside of its territory.

5. Damages--Anticipated Profits -- Exception to Rule.

As a general rule, anticipated profits of a commercial, or other like business, are too remote, speculative and dependent upon uncertainties and changing circumstances to warrant a judgment for their loss. The exception to this rule is that the loss of profits from the destruction or interruption of an established business may be recovered where it is made reasonably certain by competent proof what the amount of the loss actually is; and such damages must be established, not by guesswork, conjectures, uncertain estimates, or mere conclusions, but by tangible facts from which actual damages may be logically and legally shown or inferred. Record examined, and held, this cause comes within the exception.

6. Appeal and Error--Verdict Supported by Evidence.

Where there is any evidence reasonably tending to support the verdict of the jury, such verdict will not be disturbed upon appeal.

Commissioners' Opinion, Division No. 5.

Error from District Court, Tulsa County; Z. I. J. Holt, Judge.

Action by Gertrude Brickey, doing business as the North Lane Dairy, against the City of Collinsville. Judgment for plaintiff, and defendant brings error. Affirmed.

Biddison & Campbell and P. L. Long, for plaintiff in error.

Frank Ertell and Humphrey & Campbell, for defendant in error.

THOMPSON, C.

¶1 This action was commenced in the district court of Tulsa county, Okla., by Gertrude Brickey, defendant in error, plaintiff below, against the city of Collinsville, a municipal corporation, plaintiff in error, defendant below, to recover damages for injury to her dairy business by polluting the stream running through her property, caused by the discharge of sewage from said city into said stream.

¶2 The parties will be referred to in this opinion as plaintiff and defendant, as they appeared in the lower court. The petition, in substance, alleges that the plaintiff was the owner in fee simple of 60 acres of land in Tulsa county, Okla., and that a long time prior to the filing of this action she was the owner of, operating and conducting a dairy, known as the North Lane Dairy, on her lands, and owned and milked approximately 60 high-bred cows; that she sold the products of said dairy in the city of Tulsa at a monthly profit of $ 400 net; that she had employed many years of hard labor in acquiring said cows and breeding them up to a high standard, and that she owned approximately 44 head of high-bred heifers, which would have become milch cows in a short time, which would have increased the products and value of her dairy; that she raised and produced hogs on said farm, from which she received a substantial net income; that there was a fresh water creek fed by springs flowing through and across the lands of plaintiff, and there were no good wells on the farm, and she had no other means of getting water for her cows and other animals, and that she used the water from the creek for said purposes; that the defendant city had laid and maintained a sewer system, through which the waste, filth and sewage of the city were conveyed and discharged into said creek near the property line of the plaintiff, which polluted, poisoned and made unfit the water of said creek; that she had been compelled to quit using the water for her dairy herd and other animals; that her dairy had been condemned by the health department of the city of Tulsa, the place in which she marketed her milk, and she had been forbidden to sell the milk from said dairy in the city of Tulsa; that she had no other place to move said dairy, and was not financially able to purchase another farm, and she was compelled to sell her cows and heifers and other dairy property, to her damage in the sum of $ 12,000. There are other allegations and claims of damage to her homestead, but they were dismissed by the plaintiff, and the cause proceeded to trial upon the claim for damages to her dairy business and to her animals.

¶3 The defendant answered by way of general denial, but admitted that the plaintiff was a resident of Tulsa county, and that the defendant was a municipal corporation of the first class, created and existing under the laws of the state of Oklahoma, and that said corporation was located in Tulsa county, Okla. An amendment to the amended petition was filed on the 8th day of December, 1923, by the plaintiff, in which, in substance, it was alleged that the defendant corporation had actual and positive knowledge of its acts complained of by plaintiff, and that the manager and other officers of said defendant knew that said wrongful acts of defendant were resulting in injury to the plaintiff, as charged in her petition, and knew such facts prior to the time she was compelled to discontinue her business, and within 30 days thereafter; that all the matters had been discussed among themselves and with the plaintiff and others representing her within 30 days after the time the plaintiff was compelled to discontinue her business and to sell her cows, and that she and her husband, who was acting for her at the time, advised said officers that they would have to institute action against the city of Collinsville to recover any and all damages sustained by reason of the wrongful acts charged against the defendant in her petition; and they admitted the seriousness of the injury done to her and advised her not to permit the officers of the Health Department of the state of Oklahoma to see the conditions existing, as it would result in the Health Department of the state causing the city of Collinsville to discontinue the operation of the sewage system, and with full knowledge of all conditions, still continued to discharge said sewage into said stream to the damage of plaintiff, as alleged in said petition; and that said defendant had waived any right to further notice, as it had full knowledge of all the facts, and that the giving of said notice would have been a useless act and would have served no legal or beneficial purpose in any way, and would not have conveyed any additional information to the defendant, or its officers or business manager, other than that they had already, and that they knew that said action was to be commenced and advised her to bring the action for the recovery of damages, which she had sustained; that her attorney wrote letters to the defendant, its officers, and business manager, within 30 days after the commission of the wrongful acts complained of herein, which letters were acknowledged and answered by the defendant; that the said wrongful acts of the defendant, from which the injury was sustained by the plaintiff, were not suffered by any act committed within the corporate limits of the city of Collinsville, but were committed on the farm of the plaintiff, which was some distance from the city, and that no provision of the charter with reference to notice has any application in this case. The defendant answered this amendment to the amended petition by way of general denial.

¶4 The cause proceeded to trial upon these issues, and at the close of all the evidence, the jury returned its verdict in favor of the plaintiff in the sum of $ 10,000. Motion for new trial was filed, heard, and overruled, exception reserved by the defendant, and judgment was pronounced upon the verdict of the jury by the court for the sum of $ 10,000 and her costs, to which the defendant excepted, gave notice of appeal and the cause comes regularly upon appeal by defendant from said judgment for review by this court.

¶5 The attorneys for defendant set up 26 assignments of error in their petition in error, but content themselves by arguing the same upon three propositions: First, that the plaintiff failed to give the notice to the defendant, as required in section 9, article 18, of the charter of the city of Collinsville, Okla.; second, that the judgment for the plaintiff for the alleged compelled discontinuance of the business of the plaintiff, by virtue of the alleged condition of the creek flowing through the plaintiff's farm, caused by the pollution of the stream by the discharge of the sewage from the city, was wrong and was barred by the statute of limitation; and third, that the judgment of the court was based upon anticipated profits, and that the pleadings and evidence did not justify the judgment in this case.

¶6 In a...