City of Corsicana v. King

• Decision Date: 23 February 1928
• Docket Number: (No. 650.)
• Citation: 3 S.W.2d 857
• Parties: CITY OF CORSICANA v. KING et al.
• Court: Texas Court of Appeals

3 S.W.2d 857

CITY OF CORSICANA v. KING et al.

(No. 650.)

Court of Civil Appeals of Texas. Waco.

February 23, 1928.

Rehearing Denied March 15, 1928.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Suit by A. W. King and others against the City of Corsicana. From a judgment for the plaintiffs in separate amounts, defendant appeals. Reversed and remanded.

Callicutt & Upchurch and Taylor & Howell, all of Corsicana, for appellant.

Richard & A. P. Mays, of Corsicana, for appellees.

GALLAGHER, C. J.

This suit was instituted by A. W. King, C. E. King, and J. L. Garvin, appellees herein, against the city of Corsicana, a municipal corporation, appellant herein, to recover damages alleged to have been sustained by them by reason of depreciation in value of their improved lands and personal inconvenience and discomfort suffered in the occupancy of the same, all of which they alleged was caused by the action of appellant in discharging sewage in Post Oak creek, a water course running along or near their said lands. They alleged that said sewage was of such character and was discharged in such quantities as to constitute a nuisance. Appellees joined in a prayer for the abatement of such nuisance. The pleadings of the parties, so far as necessary to the consideration of the issues of law hereinafter discussed, will be recited in connection with each such issue.

The case was submitted to a jury on special issues. Based on the answers of the jury thereto the court rendered judgment in favor of appellee A. W. King for damages in the sum of $4,175, in favor of appellee C. E. King in the sum of $1,500, and in favor of appellee J. L. Garvin in the sum of $1,600, and in favor of all said appellees permanently enjoining, prohibiting, and restraining appellant, city of Corsicana, its officers, agents, servants, and employees, "from maintaining or continuing the nuisance resulting in the pollution of Post Oak creek." Said judgment is here presented for review.

Opinion.

The city of Corsicana, a municipal corporation, installed a sewer system and began to discharge sewage therefrom into Post Oak creek about 27 years before the time of trial. For many years such sewage was discharged into said creek in its raw state without any attempt at treatment of any kind. Later a sewage disposal plant was installed for the purpose of treating such sewage and neutralizing its offensive and deleterious properties. On or about April, 1925, said plant was materially enlarged and improved. Appellees owned their respective tracts of land in severalty. They alleged that the pollution of said creek produced offensive and obnoxious odors which spread over their said lands and invaded their respective homes situated thereon; that millions of mosquitoes bred therein and swarmed over their properties and into their homes; that as a result of said nuisance their lands had been decreased in value at least 50 per cent., and that the comfortable enjoyment of their homes had been destroyed thereby. Each appellee alleged the amount of land owned by him and sought damages for the depreciation thereof and for inconvenience and discomfort in the occupancy of his home situated thereon. They all, however, joined in the allegation that said nuisance was one which could be abated, and in a prayer for a permanent injunction requiring appellant to abate the same. Appellant filed a plea in abatement alleging a misjoinder of parties and causes of action. The trial court overruled the same, and such action is presented as ground for reversal. The case of Jung v. Neraz, 71 Tex. 396, 398, 399, 9 S. W. 344, was a suit by a father and two or more adult sons to enjoin as a nuisance the establishment of a cemetery on land in close proximity to their homes. While the title to the land occupied was in the father, his sons maintained separate dwellings thereon and occupied the same with their respective families. Apparently each of the complainants used water from a separate well thereon. The court sustained a special exception on the ground of misjoinder of parties. The Supreme Court in reversing such action said:

"Each and all of the appellants were in possession of the land and premises to be injuriously affected by the proposed location of the cemetery, residing thereon and using water from the wells situated thereon. Each had the right to the enjoyment of his possession, and all had a common interest in protecting their possessions against an act that `worketh hurt, inconvenience or damage' thereto. We think there was no misjoinder of parties plaintiff, and that the court erred in sustaining the second special exception."

The case of Teel v. Rio Bravo Oil Co., 47 Tex. Civ. App. 153, 104 S. W. 420, was an action for injunction to restrain the pollution of a stream and to recover damages to certain lands resulting therefrom. A part of the lands involved were owned by all of the complainants in common, but two of them each owned tracts of land so involved in severalty. These two complainants, in addition to joining the other complainants in asking for an injunction and in seeking to recover damages for injuries resulting to the lands held in common by reason of the pollution of said stream, also sought to recover damages resulting therefrom to their respective tracts held in severalty. The trial court sustained an exception in so far as recovery for damages to said lands held in severalty was concerned, and the owners thereof assigned error. The Court of Civil Appeals in disposing of said assignment, at page 424 (47 Tex. Civ. App. 162), said:

"We think the trial court erred in this ruling. All of the plaintiffs have a common complaint against the defendants for an injury of the same kind inflicted by the same acts, and they would have the right to join in a suit for injunction to restrain the commission of the acts complained of if none of them owned any of the lands in common. In Strobel's Case [Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643] this was expressly decided. They being entitled as individual owners to join in the suit for injunction to protect the land held by them in severalty from the injury complained of, it would, we think, necessarily follow that in such suit they could also assert their claim for damages suffered by them individually by reason of such injury. There can be no reason why they should not be allowed in this suit to adjudicate all of their claims against the defendants growing out of the alleged wrongful acts of which complaint is made and against which the injunction is sought. This holding is, we think, required by the rule against a multiplicity of suits."

The distinguishing feature of the case at bar is that injunctive relief, a matter of exclusive equitable cognizance, was sought, and that appellees all joined in seeking the same. In this respect this case differs from the case of Hunt v. Johnson, 106 Tex. 509, 510, 171 S. W. 1125, and other similar cases cited by appellant, and renders the rule announced in those cases inapplicable herein. The trial court did not err in overruling appellant's plea in abatement. Jung v. Neraz, supra; Teel v. Rio Bravo Oil Co., supra; Strobel v. Kerr Salt Co., supra; Edinburg Irr. Co. v. Ledbetter (Tex. Civ. App.) 247 S. W. 335, 343, 344, and authorities there cited; G. H. & S. A. Ry. Co. v. Dowe, 70 Tex. 5, 7-11, 7 S. W. 368; Supreme Lodge v. Ray (Tex. Civ. App.) 166 S. W. 46, 49; American Smelting & Refining Co. v. Godfrey (C. C. A.) 158 F. 225, 226, par. 7 of syllabus, 14 Ann. Cas. 8; Cloyes v. Middlebury Elect. Co., 80 Vt. 109, 66 A. 1039, 11 L. R. A. (N. S.) 693; State v. Sunapee Dam Co., 72 N. H. 114, 55 A. 899; Pomeroy's Eq. Juris. (4th Ed.) pars. 245, 255, 257, and 269.

Appellant requested the court to charge the jury peremptorily to return a verdict in its favor on the ground that the evidence showed as a matter of law that it had acquired a right to discharge the sewage from its sewer system into Post Oak creek by prescription prior to the institution of this suit. The refusal of the court to do so is presented as ground for reversal. This suit was instituted on the 15th day of May, 1924. Appellant pleaded that it installed its sewer system and discharged sewage therefrom into Post Oak creek more than 10 years before the institution of this suit, and that it had acquired a right to do so by prescription. The testimony showed that appellant had caused or permitted the sewage from its system to be discharged into said creek for more than 10 years before the institution of this suit; that said sewage prior to about the year 1917 was discharged into said creek in its raw state; that about the year 1917 a sewage disposal plant was erected at or about the place of discharge; that continuously thereafter an effort had been made to treat said sewage in a modern, scientific manner for the purpose of deodorizing it and rendering it innocuous; that appellant's said plant was enlarged and improved about April 15, 1925. There is testimony tending to show that from May 15, 1922, two years before the institution of this suit, to the time of trial, the operation of said respective plants was inefficient and had failed to accomplish the purposes intended, and that the sewage discharged therefrom into said creek created a nuisance therein extending from said disposal plant down to and beyond the lands of appellees.

There was evidence tending to show that the population of the city of Corsicana had greatly increased about 1923 as the result of the discovery of new oil wells in Navarro county, and that there was a corresponding increase in the amount of sewage. There was also testimony tending to show that frequent complaint was made before the city commission about the condition of Post Oak creek on account of the sewage discharged through and from the disposal plant, and that the complainants were assured that the condition so...