City of Harrisonville, Mo. v. WS Dickey Clay Mfg. Co., 9241.

• Citation: 61 F.2d 210
• Decision Date: 05 October 1932
• Docket Number: No. 9241.,9241.
• Parties: CITY OF HARRISONVILLE, MO., v. W. S. DICKEY CLAY MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

61 F.2d 210 (1932)

CITY OF HARRISONVILLE, MO., v. W. S. DICKEY CLAY MFG. CO.

No. 9241.

Circuit Court of Appeals, Eighth Circuit.

August 5, 1932.

Rehearing Denied October 5, 1932.

Raymond G. Barnett, of Kansas City, Mo. (Allen B. Glenn, of Harrisonville, Mo., on the brief), for appellant.

Leland Hazard, of Kansas City, Mo. (Maurice H. Winger and George J. Winger, both of Kansas City, Mo., on the brief), for appellee.

Before STONE and KENYON, Circuit Judges, and CANT, District Judge.

CANT, District Judge.

The parties will be designated as in the court below, where W. S. Dickey Clay Manufacturing Company was plaintiff, and city of Harrisonville was defendant.

Plaintiff is a corporation organized under the laws of the state of Delaware. Defendant is now, and for several years last past has been, a city of about 2,000 inhabitants in the state of Missouri. A small stream, known as Town creek, flows through or near the northerly line of said city and takes its course westerly and southerly near the westerly line thereof. During some periods, this stream is nearly, or quite dry. Prior to the year 1923, said city had no general sewer system. During said year such a system was installed. Thereby, the sewage of the city was collected and was conveyed for treatment to an Imhoff tank, so-called, which was located near the westerly boundary of said city and closely adjacent to the stream above referred to. For some years past, plaintiff has been the owner of a considerable tract of land lying along the said creek, and, in the main, down stream from said tank. Said land has been, and is, used for pasturage purposes. Said tank is, and has been, only about 60 per cent. efficient in removing offensive matter from the sewage which is conducted thereto, and the effluent from the tank therefore carries about 40 per cent. of the putrescent matter originally in such sewage. Such effluent is discharged into said Town creek and is carried by said creek through and alongside of plaintiff's land. The sewage, so discharged into said creek, fouls the waters of the stream and the banks thereof, and offensive odors constantly arise from such waters and from the foul substances which are deposited along said bank. The introduction of such sewage into said creek renders the waters thereof unfit for drinking by the cattle which are pastured on the land referred to. By the installation of a supplementary tank, the sewage disposal system of said defendant may be so improved that the effluent therefrom would be comparatively harmless and inoffensive.

This suit was brought to obtain injunctive relief against the maintenance of the sewer system and Imhoff tank in their present imperfect state and for damages. Defendant admits that the matters complained of constitute a nuisance, but asserts that the same is permanent in its character; that the court is without power to abate the same; and that plaintiff's only remedy is an action for damages to its land on the theory that present conditions will continue indefinitely in the future. Defendant also claims that its financial condition is such that it cannot install the supplementary system, which is contemplated by the decision of the trial court. It claims also, and specifically, that the award hereinafter mentioned, to plaintiff, of the item of $3,500, on account of the estimated cost of clearing the creek bed and banks, is unwarranted.

The trial court found that something like 100 acres of plaintiff's land have been and are injuriously affected by the offensive matter deposited in said stream; that the maintenance of said plant in the condition in which it has been operated constitutes a temporary nuisance, which may be easily abated; that the rental value of plaintiffs lands has been reduced by said nuisance in the sum of $100 per annum for the period of five years immediately preceding the entry of the decree herein; and that it would cost $3,500 to remove the offensive matter from along the banks of said stream in its course along and through the lands of plaintiff. An injunction was therefore ordered, and it was adjudged that plaintiff recover from defendant the sum of $4,000, of which $500 should be for the diminished rental or usable value of plaintiff's lands throughout the said period of five years, and $3,500 should be the estimated expense of removing offensive matter from the bed and banks of said creek.

The fact that the sewage system and the Imhoff tank in question were installed pursuant to the direction of the governing body of the city does not place them beyond judicial control. Carmichael v. Texarkana (C. C.) 94 F. 561, 570 — 574. Approved in case of same title at 116 F. 845, 849, 58 L. R. A. 911 (C. C. A. 8). Winchell v. City of Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902; Seifert v. City of Brooklyn, 101 N. Y. 136, 139 et seq., 143 et seq., 4 N. E. 321, 54 Am. Rep. 664.

A city is not authorized or justified in so collecting and discharging the sewage therefrom as to cause unnecessary injury to private persons. Carmichael v. Texarkana (C. C.) 94 F. 561; also Id., 116 F. 845, 849, 58 L. R. A. 911 (C. C. A. 8); Jones v. Sewer Improvement District, 119 Ark. 166, 177 S. W. 888; Morse v. City of Worcester, 139 Mass. 389, 2 N. E. 694; Chapman v. City of Rochester, 110 N. Y. 273, 18 N. E. 88, 1 L. R. A. 296, 6 Am. St. Rep. 366; Winchell v. City of Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902; Edmondson et al. v. City of Moberly, 98 Mo. 523, 11 S. W. 990.

The nuisance here in question, being such as might be abated by order of court, is temporary in character, Foncannon v. City of Kirksville, 88 Mo. App. 279, 284; Pinney v. Berry, 61 Mo. 359, 367; Ready v. Mo. Pac. Ry. Co., 98 Mo. App. 467, 470, 72 S. W. 142, and plaintiff is entitled to injunctive relief. Carmichael v. Texarkana (C. C.) 94 F. 561, 571, 573, 574; also Id., 116 F. 845, 849, 58 L. R. A. 911 (C. C. A. 8); Missouri v. Illinois and Chicago District, 180 U. S. 208, and authorities cited at pages 245 — 247, 21 S. Ct. 331, 45 L. Ed. 497; Winchell v. City of Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902; Haskell v. New Bedford, 108 Mass. 208, 216 et seq.

In all cases of nuisance, as well as of other torts, and aside from the right to punitive damages in certain cases, the person sustaining the injury is entitled to recover such sum as will fairly compensate him for all detriment of every kind which he has suffered and which is traceable proximately to the wrong of which he complains. This detriment or injury may often be of various kinds. He is entitled to be made whole. He is not entitled to any excess or profit. In this respect, whatever is right and just should be done.

In cases of permanent nuisance affecting real estate, the measure of damages usually is the difference between the value of the land which is involved immediately before the imposition of the nuisance and the value of the same land immediately after such imposition, having in mind that the conditions are to remain permanent. Pinney v. Berry, 61 Mo. 359, 367; St. Louis Trust Company v. Bambrick, 149 Mo. 560, 569, 570, 51 S. W. 706; Conklin v. City of Des Moines, 184 Iowa, 384, 387, 168 N. W. 874; Foncannon v. City of Kirksville, 88 Mo. App. 279, 284.

In case of a nuisance which is properly classified as permanent, and which affects real estate, if, by the expenditure of money, the property can be restored to substantially the same condition in which it was before the nuisance was imposed, and, if the cost of such restoration would be less than the difference in the values of the property before and after it was affected by the nuisance, then, manifestly, since the question is one of compensation, and of putting the owner in as good a position financially as he was before his property suffered from the nuisance, the true measure of damage would be the cost of such restoration. Seely v. Alden, 61 Pa. 302, 306, 100 Am. Dec. 642; Heath v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 126 Minn. 470, 148 N. W. 311, L. R. A. 1916E, 977.

In cases of temporary nuisance affecting real estate, the rule ordinarily applicable is that the plaintiff is entitled to recover the difference between the rental or usable value of the land as it would be without being subjected to the nuisance, and such value with the lands subject thereto. Pinney v. Berry, 61 Mo. 359, 367, 368; Ready v. Mo. Pac. Ry. Co., 98 Mo. App. 467, 470, 72 S. W. 142; Smith v. Kansas City, etc., Ry. Co., 98 Mo. 20, 25, 11 S. W. 259.

In some cases the foregoing rule would not afford full compensation. Under some circumstances, a temporary nuisance may cause specific damage to buildings or other property. In such cases, the rule of compensation would often require that such damage be repaired or that offensive objects be removed. This, in addition to the recovery of the rental or usable value of the land, might be the obviously practical, prudent, and economical way of restoring the owner of such land to his former condition. In some cases where continuing injury is threatened, it might be necessary to incur expense in abating the nuisance. In such cases, the reasonable cost of such repairs, removal, or abatement might properly be recoverable as a part of the damages actually sustained. Emery v. Lowell, 109 Mass. 197, 201; Shaw v. Cummiskey, 7 Pick. 76, 78; Pinney v. Berry, 61 Mo. 359, 367; Krebs v. Bambrick Bros. Construction Co., 144 Mo. App. 649, 653, 129 S. W. 425; Toebbe v. City of Covington, 145 Ky. 763, 768, 769, 141 S. W. 421; Watson v. Miss. R. P. Co., 174 Iowa, 23, 38, 156 N. W. 188, L. R. A. 1916D, 101. But in no case should a defendant be required to pay more than just compensation. This must always be the limit of the recovery. Therefore, if for special reasons, the necessary expense of such repairs, removal, or abatement would be out of all proportion to the...