City of Honey Grove v. Mills
| Decision Date | 22 November 1921 |
| Docket Number | (No. 2449.) |
| Citation | 235 S.W. 267 |
| Parties | CITY OF HONEY GROVE v. MILLS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Fannin County; Ben H. Denton, Judge.
Action by Haymon Mills against the City of Honey Grove. From judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.
The appellant, a municipal corporation, acquired by purchase on March 12, 1918, a sewerage system, and operates the same. Prior to that time it had been owned and operated by certain private individuals, who installed and finished the plant in 1911. Appellee owns a tract of land of 68 acres, where he resides with his wife and two adult daughters. The land is situated outside of the city limits and one-half mile northwest of the septic tank, which is located within the city limits. The septic tank receives the sewage; and the contents are later, through means of a drainpipe, conveyed to a branch which is near the tank and the waters of which run in a northwesterly direction. This branch extends to, through, and beyond appellee's farm. The appellee's house is situated about 150 yards distant from this branch running through his farm. Appellee and others executed a written instrument authorizing the original owners of the sewerage system to use the branch as a conveyor of the contents of the septic tank. This suit is brought by the appellee to recover damages as well to his land as for the physical and mental discomforts of himself and his family, alleging that such damages were occasioned by the city's maintaining a nuisance in the construction and in the operation of its sewerage system. The defendant answered by demurrer, general denial, statute of two years' limitation, and estoppel. The case was submitted to the jury on special issues, and in accordance with the verdict of the jury the court rendered judgment for the plaintiff for damages to the land and for personal damages. The judgment further enjoined the city from a negligent operation of the plant.
The findings of the jury are:
(1) "Plaintiff and his family have been personally annoyed and discomforted since March 12, 1918, in the use and enjoyment of their home, by disagreeable smells and odors produced or emanating from the sewage plant," in the sum of $800; (2) "that the plaintiff's land has been damaged by defendant's sewage plant or system since March 12, 1918," in the sum of $1,200; and (3) that the sewerage plant by the use of ordinary care can be operated so that it will not be a nuisance.
The evidence establishes that the septic tank is a permanent structure, with concrete base and walls of approved mechanical construction and the necessary devices. The evidence is conflicting as to the emission of odors and disagreeable smells of the substances that flow in the branch in question. The evidence goes to show that the alleged discomforts to appellee of disagreeable odors and of deposit of fecal matter on his land were recurring conditions existing at certain seasons of the year and due entirely to the manner of operating the plant.
A. P. Parks, of Paris, and Cunningham, McMahon & Lipscomb, of Bonham, for appellant.
B. B. Sturgeon, of Paris, and Thos. P. Steger, of Bonham, for appellee.
LEVY, J. (after stating the facts as above).
The plaintiff sues in his own individual capacity for personal damages for annoyance and discomfort suffered "by plaintiff and his family" through odors and disagreeable smells occasioned by the negligent operation of the plant. Plaintiff also sues for damages to his land, alleging its depreciated value resulting from the construction and presence of the sewerage plant and through negligent operation of the same.
Appellee offered evidence, and appellant excepted to its introduction, of the sickness of his daughters from chills and fever and malaria, and that one of them had a congestive chill, and of their personal discomfort due to the smells and odors of the contents from the septic tank as conveyed on the branch. And the court submitted the following issue to the jury:
It is not believed that evidence offered as to sickness and discomforts in the home to the family occupying it, as a result of the operation of the sewerage plant, was immaterial and inadmissible for any purpose in the case as pleaded. Such conditions enter into and affect and make greatly undesirable the use of the home as such so long as the nuisance, through negligent operation of the sewerage plant, remains unabated. Such existing conditions, through operation of the sewerage plant, affecting the use of the home as they do, may, if a permanent nuisance, properly be an element of permanent damages, or, if a temporary nuisance, the basis of special damages to the land on which the home is located. Ry. Co. v. Church, 108 U. S. 317, 2 Sup, Ct. 719, 27 L. Ed. 739. And the plaintiff would not be debarred from proving that he and his wife suffered discomforts, annoyances, and sickness by reason of such odors, as bearing upon special damages to himself and his wife. But the court committed serious error, in respect to this evidence, in authorizing the jury to consider it in measuring personal damages to the plaintiff to the extent that the instruction reached. If the court had gone no further than asking the question No. 2. as done, as to amount of damages that should be awarded for the injury to the plaintiff, there probably would have been no error. The court, though, in connection with and as a part of the question, further instructed the jury:
"You will take into consideration the annoyance and discomfort, if any, which the plaintiff and his family have suffered."
The jury would reasonably understand by the instruction as a whole that in awarding the plaintiff personal damages, they were authorized and even...
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