City of Lakeland v. Douglass

• Decision Date: 23 July 1940
• Citation: 143 Fla. 771,197 So. 467
• Parties: CITY OF LAKELAND v. DOUGLASS.
• Court: Florida Supreme Court

197 So. 467

143 Fla. 771

CITY OF LAKELAND v. DOUGLASS.

Florida Supreme Court

July 23, 1940

En Banc.

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Action by J. G. Douglass against the City of Lakeland, Fla., a municipal corporation, to recover damages resulting from operation of a sewage disposal plant. To review an adverse judgment, defendant brings error.

Affirmed.

CHAPMAN J., dissenting.

COUNSEL J. P. Marchant, of Lakeland, for plaintiff in error.

John S Edwards, of Lakeland, for defendant in error.

OPINION

BUFORD Justice.

Writ of error brings for review judgment in favor of the plaintiff in an action in which plaintiff sued a municipal corporation for alleged damages resulting from defendant's action in that as is alleged in effect:

That the City of Lakeland has a disposal plant for the disposal of its sewerage and garbage situated on certain described land within the city limits of the City of Lakeland; that through the disposal plant the sewerage from the city passes to its sewerage system; that there is a canal running through sections 4 and 9 in Township 29 South, Range 24 East, and extending to Banana Lake; that there is flowing water running through the canal to the lake; that the municipality, in violation of law and the rights of plaintiff, turned the sewerage of the city through a sewer belonging to the city and running from the disposal plant into that canal; that the sewerage so thrown into the canal runs down the canal into Banana Lake; that the sewerage thus thrown into the canal by the defendant is full of filth and deleterious matter and that the same is cast into the said canal and into the said lake, contaminating the waters of said canal and said lake; that said polluted sewerage settles in the said canal and in the said lake at the mouth of said canal and has been allowed to so settle in said lake at the mouth of the canal until now it is some 3 or 4 feet in depth that the sewerage thrown into said canal and into said lake has poisoned the waters of said canal and of said lake so that all of the top minnows that would destroy the larvae of the mosquitoes in said lake adjacent thereto are killed by the poisonous gases from said sewerage. That because said top minnows are destroyed and because of the deleterious matter thrown into said canal by said City of Lakeland millions of mosquitoes are bred in the canal and in said lake adjacent thereto, and because of the deleterious matter thrown into said canal and into said lake flies breed and that because of conditions to pleaded the property and home of the plaintiff is infested by great swarms of mosquitoes from which it is impossible for plaintiff to protect himself, his family, and his home; that the filth deposited in the lake by said City of Lakeland produces obnoxious odors and gases. That said odors are so repugnant and repulsive that when the wind blows toward the home of this plaintiff it is impossible for plaintiff and his family to stay in their home on the property, which property is adjacent to Banana Lake and near to the canal and is one and one-half miles from the corporate limits of the City of Lakeland.

The declaration also alleges that the health of plaintiff and his family, by reason of conditions above mentioned, is threatened with malaria from mosquitoes and with typhoid fever and other diseases from contamination by the flies forming in said filth in said canal and in said lake. That because of these conditions the plaintiff is suffering from malaria and his family threatened with an epidemic of typhoid fever, and various members of his family have had to be treated for malaria caused by conditions stated in the declaration;

That because of the illness attributable to the conditions above mentioned, plaintiff became ill and because of the failure of his health is forced to give up a good position and to lose the employment and to be deprived of the pay incident thereto.

The allegations of the declaration are sufficient to show that the plaintiff and his family have suffered inconvenience and damage by reason of the acts complained of and that the enjoyment of the home occupied by plaintiff and his family has been greatly curtailed, prevented and damaged as a result of the acts complained of.

The declaration shows by amendment that the title to the property which plaintiff occupies as a home for himself and his family is in the name of the wife but that she holds such title in trust for the plaintiff and that he is the real party at interest.

Plaintiff in error has presented two questions for our consideration, which are stated as follows:

'Did defendant in error present sufficient evidence of ownership of the property in question to properly maintain an action for damages to said property?

'Did the trial court make error in allowing certain testimony as to the measure of damages over the objection of the plaintiff in error?'

The first question may be answered by saying that the evidence is sufficient to show that the interest of the plaintiff in the lands described is such as will entitle him to maintain the action.

In Yellow River R. R. Co. v. Harris, 35 Fla. 385, 17 So. 568, it was held:

'Where lands are trespassed upon, a party, to be entitled to sue and recover for such trespass, must have been the owner or in possession of the land at the time of the trespass. If he does not acquire any ownership over or possession...