City of Lakeland v. State Ex Rel. Harris

• Citation: 197 So. 470,143 Fla. 761
• Parties: CITY OF LAKELAND v. STATE ex rel. HARRIS et al.
• Decision Date: 19 July 1940
• Court: United States State Supreme Court of Florida

197 So. 470

143 Fla. 761

CITY OF LAKELAND v. STATE ex rel. HARRIS et al.

Florida Supreme Court

July 19, 1940

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

Suit by the State of Florida, on the relation of James Harris, and others against the City of Lakeland, Fla., a municipal corporation, to secure relief from an alleged public nuisance. To review and order striking allegations of defendant's answer, defendant brings certiorari.

Writ granted, and part of order quashed.

COUNSEL

Marchant & Love, of Lakeland, for petitioner.

John S Edwards, of Lakeland, for respondents.

OPINION

BUFORD Justice.

This is the second appearance of this case here. See State ex rel. Harris v. City of Lakeland, 193 So. 826, 827.

When the mandate of this court went down pursuant to our opinion and judgment, supra, on motion the court entered the following order:

'The Motion of the plaintiff to strike portions of the defendant's answer in the foregoing cause coming on again to be heard after the coming down from the Supreme Court of the opinion and mandate in said cause, and counsel for the plaintiff having stated in open Court that the Bill was intended to charge only a public nuisance and not a private nuisance, and that the plaintiffs under said Bill would be entitled only to relief from a public nuisance the Court being advised in the premises this Court finds: That under the opinion of the Supreme Court a public nuisance is charged in the said Bill, and that if same is established by evidence the plaintiff is entitled to relief and to have the said public nuisance abated;

'That neither the doctrine of comparative negligence nor the commission of a nuisance by other persons nor poverty of the defendant or inability to remove the nuisance created by it is a defense to a Bill to abate a public nuisance.

'It Is Therefore Ordered that the said motion to strike all allegations of the said Answer which undertake to set up as a defense to the said Bill the establishment or maintenance of a nuisance by any other person or persons; the defense that undertakes to set up comparative injury between the plaintiff and the defendant in said cause; and the poverty or inability of the defendant to remove said nuisance; is hereby granted, and all portions of said Answer that undertake to set up any of the foregoing defenses are hereby stricken.'

As we understand the order, it leaves in the answer all the allegations denying the existence of the nuisance and denying the defendant's responsibility for the existence of a nuisance, if one exists. The parts stricken from the answer are those allegations which sought to set up the defense of the establishment or maintenance of the alleged nuisance by persons other than the defendant and the defense that the answer undertakes to set up under the doctrine of comparative injury between the plaintiff and defendant in the cause.

In our opinion and judgment, supra, it was not held that the doctrine of comparative negligence could not be applied in cases involving strictly public nuisance, but we did hold that that doctrine was rarely, if ever, applied, and whether or not it may be applied depends upon the facts of the case.

In City of Harrisonville, Mo. v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208, it was held:

1. 'The discharge from a municipal sewage disposal plant into a creek flowing through complainant's farm, of an effluent containing organic putrescent matter which additional treatment would eliminate, is an injury for which an injunction may be granted if upon the facts found injunction is the appropriate remedy.'

3. 'Where substantial redress for a nuisance can be afforded by the payment of money and issuance of an injunction would subject the defendant to grossly disproportionate hardship, equitable relief may be denied, particularly where the interest which would be prejudiced is a public one.'

4. 'Injunction will not issue against the discharge of an offensive effluent from a municipal sewage disposal plant into a creek flowing through complainant's farm, where the further treatment of the sewage would require a considerable expenditure for an auxiliary plant the annual interest on the cost of which would be many times the annual loss resulting to the owner of the farm from the nuisance, and complete monetary redress may be given by making denial of an injunction conditional upon prompt payment as compensation of an amount equal to the depreciation in value of the farm on account of the nuisance.'

To like effect is City of New York v. Pine, 185 U.S. 93, 22 S.Ct. 592, 46 L.Ed. 820.

In Boyd v. City of San Angelo, Tex.Civ.App., 290 S.W. 833, 834, the court quoted with approval from 29 Cyc. 1159, saying:

"One who uses his property in a lawful and proper manner is not guilty of a nuisance, merely because the particular use which he chooses to make of it may cause inconvenience or annoyance to a neighbor, and nothing which is legal in its erection can be a nuisance per se. * * *"

And then said:

'It is obvious, therefore, that a sewage disposal plant is not a nuisance per se, but its location and the manner of its operation must determine that matter. And even when it becomes a nuisance it does not necessarily follow that such nuisance is permanent, or that its operation may be permanently enjoined. City of Austin v. Bush (Tex.Civ.App.) 260 S.W. 300.

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