City of McAlester v. King

• Decision Date: 29 October 1957
• Docket Number: No. 37514,37514
• Citation: City of McAlester v. King, 317 P.2d 265 (Okla. 1957)
• Parties: The CITY OF McALESTER, Oklahoma, a Municipal Corporation, Plaintiff in Error, v. Donald M. KING and Marjorie J. King, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 265

317 P.2d 265

1957 OK 270

The CITY OF McALESTER, Oklahoma, a Municipal Corporation Plaintiff in Error, v. Donald M. KING and Marjorie J. King, Defendants in Error.

No. 37514.

Supreme Court of Oklahoma.

Oct. 29, 1957.

Syllabus by the Court.

1. In an action by a property owner against a city for damages caused by the erection of a water tower on adjacent property, allegations that plaintiffs fear the collapse of said water tower, or that objects will fall therefrom, or that the same will overflow, or that their children will play thereon and suffer death or injury, and, that the same is unsightly, are insufficient to show special damage, or state a cause of action therefor, where it is not alleged that such water tower was wrongfully or illegally erected nor is it alleged that such tower was improperly or negligently constructed, and no facts are alleged tending to show danger of such water tower falling, or of objects falling therefrom, or of overflow, or of children being injured or killed thereon.

2. In the absence of physical injury to the property, or the impairment of an appurtenant right thereto, that portion of section 24, art. 2, of the Constitution, providing that private property shall not be damaged for public use without just compensation, has no application to the depreciation of the market value of a parcel of land in use for residence purposes, where such depreciation has been caused by the erection of a city water tower in close proximity thereto and the public use is not of such character as to constitute a nuisance.

3. It is error to permit an amendment 'to conform to the facts proven' when such facts are admitted over the objection of defendant and are not within the issues originally pleaded.

4. Property owner who has no easement of light, air, or view in or over adjoining property has no cause for complaint if these are interfered with or entirely shut off by erection of any lawful structure on such adjoining property.

5. A water tower is not a nuisance per se. However, when a water tower or other structure is so situated and so constructed that the accumulation of rain, snow, or ice on the roof or side thereof is discharged on neighboring premises, such discharge may constitute a nuisance in fact.

Appeal from the District Court of Pittsburg County; W. A. Lackey, Judge.

Action by property owner against municipality for damages allegedly resulting from erection of municipal water tower on adjacent property in which a judgment was rendered for plaintiff and defendant has appealed. Reversed.

Arnote, Arnote & Bratton, Walter J. Arnote, McAlester, for plaintiff in error.

Robert J. Bell, Charles B. Tucker, McAlester, for defendants in error.

WILLIAMS, Justice.

This action was brought by Donald M. King and Marjorie J. King, hereinafter referred to as plaintiffs, against the City of McAlester, Oklahoma, hereinafter referred to as defendant, for the recovery of damages for injury to plaintiffs' property alleged to have been caused by the construction of a water tower by defendant on the lot adjacent to plaintiffs' property in the City ofMcAlester.

Judgment upon the verdict of the jury was rendered in favor of plaintiffs and against defendant for damages in the sum of $3,800, and defendant has perfected this appeal. Defendant asserts that the basic issue presented by this appeal is whether a property owner is entitled to recover damages because of the construction of a municipal water storage tank on adjacent property.

Plaintiffs filed their petition on May 17, 1955, alleging that they are the owners and in possession of, as their homestead, the westerly 50 feet of lot 3, block 532, City of McAlester, and that the defendant is the owner of the immediately adjacent lot 4, block 532; that during 1955 defendant built a water tower on said lot 4, which water tower is permanent in nature and is of bell type construction with a capacity of 1,000,000 gallons of water. Paragraph four of said petition is as follows:

'That plaintiffs have suffered, still suffer and will continue to suffer a special and peculiar injury resulting from this uncompensated and damage to their homestead by the defendant, aforesaid, in that plaintiffs and their children have been, do now, and will hereafter live in constant threat of danger from the collapse of said water tower, or from objects falling therefrom, said water tower of defendant being so immediately adjacent to the plaintiffs' premises as to subject the plaintiffs to danger of said falling objects, overflow and collapse. Plaintiffs further show that the said water tower, as well as the home of the plaintiffs, is located on the peak of the highest hill in the City of McAlester; that the prevailing winds of tornadic proportions come from the southwest and due to the unusual height of the water tower with great force and violence; that said water tower and tank constitute a constant invitation to the children of the plaintiff[s] to play thereon and cause constant apprehension to the plaintiffs of death or injury; that same is unsightly to such extent that it has further damaged the sales value of the property of the plaintiffs; that by virtue of the matters and things hereinbefore set forth, the defendant has virtually destroyed the value of the plaintiffs' premises for residential purposes.'

The petition then alleges that the fair cash market value of plaintiffs' property was reduced from $7,500 to $2,500 by virtue of the above matters, and prays judgment in the amount of $5,000.

Defendant moved the court to require plaintiffs to make their petition more definite and certain by stating in what particulars there is danger from the collapse of said water tower, in what particulars there is danger of objects falling from the tower, how and in what manner said water tower can overflow, and in what particulars the tower is unsightly; moved the court to strike from plaintiffs' petition the allegations of danger of the threat of collapse of said water tower, of danger of the threat of objects falling from the tower, that the tower causes apprehensin of death or injury to children from playing on the tower, and that the tower is unsightly, for the reason that none of those allegations stated a cause of action against the defendant; and demurred to the petition for the reason that the same does not state facts sufficient to constitute a cause of action in favor of plaintiffs and against defendant. Such motions and demurrer were overruled by the trial court.

As its first proposition of error, defendant asserts that in the absence of physical injury to the property, or the impairment of an appurtenant right thereto, that portion of section 24, art. 2 of the constitution, providing that private property shall not be damaged for public use without just compensation, has no application to the depreciation of the market value of a parcel of land in use for residential purposes, where said depreciation has been caused by erection of city water tower in close proximity thereto, and that the trial court therefore erred in overruling the above mentioned motions and demurrer.

The section of our State Constitution above mentioned, upon which plaintiffs rely for their recovery, provides:

'Private property shall not be taken or damaged for public use without just compensation.'

Plaintiffs do not allege or contend that any of their property has been taken, but do contend that their property has been damaged by virtue of the public construction on the adjacent property.

The rule applicable to cases of this kind has been well stated in the syllabus of City of Geary v. Moore, 181 Okl. 616, 75 P.2d 891, which is as follows:

'In the absence of physical injury to the property, or the impairment of an appurtenant right thereto, that portion of section 24, art. 2, of the Constitution, providing that private property shall not be damaged for public use without just compensation, has no application to the depreciation of the market value of a parcel of land in use for residence purposes, where said depreciation has been caused by the erection of a city jail in close proximity thereto and where the public use is not of such character as to constitute a nuisance.'

A water tower is not a nuisance per se. Plaintiffs' petition contains no allegation that, due to improper, careless, or negligent construction, maintenance, or operation, the same has become a nuisance, and there is no allegation of physical injury to plaintiffs' property, or the impairment of an appurtenant right thereto. Given its most liberal construction, plaintiffs' petition consists of no more than an allegation of apprehension on the part of plaintiffs that the water tower will collapse or that objects will fall from the water tower or that the water tower will overflow, or that their children will be attracted to play on the tower and be injured, and an affirmative allegation that the water tower is unsightly. Plaintiffs' petition here is strikingly similar to the one involved in Barrows v. City of Sycamore, 150 Ill. 588, 37 N.E. 1096, 1098, 25 L.R.A. 535, and in Doyle v. City of Sycamore, 193 Ill. 501, 61 N.E. 1117, 1119. Both of such cases involved damages alleged to have resulted from the construction of a municipal water tower in the street adjacent to the property of the plaintiff. In the Barrows case, supra, the Illinois Court said:

'The special injury attempted to be set up in each of these counts is that her property has been depreciated in value, because of the danger of the building being destroyed or damaged by the standpipe falling or being blown upon it, or by bursting and flooding it with water, but not a single fact is alleged upon which the apprehension of such danger can be based. In the first count, nothing but the apprehension itself is alleged; and in the second and third, merely that it (the standpipe) is 'liable' to fall, blow over, or burst. Why the apprehension exists, or why...