City of Paris v. Jenkins

• Decision Date: 04 November 1909
• Citation: 122 S.W. 411
• Parties: CITY OF PARIS v. JENKINS.
• Court: Texas Court of Appeals

122 S.W. 411

CITY OF PARIS v. JENKINS.

Court of Civil Appeals of Texas.

November 4, 1909.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by T. W. Jenkins against the City of Paris. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Appellee owned a tract of about 31 acres of land, situated about two miles north of the city of Paris. The city owned a tract of about 10 acres of land adjacent to appellee's tract, and used same as a dumping ground for dead animals, garbage, and refuse of all kinds. The suit was by appellee against appellant. In his petition appellee alleged as follows: "That since the 1st day of January, 1902, and up to and including the present time, the defendant, the city of Paris, dumped and caused to be dumped, and is dumping and causing to be dumped, all manner of offensive garbage, dead animals, waste matter, and refuse of all kinds from the streets and residences of said city of Paris, on and near to plaintiff's said land and near his place of residence thereon, by reason of which dumping a very offensive, unhealthy scent was cast onto and over plaintiff's land, into and around his residence, and that noxious vapors and smell therefrom constantly invaded his premises and were wafted over his land, and are still being carried over, onto, around, and into his said house, and that same is so noxious and the effluvia so strong and poisonous that it is unsafe, uncomfortable, and dangerous to reside on said land, or to use and cultivate it, and renders it unfit for any purpose and almost entirely worthless. Plaintiff further states that his said residence is situated about 150 yards in a southwesterly direction from where said dumpage, garbage, and filth is dumped, and he says that the air is constantly filled with said vapors arising from said dumpage as above described, and said vapors are wafted into his house to such an extent and so strong and disagreeable as to render his house on said land and his land unhabitable, and his said land almost valueless and permanently injured, thereby destroying said land and depriving plaintiff of its value. That defendant has permanently established it as it now is for its dumping ground for the purpose of dumping all manner of filth, garbage, and dead animals, etc., from the streets and residences of said city of Paris, to remain there forever. Plaintiff's said land is situated and described as follows: (Then follows description of land.) That said land is worth $4,000 without the nuisance above complained of, but is not worth over $500 now by reason of said nuisance as it now is, if that much, and that by reason of said nuisance plaintiff's land has been damaged permanently in the sum of $3,500." The appeal is from a judgment for the sum of $175, interest, and costs, in favor of appellee.

Edgar Wright, for appellant. D. K. Fooshe, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellant contends that it was not liable to appellee for damages suffered by him in consequence of the use it made of its land, unless in making such use of same it was guilty of negligence, and insists that the charge of the court was erroneous, in that it authorized the jury to find for appellee in the absence of proof of negligence on its part. That, in disposing of its garbage and refuse, a city acts in its corporate, and not in its governmental, capacity, and is liable as an individual would be for its act in thereby creating and maintaining a nuisance, seems to be well settled in this state. City of Coleman v. Price (Civ. App.) 117 S. W. 905; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S. W. 909; City of Galveston v. Posnainsky, 62 Tex. 127, 50 Am. Rep. 517; City of Ft. Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 Am. St. Rep. 840; City of Sherman v. Langham (Sup.) 13 S. W. 1042. That an individual, creating and maintaining on his own land such a nuisance as the one complained of, without respect to whether in so doing he had been negligent or not, would be liable to an adjacent owner thereby injured, is...