City of Phoenix v. Johnson

• Decision Date: 10 January 1938
• Docket Number: Civil 3889
• Citation: 75 P.2d 30,51 Ariz. 115
• Parties: THE CITY OF PHOENIX, a Municipal Corporation, Appellant, v. WILL JOHNSON and HORTENSE JOHNSON, His Wife, Appellees
• Court: Arizona Supreme Court

75 P.2d 30

51 Ariz. 115

THE CITY OF PHOENIX, a Municipal Corporation, Appellant, v. WILL JOHNSON and HORTENSE JOHNSON, His Wife, Appellees

Civil No. 3889

Supreme Court of Arizona

January 10, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Mr. I A. Jennings, City Attorney and Mr. Hess Seaman, his Assistant, for Appellant.

Mr James E. Nelson and Mr. L. C. McNabb, for Appellees.

OPINION

LOCKWOOD, J.

This is an appeal by the City of Phoenix, a municipal corporation hereinafter called defendant, from a judgment in favor of Will Johnson and Hortense Johnson, his wife, hereinafter called plaintiffs. The record presents the following situation:

Plaintiffs brought suit alleging, in substance, that they were the owners of and residents upon certain premises to the southwest of the City of Phoenix, and that defendant had built and installed a certain sewer system for said city which conveyed all of the sewage of the city to a sewage disposal plant within some 2,000 feet of plaintiffs' property; that beginning with the first day of January, 1934, "... said sewage disposal plant is so carelessly and negligently operated by the defendant herein and is so inefficient and out of repair that it cannot at all times handle the sewage entering therein from the sewage mains aforesaid, and frequently breaks down and becomes totally useless and out of repair, at which times it is necessary to by-pass all sewage arriving at the sewage disposal plant into the Salt River immediately South of said disposal plant and within 150 yards thereof and not to exceed three-eighths of a mile away from plaintiffs' property, home and residence aforesaid; that since the first day of January, 1934, said sewage disposal plant has as time progressed, continuously becomes more inefficient and the by-passing of sewage as aforesaid more frequent by reason of all of which noisome and obnoxious odors, gases and foul and nauseating smells arise from said disposal plant from the sludge thereon stored and from the sewage by-passed into the Salt River, which said noisome, obnoxious gases, odors, gases and foul and nauseating smells are carried and conveyed by prevailing air currents coming from a Southwesterly direction over across and upon plaintiffs' said property, home and residence, all of which is nauseating to the plaintiffs, renders them physically sick, disturbs their repose at night, and makes a continued residence on the said property impossible and has utterly destroyed the value of the plaintiffs' property by reason of which their property loss is the total destruction of the value of said property herein of the value of $6,500.00, and they are damaged in the comfortable and free enjoyment of life and other property in the sum of $3,500.00;"

Defendant filed a plea in bar which in substance alleged that plaintiffs had in the year 1932 assigned any cause of action which they had or might thereafter have as a result of the operation of defendant's sewer system to C. C. Howell and Mary E. Howell; that the latter had brought suit against the City of Phoenix, setting up, in substance, all the matters which plaintiffs herein allege in the present action; and that all of the issues of the Howell action had been found in favor of defendant, and judgment rendered thereon, which judgment had never been appealed from and was still in force and effect. The defendant also answered, admitting the building and operation of the sewer system, but denying all the other allegations of the complaint. Plaintiffs demurred to the plea in bar, which demurrer was by the court sustained, and the case went to trial before a jury on the complaint and the general denial. Defendant endeavored at a number of times during the progress of the case to raise the question of res adjudicata by the Howell suit and assignment above referred to, but any evidence in regard to that was consistently ruled out by the trial court. The jury returned a general verdict in favor of plaintiffs, in the sum of $1,000, whereupon this appeal was taken.

There are nine assignments of error, raising a number of questions which we shall consider in the manner which seems advisable. The first question is whether the court properly sustained the demurrer to the plea in bar. Such plea sets up the following assignment made by plaintiffs July 6, 1932, to C.C. and Mary E. Howell:

"That we, Will Johnson and Hortense Johnson, his wife, for value received, do hereby sell, assign, transfer and set over unto C. C. Howell and Mary E. Howell, husband and wife, any and all sums of money now due and owing to us, any and all claims, demands and causes of action which we now have or may have against the City of Phoenix, in the State of Arizona, arising out of the construction, installation, maintenance and operation of the sewage disposal plant of said City located on South Twenty-third Avenue near the Salt River."

Thereafter, the Howells brought suit against defendant, setting up the ownership by the Johnsons of the same premises involved in the present action, the maintenance and operation of the sewage plant, and:

"... That said sewage disposal plant has been so negligently, carelessly and inefficiently constructed, maintained and operated, that said plant and every part, unit and stage in the operation thereof, and the fertilizer factory constructed in connection therewith, and the drainage therefrom, have at all times since the beginning of the operation thereof, emitted, given off and disc h arged into the pure air, vile, stinking, nauseating and noisome gases, vapors and odors, which said gases, vapors and odors, extend over and upon the premises and home of the said Will Johnson and Hortense Johnson, his wife, and penetrate their said home in such volume and to such extent as to destroy the enjoyment, material comfort and repose of the said Will Johnson and Hortense Johnson, his wife, to their joint damage in the sum and amount of five thousand dollars ($5,000.00).

"That the construction, maintenance and operation of said plant at the location and in the manner aforesaid, has rendered the home of the said Will Hohnson and Hortense Johnson, his wife, uninhabitable and unmarketable and has entirely destroyed the rental value of the remaining improvements on said premises, and has impaired the value of said premises to the extent and in the amount of four thousand dollars ($4,000.00), to the damage and loss of said Will Johnson and Hortense Johnson, his wife, in said amount."

That case was tried to a jury which returned a general verdict in favor of defendant, and judgment was rendered thereon.

If the assignment above set forth included the present cause of action, the judgment rendered in the Howell case was, of course, res adjudicata as to the issues involved in the present action, and the demurrer to the plea in bar should have been overruled. It is obvious that both actions were based upon the alleged maintenance of a nuisance by the defendant, City of Phoenix. The term "nuisance" signifies in law such a use of property or such a course of conduct, irrespective of actual trespass against others, or of malicious or actual criminal intent, which transgresses the just restrictions upon use or conduct which the proximity of other persons or property in civilized communities imposes upon what would otherwise be rightful freedom. It is a class of wrongs which arises from an unreasonable, unwarranted, or unlawful use by a person of his own property, working an obstruction or injury to the right of another, or to the public, and producing such material annoyance, inconvenience, and discomfort that the law will presume a resulting damage. 46 C.J. 645, and cases cited. Nuisances are usually spoken of as public, private, and mixed. A nuisance is common or public when it affects the rights which are enjoyed by its citizens as a part of the public, while a private nuisance is one which affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public. Mixed nuisances are those which are public and at the same time cause special damage to private individuals. The distinction does not arise from any necessary difference in the nature or the character of the thing which creates a nuisance, but is based on the difference between the rights affected thereby. If a nuisance affects the general public and at the same time inflicts some special injury upon a private individual that is not inflicted upon the general public, such individual may have relief, notwithstanding the nuisance itself is public. It thus appears that a private individual may have a right of action on account of either a public or a private nuisance. In the first case he must show some special damages which he has suffered in addition to those common to the general public. In the other, he may recover for the damages which he has received, regardless of whether the general public has suffered by reason of the nuisance or not. A public nuisance is defined by section 4693, Revised Code 1928, as follows:

"Public nuisance; maintaining; penalty. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire commmunity or neighborhood, or by any considerable number of persons,... is a public nuisance."

It thus appears that in order to constitute a public nuisance it must affect a considerable number of persons or an entire community or neighborhood. The complaint in the present case does not allege either directly or indirectly that defendant's sewer system is injurious to...