City of Pittsburg v. Smith

• Decision Date: 12 May 1921
• Docket Number: (No. 2370.)
• Citation: 230 S.W. 1113
• Parties: CITY OF PITTSBURG et al. v. SMITH.
• Court: Texas Court of Appeals

Page 1113

230 S.W. 1113

CITY OF PITTSBURG et al. v. SMITH.

(No. 2370.)

Court of Civil Appeals of Texas. Texarkana.

May 12, 1921.

Rehearing Denied May 26, 1921.

Appeal from District Court, Camp County; J. A. Ward, Judge.

Action by Mrs. Maggie Smith against the City of Pittsburg and others. From judgment for plaintiff, defendants appeal. Modified and affirmed.

A sewer system was built and completed by private parties and then purchased and taken over, in August, 1915, and ever since operated by the city of Pittsburg, a municipal corporation under the general laws of the state. The septic tank is located outside of the city limits and within 300 or 400 yards from the home of the appellee. The outflow of the septic tank finally empties into a branch about 3 yards distant from the waste pipes, which runs within 75 yards of appellee's home and on through her farm and pasture. And the appellee brought the suit for damages occasioned by, and to have abated by injunction as a nuisance, the negligent operation and maintenance of the septic tank. It is alleged that "said septic tank is too small to accommodate the number of water-closets connected thereto." The injury to plaintiff, as alleged, consists: (1) In polluting the stream used by her for domestic and stock purposes; (2) in decreased value of the home and farm; and (3) in personal discomfort and injury to health from offensive odors and insects. The defendants answered by general denial, and specially pleaded the statute of two years limitation as to damages, and further that on April 15, 1915, before the construction of the septic tank, the plaintiff in writing, for a valuable consideration, consented to the erection of the tank and released the city from all claims for damages arising from the operation thereof, and is now estopped from enjoining the operation of the tank. The plaintiff by supplemental petition made reply in avoidance of the defendants' answer.

The case was tried before the court, and judgment was entered denying plaintiff a recovery of damages, but awarding injunction permanently restraining the city of Pittsburg as follows:

"That the operation of the septic tank as well as the pollution of the waters by the emptying of its contents into said stream should be abated and enjoined. It is therefore ordered and adjudged by the court that the city of Pittsburg, its mayor, aldermen, and their successors in office and their agents and employees, be and are hereby perpetually enjoined and restrained from emptying or permitting the emptying the contents of the said septic tank located and described in plaintiff's petition into the stream that runs across plaintiff's land, or from emptying or permitting the emptying thereof so that the said refuse shall make its way into said stream so as to cross plaintiff's land, as hereinafter described, or from otherwise polluting or permitting the pollution of the waters of said stream by said septic tank. It is further ordered, adjudged, and considered by the court that the septic tank likewise is a nuisance in that it gives off foul odors and offensive odors permeating plaintiff's home and rendering it unbearable and prevents her proper enjoyment thereof, and the defendants aforesaid are further enjoined and restrained from the maintenance thereof or to permit the maintenance thereof as now located and open as now operated and maintained, that is, on the land where it is now located or on any other land that will cause the emptying thereof into the stream so as to run across plaintiff's land in such manner as to pollute the waters on plaintiff's land."

The judgment further gave the city until April 1, 1921, in which to remedy the maintenance in a way not to be a nuisance.

According to the special findings of fact made by the trial judge:

(1) The city of Pittsburg has about 2,500 inhabitants, and the business and residence properties, to the number of about 100 patrons, and the school, jail, and courthouse buildings are connected with the sewer; and (2) the city of Pittsburg has tried to eliminate the objectionable features of the sewer system, but has not been able to do so; and (3) "the liquid that leaves the said sewer and empties into said branch is very dark, nearly black, and has a very offensive odor, and can be smelled a long distance from the tank, at any time the direction the wind is blowing, and in the early morning and late afternoon and evening the same emits foul and offensive odors that permeate the atmosphere for the distance of 200 and 300 yards from the...