City of Reno v. Fields
| Decision Date | 13 November 1952 |
| Docket Number | No. 3709,3709 |
| Citation | 250 P.2d 140,69 Nev. 300 |
| Parties | CITY OF RENO et al. v. FIELDS et ux. |
| Court | Nevada Supreme Court |
Woodburn, Forman & Woodburn, Reno, for appellants.
Martin J. Scanlan, Reno, for respondents.
William E. Fields and Phyllis H. Fields, his wife, own residential property east of the city dump maintained by the city of Reno, and they sought an injunction against the operation and maintenance of such dump as a nuisance and for resulting damages. They attached to their amended complaint a copy of their claim for such damages theretofore presented to the city. Such claim recited the plaintiffs' ownership of the property described in detail, alleged the ownership by the city of certain lands in the same section of land and alleged that the city, since December, 1946, and to date, has been 'maintaining and operating a dumping grounds thereon in conjunction with one George Cook as lessee since August 9, 1949, and with other lessees prior thereto, and by the city of Reno independently at other times, and have been maintaining and operating said dumping grounds for waste material consisting of paper, garbage, decayed vegetable and animal matter, trash and other refuse, and has allowed residents of the city of Reno and Washoe county to deposit waste material such as enumerated above and without any adequate plan for completely destroying or disposing of the same by incinerator, chemicals, burial or other destroying facilities, or to sufficiently enclose and confine such waste material within the confines of said dumping grounds, and in consequence paper, weeds and much other loose material in the form of dirt and dust has been and frequently is, with heavy high wind, blown and carried therefrom and upon the property of the undersigned, thereby causing the undersigned much annoyance, inconvenience and labor in unsuccessfully attempting to keep their home, premises and property free and clear of any such waste material, refuse and other things, and which has created and continues to create an unsanitary, unhealthy and unsightly condition of said premises, and the dust storms may carry germs and other deleterious and poisonous matter and which is a menace to the health of the undersigned, their child and other persons living on the premises.' The claimants then estimated their labor in cleaning their premises as comprising 1,224 hours at $1 per hour, amounting to $1,224 and 'that the value of the property owned by the undersigned, together with the improvements thereon, diminished in value at least $5,000,' to claimants' total damage in the sum of $6,224. The claim was duly verified and filed, was disallowed by the city board and the action commenced. As an affirmative defense the city pleaded failure of compliance with the municipal 'claim statute,' hereinafter quoted in full.
On the morning of the day set for the jury trial, pursuant to notice of motion filed the same day, the plaintiffs presented a motion to amend their amended complaint in the following respects: Paragraph VII of the amended complaint read as follows: 'That the creation and continuation of said dump grounds and the manner in which the refuse and waste material is partially disposed of and the smoke and smells arising from and being blown upon the residential property of plaintiff has depreciated the value of said property to the extent of $5,000.'
The proposed further amendment was to make Paragraph VII read as follows: 'That the operation and maintenance of said dump grounds and the manner in which the refuse and waste material was partially disposed of, and the refuse and waste material and the smoke and odors from said dump grounds being blown upon the residential property of plaintiffs' has caused plaintiffs annoyance, discomfort and inconvenience, and has deprived plaintiffs of the comfortable enjoyment of the property, and has made their premises unsightly and objectionable to their senses of sight and smell and a menace to their health, to the plaintiffs' damage in the sum of $5,000.'
The item of the prayer for $5,000 damages 'for creating, maintaining and operating a nuisance and for damages caused to plaintiffs and plaintiffs' property' was also sought to be amended to claim $5,000 damages 'for creating, maintaining and operating the municipal dump of the city of Reno, Nevada, as a nuisance, and to plaintiffs' damage for deprivation of the comfortable enjoyment of their property.'
Both defendants objected to the motion to amend, contending that, if granted, it would substitute a cause of action for personal injuries for a cause of action for property damage and that no claim was ever presented to the city of Reno for that character of injury as required by § 1259, N.C.L.1929. The motion to amend was granted. The respective answers were amended to reflect appropriate denials and the first affirmative defense of the city was amended so as to plead the provisions of said section as a bar to plaintiffs' amended demand for damages. No objection to the amendment was made in the trial court upon the ground of its late presentation nor was any prejudice alleged by reason thereof nor was a continuance sought, and no error is assigned in this court growing out of the late presentation of the motion to amend.
The jury returned a verdict of $1,000 in favor of plaintiffs. Judgment was entered thereon and defendants' motion for new trial denied. Appellants contend first that §§ 1259 and 1260, N.C.L. 1929, make the filing of a claim with the city a condition precedent to suit; or, in the alternative, that the failure to file such claim may be asserted as an affirmative defense to the action. They further contend that the claim as filed with the city was one for damages to their real estate; that the amendment permitted by the court to the amended complaint as above recited permitted the plaintiffs to state a new and different cause of action, namely, a cause of action for personal injuries; that as no claim had been filed with the city for such personal injuries, the action must fail.
Sections 1259 and 1260, N.C.L.1929, read as follows 'All demands and accounts and all claims of whatsoever kind, character or nature, or however the same may have originated against any incorporated city in this state, must be presented to the city council of said city, duly authenticated, within six months from the time such demands or accounts became due or payable, and within six months from the time the acts from which said claims originated shall happen.
'No demand, account, or such claim against any incorporated city...
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