City of San Antonio v. Pizzini

• Citation: 58 S.W. 635
• Parties: CITY OF SAN ANTONIO v. PIZZINI.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 20 June 1900
• Court: Court of Appeals of Texas

58 S.W. 635

CITY OF SAN ANTONIO v. PIZZINI.¹

Court of Civil Appeals of Texas.

June 20, 1900.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by Francisco Pizzini against the city of San Antonio. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Geo. C. Altgelt and I. C. Baker, for appellant. Carlos Bee, Ingrum & Davis, and Clark, Ball & Fuller, for appellee.

NEILL, J.

This suit was brought by appellee against appellant to recover damages for injury to his lands caused by the alleged negligence of the latter in polluting San Antonio river, upon which appellee's lands abut, with sewage of the city, caused by its negligence to flow into said stream. Appellant answered by general and special exceptions, a general denial, and specially that it constructed its system of sewers by virtue of the governmental power conferred upon it by its charter; that the same was carefully and scientifically constructed, as a means of preserving the public health, and not for appellant's profit; and that said system of sewers was at all times carefully and scientifically operated. It also impleaded H. E. Hildebrand and R. W. Hamilton, the lessees of its sewer farm, and charged them with diverting the water and sewage from its sewer system and negligently causing it to flow into the San Antonio river, and prayed judgment over against them for any damages that might be recovered against it by the appellee. Hildebrand and Hamilton interposed general and special exceptions to appellant's pleadings against them. The exceptions of appellant to appellee's petition were overruled, and those of Hildebrand and Hamilton were sustained; and the case was tried by the court without a jury, and judgment rendered in favor of appellee against appellant for $1,200 damages.

Conclusions of Fact.

On the 6th day of October, 1897, the appellee was the owner of and in possession of the lands described in his petition, aggregating 81 acres. His lands are situated and abut on the west side of the San Antonio river, about eight miles below the city of San Antonio, and without its corporate limits, having a frontage on the river of about half a mile. At that time the city of San Antonio maintained, and has since continued to maintain, a sewer system, from which the sewage of the city is emptied upon lands without its corporate limits, belonging to the city, and known as its sewer farm. Piedra creek runs through the farm, and runs into the San Antonio river. The sewage from the system is cast on the farm, and flows therefrom into said creek, and thence into the river, polluting the water thereof flowing by appellee's premises, and generating unhealthy and noxious odors thereon, rendering said land dangerous to habitation, and permanently damaging the same, which damages are in the amount found by the trial court. Such damages are caused by the negligence of appellant in permitting the sewage from its sewer system to be cast from its farm, in the manner aforestated, into the San Antonio river.

Conclusions of Law.

1. It is contended by appellant that it is not liable for the damages caused appellee by reason of the construction and operation of its system of sewers, because it was constructed and operated by appellant as a governmental function, by express authority given by its charter. Every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water, and to have it flow unpolluted in its accustomed and natural course, and its corruption or pollution by the discharge into it of sewage is an actionable nuisance. Francis v. City of Schoellkopf, 53 N. Y. 154; Wesson v. Iron Co., 13 Allen, 95; Proprietors of Locks & Canals v. City of Lowell, 7 Gray, 227; O'Brien v. City of St. Paul, 18 Minn. 176 (Gil. 163); Cone v. City of Hartford, 28 Conn. 363; Barrett v. Association (Ill. Sup.) 42 N. E. 891, 31 L. R. A. 109; Robb v. Village of La Grange, 158 Ill. 21, 42 N. E. 77; Woodward v. City of Worcester, 121 Mass. 245. While a municipal corporation is not liable for damages resulting from a lawful exercise of its discretionary power to plan and construct sewers in the first instance, yet, having undertaken their construction, it is liable for any special injury sustained by others from the negligent or unskillful exercise of its authority. Rochester White-Lead Co. v. City of Rochester, 3 N. Y. 464; Nims v. Mayor, etc., 59 N. Y. 500; City of Dixon v. Baker, 65 Ill. 518; City of Logansport v. Wright, 25 Ind. 513; Horton v. Mayor, etc., 40 Am. Rep. 4; City of Atchison v. Challiss, 9 Kan. 603. It is well settled that if, in the exercise of its discretionary power, a municipal corporation is negligent, it is liable to the same extent as any other corporation, or as an individual, for a similar injury (Hickok v. Village of Plattsburgh, 16 N. Y. 161, note; Robinson v. Chamberlain, 34 N. Y. 389; Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440; City of Logansport v. Wright, supra), and that the outfall of a sewer must be so constructed that it will not become a private or public nuisance (Franklin Wharf Co. v. City of Portland, 67 Me. 46, 24 Am. Rep. 1; Haskell v. City of New Bedford, 108 Mass. 214; Brayton v. City of Fall River, 113 Mass. 218, 18 Am. Rep. 470; State v. Portland, 43 Am. Rep. 586). As is said by the supreme court of Massachusetts in Woodward v. City of Worcester, supra: "It is immaterial whether the defendant turns the sewage immediately upon plaintiffs' land from the main...