City of San Antonio v. Mackey

• Decision Date: 17 June 1896
• Citation: 36 S.W. 760
• Parties: CITY OF SAN ANTONIO v. MACKEY.
• Court: Texas Court of Appeals

36 S.W. 760

CITY OF SAN ANTONIO v. MACKEY.

Court of Civil Appeals of Texas.

June 17, 1896.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by N. Mackey against the city of San Antonio for damages to property. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. B. Minor, for appellant. Upson & Bergstrom and W. W. King, for appellee.

JAMES, C. J.

Appellee, owner of several lots in the city limits, brought suit against the city for damages to his property, arising from the use for a number of years of certain of his lots and other lots as a dumping place for refuse matter. The petition alleged that on one of plaintiff's lots (No. 178), containing 24 acres, he had his residence, and that defendant had deposited on plaintiff's other lots, and on adjacent lots belonging to others, carcasses of dead animals, decayed animal and vegetable matter, night soil, garbage, filth, and refuse matter of every description, and suffered the same to remain, wherefrom noxious and unhealthy odors and stenches arose, rendering said lot and other property in the neighborhood uninhabitable, which compelled plaintiff to move from the lot, and rendered the same unfit to reside upon. In respect to this lot plaintiff asked damages based on the rental value of such lot. In regard to one of his other lots (lot 185, of 24 acres) he alleged that defendant had deposited, and still continues to deposit, tin cans, scrap iron, broken bottles, glass, tin and leather clippings, and trash of every description, whereby the entire surface of the lot is covered several feet in depth, and rendered worthless, and for this he claimed damage in the value of the lot. That plaintiff's lots other than No. 178, the residence lot, had from said causes been greatly depreciated in value, and in respect to these he asked damages for diminution in value. The district court applied the rule which has been adopted by the supreme court in reference to special injury resulting to the citizen from the creation or maintenance by the city of a dumping place for refuse matter from which noxious odors emanate. A city, in the pursuit of its power to provide for the public health, is liable in the event of negligence of its officers and servants in exercising such power. The cases show that in arriving at this result due consideration was given to the distinction in this connection between acts of the city done in its strictly governmental capacity, and acts not of that class. City of Ft. Worth v. Crawford, 64 Tex. 202; Id., 74 Tex. 404, 12 S. W. 52. This makes it unnecessary for us to discuss the question. We believe that the city's liability in such cases extends to any acts of wrong or trespass committed by authority or direction of the city, as well as to mere negligent acts of its servants. In other words, applying this to the facts of this case, we are of opinion that a city is liable to the owner of property where it causes refuse matter to be deposited on his ground, thereby injuring him, although the act may not amount to a nuisance. There was testimony in this case which went to show that the city had for years used this locality as a dumping place, and certainly there was sufficient evidence to warrant a finding that this was done by its authority and direction, even though there may have been no ordinance or resolution on the subject. It can hardly be maintained that in causing the refuse matter of the city to be removed during a number of years the city did not connect itself with, and become a party to, and authorize the act of, depositing the same in a particular place; and under such circumstances it should not be allowed to deny its liability for the reason that it had not designated this as a place of deposit by a formal act of its council.

There was testimony to show that individuals having no connection with the city government also used this as a dumping ground from time to time, and in this connection it seems to be contended that the city, if liable at all, should not be held except so far as it contributed to the injury. In our opinion, this fact would not diminish the liability of the city. If it acted with others in creating or carrying on the nuisance or trespass, we do not see how it would be practicable to enforce a rule separating the liability of the city from that of the others, but on principle each tort feasor would be held for the entire damage.

The charge of the court indicates that certain items for damages were abandoned, or not insisted on by the plaintiff. These were damages for loss in respect to the sale of lots, and damages for the mere deposit of substances on plaintiff's lots. The charge submitted the case on the issue of whether or not the defendant, its agents or servants, made the deposit, and did so negligently, causing the bad odors alleged. It will be seen that the damage which the charge confined the jury to was that which resulted from the nuisance arising from the noisome odors. Plaintiff asked no further submission of issues, and it must be...