City of San Antonio v. Mackey's Estate

• Decision Date: 15 November 1899
• Citation: 54 S.W. 33
• Parties: CITY OF SAN ANTONIO v. MACKEY'S ESTATE.
• Court: Texas Court of Appeals

54 S.W. 33

CITY OF SAN ANTONIO v. MACKEY'S ESTATE.

Court of Civil Appeals of Texas.

November 15, 1899.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by the estate of N. Mackey against the city of San Antonio. Judgment for plaintiff. Defendant appeals. Reversed.

Geo. C. Altgelt and R. B. Minor, for appellant. Upson & Newton and W. W. King, for appellee.

FLY, J.

This suit was instituted by N. Mackey against the city of San Antonio to recover damages caused by the deposit of garbage and refuse matter on land belonging to him within the limits of the city. Upon the first trial of the case Mackey recovered judgment, from which an appeal was perfected to this court, and the judgment was reversed. City of San Antonio v. Mackey (Tex. Civ. App.) 36 S. W. 760. The trial from which this writ of error originated resulted in a verdict and judgment in favor of N. Mackey in the sum of $6,265. It was shown by allegations in the petition for writ of error that since the rendition of the judgment N. Mackey had died, leaving a will by which he had devised and bequeathed all of his property to Mrs. Mary J. Mackey, who had, by the will, been made independent executrix of its provisions.

The assignments of error, from the first to and including the eighteenth, embody, in effect, but one proposition, namely, that the appellant was not liable for the acts of private scavengers who had dumped the garbage and filth upon the premises of N. Mackey. This contention of appellant has been settled against it in the former opinion in this case, where the matter was exhaustively treated, and another discussion of the question would be productive of no good. It may be well to say, in this connection, that the private scavengers licensed by the city acted under the direct control and authority of the city's superintendent of scavengers, who was acting within the scope of his authority. It was competent to prove that the mayor knew of the nuisance that existed on the premises of the plaintiff, because notice to him was notice to the city over which he presided. Nichols v. City of Boston, 98 Mass. 39.

The recovery of damages is sought in this case on the ground that the stenches and odors arising from the deposits of garbage and filth made by the city had rendered the dwelling of the plaintiff untenantable, thereby destroying its rental value, and permanent depreciation in the value of the property by reason of the odors and that reputation as to unhealthfulness acquired therefrom. It is not alleged that there was any permanent injury to the soil by reason of the deposits, but the claim for damages is made to rest upon the existence of the stench arising from the garbage. It follows that, unless the cause of the odors is of such a nature that it cannot be removed, there could be no permanent damage. There is no evidence that tends to prove that the odors are permanent in their injury, and, on the other hand, N. Mackey admitted on the stand that a few years would overcome the odors without any attempt to remove the deposits, and the land be worth about as much as it was before. The uncontradicted testimony of Gresham was to the effect that two or three weeks before the trial he had visited the land, and found no offensive odors. The visits of Efron, Russ, Young, Dougherty, and Oge were made three or four years before the trial. The suit was instituted in 1895, and before that time the city had made efforts to abate the nuisance. There was no testimony to the effect that the nuisance could not be abated, and it was stated by the plaintiff that it was abated as to one lot, No. 185, and that, while the city had not properly done the work of removing the nuisance from 189, there was no smell from it. The testimony clearly established the temporary character of the nuisance, and, independent of the testimony, experience and reason would seem to teach that, in the very nature of things, deposits made on or near the surface can be removed. As said by this court in its former opinion, "the contrary of this is not a reasonable or admissible proposition." Such being the case presented by the evidence, the depreciation in the market value of the land was not the measure of damages, and the charge presenting that issue to the jury can have no other tendency than that of misleading them. As to a nuisance capable of abatement, the depreciation of the value of the property can have no applicability. The settled rule of damages in...