City of Springdale v. Weathers

• Decision Date: 16 January 1967
• Docket Number: No. 5--4047,5--4047
• Citation: 410 S.W.2d 754,241 Ark. 772
• Parties: CITY OF SPRINGDALE, Arkansas, a Municipal Corporation, Appellant, v. Sam WEATHERS and Margaret Weathers, husband and wife, Appellees.
• Court: Arkansas Supreme Court

Page 754

410 S.W.2d 754

241 Ark. 772

CITY OF SPRINGDALE, Arkansas, a Municipal Corporation, Appellant, v. Sam WEATHERS and Margaret Weathers, husband and wife, Appellees.

No. 5--4047.

Supreme Court of Arkansas.

Jan. 16, 1967.

Rehearing Denied Feb. 20, 1967.

Little & Enfield, Bentonville, and Crouch, Blair & Cypert, Springdale, for appellant.

Putman, Davis & Bassett, Fayetteville, for appellee.

WARD, Justice.

This litigation concerns damages to a dairy farm caused by the discharge of sewage from a disposal plant owned by the City of Springdale. The sewage polluted Spring Creek which ran through appellees' farm, allegedly causing permanent damage to its use as a dairy farm.

On December 30, 1963 appellees, Mr. and Mrs. Sam Weathers, filed suit against appellant, City of Springdale, asking for damages in the sum of $175,000. On December 15, 1965, after a lengthy trial to a jury, judgment was entered against appellant and in favor of appellees in the amount of $38,000, and this appeal by appellant follows. Pertinent testimony will be referred to hereafter in the assignments of error. For a reversal appellant relies on the following points:

1.

The court erred in failing to direct a verdict in favor of the defendant on the grounds that the plaintiff's cause of action is barred by the statute of limitations.

2.

There was no substantial evidence upon which to base a finding of damage, and the award of damages was grossly excessive.

3.

The court erred in failing to give an instruction on temporary damages as requested by the defendant.

4.

The court erred in allowing hearsay evidence into testimony, to the prejudice of defendant.

1. After an examination of the pertinent legal issues and testimony involved we have concluded no reversible error is shown under this point.

It is apparently agreed by both parties that the three years statute is applicable here. There is, however, a sharp conflict in opinion over when the statute begins to run. Generally speaking, it is the contention of appellant that the statute begins to run 'upon the construction of the nuisance', quoting from the case of St. Louis, Iron Mountain & Southern Railway Company v. Anderson, 62 Ark. 360, 35 S.W. 791. Again, appellant says 'the injury dates from the construction of a permanent sewage disposal structure', citing Sewer Improvement District No. 1 of City of Wynne v. Fiscus, 128 Ark. 250, 193 S.W. 521, L.R.A.1917D 682 and International Shoe Company v. Gibbs, 183 Ark. 512, 36 S.W.2d 961. It is then pointed out by appellant that the record shows, among other things, that: The City had a disposal plant in 1937 by which Spring Creek was polluted in some degree; appellants bought part of their land in 1946 and the rest of it in 1959; appellees received from the State Health Department a permit to operate a Grade A Dairy in 1957; City built a new disposal plant in 1964 (after this suit was filed) to correct the trouble; appellees had to quit irrigating their land with water from Spring Creek because of pollution of the water, and; during all periods above mentioned the creek was being noticeably polluted. It is, therefore, earnestly insisted by appellant that since appellees were aware of the above factual situation their cause of action arose more than three years before suit was filed by appellee in December 1963.

In our opinion the rule applicable to the facts in this case relative to when the statute began to run is the one set out in Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S.W.2d 482 and Nance v. Cook, 240 Ark. 336, 399 S.W.2d 262. In the Sunray case we approved the following statement:

"It seems well settled that in an action for damages for permanent injury to real estate caused by continuing salt water pollution the limitation begins to run at the time when it becomes obvious that a permanent injury has been suffered."

We infer appellant contends that the rule announced in the above cited cases is not applicable here because they deal with damage by salt water and not by sewage. Such distinction is not supported by sound reasoning or by our decisions. The nature of damage to land is so similar in both instances, that, we think, the same rule should be followed in attempting to determine the time when the permanent injury occurred. In the Nance case we approved the same statement copied above.

There are, therefore, two fact questions for the jury to decide; (a) whether the damage was permanent, and (b) if so, when did it become, or should have become, obvious to appellees. Both of these fact questions were presented to the jury on separate interrogatories. The jury found from the evidence that the farm had been permanently damaged and that it became obvious to appellees in the year 1963.

It would serve no useful purpose, we think, to detail all the testimony relative to the above mentioned questions since we have carefully read the same and find substantial evidence to support the findings of the jury. It suffices to point out that there was testimony showing the contamination began (in a slight degree) in 1937; that it continued to increase until 1961 when the City agreed to stop it after appellees had spent thousands of dollars on improvements to make a Grade A dairy farm; that the contaminations continued until appellees were informed by the State Health Department to stop or materially curtail such operations on December 9, 1963.

2. We also are convinced there is substantial evidence in the record to sustain the jury's finding that appellees' farm was damaged to the extent of $38,000. It is properly conceded by both parties that the amount of damages is the difference between the value of the farm before and after the damage.

In substance, Mr. Weathers testified: I bought an irrigation system to use water from Spring Creek; in 1952 I built a Grade A Dairy barn in order to be able to run a Grade A Dairy farm; in 1957 I built a bottling plant to pasteurize and homogenize the milk, all in compliance with the rules and regulations of the State Health Department, and I have made other improvements; at times the odor from the creek was unbearable; I received a letter from Dr. Dick (director of the milk division of the Arkansas State Health Department) cutting me off from my land so I could no longer carry on a Grade A Dairy operation, and; in my opinion the value of my land as a Grade A Dairy was $170,000 and is now worth about $70,000. Mr. Emmory Grose, a real estate appraiser living in Fayetteville with eight years experience as an appraiser for the Federal Housing Administration, testified that the market value of appellees' farm was worth $140,000 before the damage but that it is now worth only $66,000. Appellant objects to the testimony of Mr. Weathers on the ground that he gave no basis for the values he fixed, but we held in the case of Housing Authority of City of Searcy v. Angel, 239 Ark. 224, 388 S.W.2d 394, that a property owner who had lived on a piece of property for a long time is 'qualified to give his opinion as to the value of the property both before and after a portion has been taken in a condemnation proceeding, and in this case we cannot say that such evidence is not substantial as to the damages sustained'. Also, we think Mr. Weathers did give some very good reasons to explain the extent of his damage.

3. We fail to see any error in the trial court's refusal to give appellant's instruction on temporary damages. In the first place, appellees' suit was based solely on permanent damages, and appellant's answer on this point was a general denial. In the second place, the jury's verdict excludes any possibility of temporary damages. Also, appellant cites the Anderson case, supra (and other cases), to show that a damage of this nature is permanent and not temporary.

4. When Mr. Weathers was recalled as a witness he was asked about certain instructions he had received from Dr. Dick (Director in the State Board of Health).

Q. 'Did you ask him (Dick) whether or not you could raise feed and feed it to your cattle down there?'

A. 'Yes * * *.'

Q. 'What did he tell you?'

A. 'He said I could not do it.'

Q. 'What about pasturing your cattle down there that were dry?'

A. 'I couldn't do that either.'

The above was objected to as hearsay evidence.

For several reasons, we are of the opinion that no reversible error was committed by the trial court in admitting this testimony.

In the first place the testimony was cumulative, it already having been established that appellees could not operate a Grade A Dairy because of the permanent injury to his farm. It could only tend to prove appellees might use some of the land for general farm purposes--a fact which had been admitted by appellee. Also, Dr. Dick testified that he had visited the farm twice and had told Mr. Weathers that the existing condition was 'a violation of the Grade A regulations', and that his 'permit' would be cancelled. In addition to the above we feel that, under the facts revealed by the testimony in the record, the testimony elicited from Weathers relative to his conversation with Dr. Dick was not for the purpose of proving any material issue in the case but merely to show Weathers had received certain instructions from Dr. Dick (a public official) which he was compelled to follow if he continued to run the dairy. In the case of Motors Insurance Corporation v. Lopez, 217 Ark. 203, 229 S.W.2d 228, where a similar issue was raised, we find this statement:

'A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be...