City of Tucson v. Apache Motors

• Decision Date: 09 June 1952
• Docket Number: No. 5526,5526
• Citation: 74 Ariz. 98,245 P.2d 255
• Parties: CITY OF TUCSON v. APACHE MOTORS et al.
• Court: Arizona Supreme Court

Page 255

245 P.2d 255

74 Ariz. 98

CITY OF TUCSON v. APACHE MOTORS et al.

No. 5526.

Supreme Court of Arizona.

June 9, 1952.

Udall & Udall, of Tucson, for appellant.

Darnell, Robertson & Holesapple, Knapp, Boyle, Bilby & Thompson, of Tucson, for appellees.

PHELPS, Justice.

This is a case in which a number of persons joined as parties plaintiff in an action against the city of Thcson to recover damages alleged to have been sustained by them as a result of water being cast upon their premises due to the closing of an adjacent arroyo and negligently failing to construct openings or conduits of sufficient size to adequately carry away the water which they say would otherwise have flowed unobstructed down through the arroyo. Judgment was rendered in favor of plaintiffs from which this appeal is prosecuted.

The city of Tucson did the construction work of which complaint is made, between February 1925 and February 1931. It undertook to make the improvements upon the written petitions of the property owners along the arroyo, some of whom are plaintiffs in the instant case.

The arroyo in question runs in a northwesterly direction in down town Tucson and drains a watershed of approximately 21 square miles lying in a southeasterly direction from the area alleged to have been affected by such surface flood waters. These floods occur intermittently and only when the rainfall is heavy in all or part of the above mentioned watershed. The first flood occurred in 1933. Repetitions thereof occurred in 1935, 1937, 1939, 1940, 1943 and again in 1948, the latter being the subject of this litigation.

In 1940 after suits had been filed the city made settlements with most of these plaintiffs who were then owners of the property now involved and which was flooded at that time. After the 1943 flood, actions were brought by a number of property owners including most of the plaintiffs in the instant case based upon the negligence of the city in failing to provide adequate openings to contain and carry away the flood waters flowing down the arroyo without damage to the plaintiffs. The plaintiffs prevailed in those actions and the judgments of the trial court were affirmed by this court in the cases of City of Tucson v. O'Rielly Motor Co., 64 Ariz. 240, 168 P.2d 245; City of Tucson v. Apache Motors Co., 64 Ariz. 251, 168 P.2d 253. The outlets provided by the city to carry the water away consisted of two concrete culverts 10 X 10 feet which were laid in the bed of the arroyo or on a level therewith.

The arroyo has a large swale or lower area on both sides of the actual stream bed arising gradually to slightly higher land. The evidence does not disclose just how wide the swale is but the property of plaintiffs is situated in the immediate vicinity of the stream bed and within the adjacent swale area. The culverts have been covered and buildings have been erected over them by some of the plaintiffs.

The city has presented a number of assignments of error for our consideration, the first of which is that the court erred in entering judgment for plaintiffs and in denying its motion for judgment notwithstanding the verdict. This assignment of error is based upon the proposition of law that the construction of the culverts in question was permanent in character and therefore constituted a permanent nuisance. This being true, the city claims that plaintiffs had but one cause of action against the city which they exercised in 1943. Plaintiffs, on the other hand, claim that they have a new cause of action for each successive injury sustained.

We believe the general rule to be that if a nuisance falls within the definition of a permanent nuisance ordinarily the cause of action arises immediately upon the creation of the nuisance and all damages past, present and future, must be recovered in one cause of action and that the measure of damages to the realty is the difference between the market value of the premises immediately before and its market value immediately after the completion of the structure creating the nuisance. This is not always the rule, however, as will be hereinafter shown. On the other hand if the nuisance is temporary or continuing, a cause of action arises upon the occurrence of each successive injury sustained. Much confusion has arisen in the various jurisdictions of the United States as to just what constitutes a permanent nuisance as distinguished from a temporary or continuing nuisance so as to entitle the injured person to recover all damages sustained in one cause of action and what elements must concur to start the statute of limitations to running against the injured party. Perhaps it might be more accurate to say that the confusion arises more from an application of the facts in each case to the rule of law defining a permanent nuisance.

We said in City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30, 35, that:

'* * * if a nuisance is of such a nature that although the thing itself may continue, yet its injury to another may be abated by human agency, and the owner or perpetrator of the nuisance fails to abate it, the nuisance is a continuing one, and one action does not exhaust the remedies of the parties injured. If, however, the thing is of such a character that it cannot be maintained without continuing to be, in the legal sense, a nuisance, it is permanent in its nature, and the rights of the injured party are exhausted by one action.'

The court said in Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470, 95 S.W.2d 1, at page 4 thereof, that '* * * it is essential to ascertain and decide whether the nuisance complained of was of a permanent or temporary character. If it be permanent, usually it is necessary that it be created by the inherent character of the structure or business, and that its lawful and necessary operation creates a permanent injury; but where the structure or the business when properly conducted and operated does not constitute a nuisance and only becomes such through regligence, it is temporary. (Citing cases.) * * *'

The court continuing said:

'* * * If the structure is in character relatively enduring and not likely to be abated, either voluntarily or by an order of court, it is generally held that the nuisance is a permanent one; and if the prospective damages resulting therefrom can be estimated with reasonable certainty, the diminution of the value of the property is immediately recoverable as damages. (Citing cases.)'

In Shelley v. Ozark Pipe Line Corporation, 327 Mo. 238, 37 S.W.2d 518, 519, 75 A.L.R. 1316, based upon the construction of an oil pipe line from which it was charged oil was leaking, in defining temporary and permanent nuisance the court said:

'In order for a nuisance to be permanent, it is usually necessary that the nuisance be created by the inherent character of a structure or business and that its lawful and necessary operation creates a permanent injury. Where, however, the structure or character of the business, when properly conducted and operated, does not constitute a nuisance, but only becomes such through negligence, then the nuisance or injury is temporary and abatable. * * *'

In Pahlka v. Chicago, R. I. & P. R. Co., 62 Okl. 223, 161 P. 544, the court said at[74 Ariz. 103] page 550 in stating what is not a permanent nuisance:

"When a cause of injury is abatable, either by an expenditure of labor or money, it will not be held permanent.' (Citing cases.)'

The court then said in explanation of that statement:

'It may be said that, in its exact expression, this rule bears a contradiction, in that every human edifice might be altered by the expenditure of labor or money, and that therefore, under the strict letter of the rule, no artificial improvement could be permanent. However, the spirit of the rule contemplated an extension of its effect, not expressly stated in the former decisions of this court. Giving it such an express extension, the rule would be that a negligent condition in an artificial structure, permanent in its nature, will not be held permanent if such negligent condition is abatable by an expenditure of either labor or money and such abatement is consistent with the rightful use and maintenance of the structure.'

Where the nuisance is temporary or continuing the cause of action arises and the statutes of limitation begin to run from the successive dates upon which the injury occurred. On the other hand, although the nuisance may meet the requirements of the usual definition of a permanent nuisance in that the structure or business is permanent in nature, that it is lawful constructed by a corporation having the power of eminent domain and that its operation therefore may not be abated through court action and that its operation will result in some damage it is held in the majority of jurisdictions that if the injury is not contemporaneous with the completion of the structure or if it cannot be said with certainty that damages will flow therefrom, or if its nature and extent cannot be reasonably ascertained or estimated; or stating it in another way, if it is known merely that damage is probable or that even though some damage is certain but that its nature and extent cannot be reasonably known or fairly estimated but is merely speculative or conjectural then the damage is not original, and the cause of action, in such event, arises and the statute of limitations begins to run upon the occurrence of each injury. Chicago R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W. 127, L.R.A. 1916E, 962; Murduck v. City of Blackwell, 198 Okl. 171, 176 P.2d 1002; Missouri Pac. R. Co. v. Davis, 186 Ark. 401, 53 S.W.2d 851.

In the case of Pahlka v. Chicago R. I. & P. R. Co., supra, the court said:

'Regardless of the question of the permanence of the improvements, the right to action for injuries does not necessarily accrue at the time of the construction of the improvement. In cases of injuries resulting from permanent improvements,...