Cleveland, C., C. & St. L. Ry. Co. v. King

• Decision Date: 02 January 1900
• Citation: 55 N.E. 875,23 Ind.App. 573
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. KING.
• Court: Indiana Appellate Court

23 Ind.App. 573

55 N.E. 875

CLEVELAND, C., C. & ST. L. RY. CO.

v.KING.

Appellate Court of Indiana.

Jan. 2, 1900.

Appeal from circuit court, Ripley county; Willard New, Judge.

Action by Anna M. King against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John T. Dye, John O. Cravens, and Elliott & Elliott, for appellant. J. H. Connelly, F. S. Jones, and Gavin & Davis, for appellee.

COMSTOCK, J.

The complaint alleges: That appellant created and maintained a nuisance, to the damage of her property and the comfortable enjoyment thereof. The acts complained of consisted in casting into a large pond adjacent to appellee's premises car loads of dirt and offensive material, causing thereby the water to become foul and poisonous. Appellee's dwelling house and premises were located some 100 feet from the pond, and, before the acts complained of, were used for the purposes of a residence by herself and two children. The water of the well on the premises was polluted by underground drainage from said pond, and rendered unfit for use. That by reason of the placing of the offensive substances in said pond, and the stenches arising therefrom, she and her children were made sick, and her property was damaged in the sum of $1,000. And that she suffered irreparable loss in the sum of $3,000. A verdict was returned against appellant, upon which judgment was rendered in favor of appellee for $900. With the general verdict, answers to interrogatories were returned. Appellant's motions for a new trial and for judgment on the answers to interrogatories were overruled. These rulings of the court are assigned as error. Among the reasons for a new trial are the following: (1) “The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) error in the assessment of the amount of the recovery, the same being too large.” The nuisance, as shown by the evidence, was caused by throwing deleterious substances into a pond which had been used for the purpose of supplying water for the engines of appellant. The offensive stenches were not observed until the spring of 1896.

During the progress of the trial objections were made to certain testimony offered by the appellee. “After said objection was made by the defendant, the court thereupon requested plaintiff to state the theory of her complaint,-whether she was seeking to recover for a permanent injury to property, or for a continuous wrong. Plaintiff's attorney thereupon stated to the court and counsel for defendant that the theory of the complaint was for permanent damages to plaintiff's property. The court thereupon announced that it would be so considered and treated, and he would so instruct the jury. Defendant's counsel thereupon stated that they were satisfied, if that was the theory of plaintiff's case, and would not object to the testimony.” To the theory thus announced, appellee must be held. Railroad Co. v. Renicker, 8 Ind. App. 404, 35 N. E. 1047;Railway Co. v. Duggan (Ind. App.) 48 N. E. 238, and authorities there cited. It follows that the question presented is, does the evidence show a permanent nuisance? Where the injury is of a permanent character (that is, one that cannot be discontinued), there is a permanent injury. If the evidence fails to show a permanent injury, the theory of the complaint is not supported, and the verdict must be contrary to law. Railroad Co. v. Renicker, supra; Insurance Co. v. Stout, 135 Ind. 444, 33 N. E. 623. The pond in question was not constructed by appellant. The evidence does not show that the pond itself constituted a nuisance. The injury was caused by throwing filth into the water. The question is not here presented whether, upon proper complaint, appellee could recover damages for injuries during the existence of the nuisance, and up to the time of the commencement of the action, but whether she can recover upon proof of temporary injury. A nuisance which may be discontinued is not a permanent one. Lurssen v. Lloyd, 76 Md. 360, 25 Atl. 294;Pond v. Railway Co., 112 N. Y. 186, 19 N. E. 487. In Nashville v. Comar, 88 Tenn. 415, 12 S. W. 1027, 7 L. R. A. 465, it was said, “The law will not presume the continuance of a wrong.” In Sutherland on Damages (section 1039) it is said, “In the first suit for such a nuisance it cannot be proved, nor will the law assume, that the injury will continue.” In Steinke v. Bentley, 6 Ind. App. 663, 34 N. E. 97, this court said, “While there may be some difference of opinion upon the proposition, we think the correct rule is that in such a case as this it may be reasonably anticipated that the wrongdoer will remove the cause of the injury, rather than respond in continued damages.” The foregoing authorities warrant two propositions: (1) That the presumption is that a nuisance that can be abated will be abated; (2) that damages as for a permanent injury to property cannot be recovered “for an injury which might never occur.” A nuisance may be of a permanent character, but one which may be discontinued, and which the law presumes will be, is not of that character. Where the wrong constituting the nuisance is not permanent, but may be discontinued, the measure of damages is not the depreciation in the value of the property. Baugh v. Railroad Co. (Tex. Sup.) 15 S. W. 587;Pond v. Railway Co., 112 N. Y. 186, 19 N. E. 487;Brewing Co. v. Compton, 142 Ill. 511, 32 N. E. 693; Bare v. Hoffman, 79 Pa. St. 71; Johnson v. Porter, 42 Conn. 234;Aldworth v. Lynn, 153 Mass. 53, 26 N. E. 229, 10 L. R. A. 210. The following cases draw the distinction between permanent and temporary nuisances: Hargreaves v. Kimberly, 26 W. Va. 196;Watts v. Railroad Co., 39 W. Va. 196, 19 S. E. 521, 23 L. R. A. 674;Smith v. Railroad Co., 23 W. Va. 453. In Hargreaves v. Kimberly, supra, evidence was admitted showing a permanent depreciation in value. The court held this was error, saying, “Here the cause may be removed, and it is supposed will be, by the defendant, rather than submit to having the entire damages recovered against him as for a permanent injury, or to suffer repeated recoveries as long as the cause of the injury continues. The court erred in admitting this evidence, and the judgment will have to be reversed.” It not appearing that the nuisance in the case before us cannot be abated (the presumption being that it will be abated), it must be held to be temporary, within the meaning of the law. In such case the measure of damages is the injury to the use of the property,-the depreciation in the rental value. Jackson v. Kiel, 13 Colo. 378, 22 Pac. 504, approved the rule stated by Suth. Dam. § 414. It is there stated: “The right to recover, if established, includes the depreciation of rental value; by the difference, in other words, between the rental value free from the effects of the nuisance and subsequent to it.” In Shirely v. Railway Co., 74 Iowa, 169, 37 N. W. 133, the court said: “The alleged nuisance is not necessarily a permanent one, but may be abated at any time by the defendant. Plaintiff would not have been entitled to recover the full value of his property, even though he had shown that it was valueless while the nuisance existed, because it might prove to be but temporary. Hence the depreciation in the rental value, under the facts in this case, was the proper measure of the plaintiff's recovery.” Loughran v. City of Des Moines, 72 Iowa, 382, 34 N. W. 172. The recent case of City of New Albany v. Lines (Ind. App.) 51 N. E. 346, was an action for damages occasioned by reason of a street and sewer improvement. By reason of the construction of the street, and the insufficiency of the sewer pipe to perform its office, the surface water and drainage were thrown back upon the premises of plaintiff, rendering it less desirable as a place of residence. By reason of the accumulation of unwholesome animal and vegetable matter, stenches and vapors arose therefrom, making appellee sick, and compelling him to move out until he recovered his health. Appellee was unable to rent said premises, by reason of the conditions aforesaid, and the value of the real estate was greatly reduced. The court, by Black, J., said: “It is not to be presumed that the city will continue indefinitely to maintain such a condition, injurious not merely to property owners immediately adjacent, but also to all residing within reach of the offensive and unwholesome vapors so produced, or that it will not provide means whereby the water so collected will cease to be thrown back upon the adjacent private property; nor can the plaintiff, by bringing such an action as this, be regarded as accepting such a condition as permanent, and agreeing that it is never to be remedied by the city.”

The learned counsel for appellee have cited numerous decisions as upholding the judgment of the trial court, and we briefly refer to them: In Light Co. v. Porter (Ill.) 47 N. E. 206, it was held that when an electric light plant, the operation of which must permanently injure adjacent premises, was constructed and tested by one person, and sold by him to another, who operated it, an action for damages might be maintained against either or both, but only one recovery could be had. The court stated in the opinion that there was no want of evidence that the steam, smoke, ashes, soot, and cinders cast upon plaintiff's premises, with the jarring and vibrating resulting from the operation of the plant, had materially damaged the plaintiff's property. In Railway Co. v. O'Maley (Tex. Civ. App.) 45 S. W. 227, appellant constructed a railroad on Travis avenue, in Dennison, Tex., and in doing so made a cut in said avenue from 8 to 9 feet in depth along the entire front of appellee's property abutting on said street. Appellee's approach to her property was practically cut off. Appellant had also erected and had in use cattle pens within about 300 feet...