Conkin v. Ruth
| Decision Date | 23 November 1976 |
| Docket Number | No. 2,No. 48851,48851,2 |
| Citation | 1976 OK CIV APP 57,581 P.2d 923 |
| Parties | Howard L. CONKIN and Juanita Conkin, Appellees, v. Jimmie RUTH, d/b/a Jimmie Ruth Oil Company and Johnson Construction Company, Appellant |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court, McIntosh County; Marshall Warren, trial judge.
Action to enjoin diversion of surface water flow and for damages to land and for trespass and nuisance. Trial court made an award to landowner based on permanent damages to land. Defendant appeals.
REVERSED AND REMANDED WITH INSTRUCTIONS.
John D. Boydston, Boydston & Burnham, Eufaula, for appellees.
R. Richard Hutton, Woodliff & Hutton, Henryetta, for appellant.
The parties own adjoining tracts of land in McIntosh County, Oklahoma. Plaintiffs Conkin filed this action for damages from defendant Ruth and injunctive relief against the continuance of (a) diversion of surface water flow, (b) a nuisance, and (c) trespassing, which are alleged to have resulted from Ruth's construction of a service station and restaurant on his tract. Treating the case as one in equity the parties tried it to the court who, after hearing and seeing a substantial amount of evidence, granted plaintiffs a $11,750 judgment. Ruth appeals contending plaintiffs should have been awarded nothing; or in any event not so much.
The issues made up by the pleadings 1 are whether defendant (1) rearranged the surface of his land so as to injuriously divert the flow of surface water onto plaintiffs' property? (2) trespassed on plaintiffs' land with regard to disturbing a fence and the building of a drainage ditch? (3) created and maintained a private nuisance in the form of an unsanitary and unbearably stinky "human waste septic pool"?
In his memorandum decision the trial judge recited that he "finds generally for the Plaintiff and against the defendant's cross petition." He further stated that he was most impressed by the testimony of one of plaintiffs' witnesses, a professional appraiser, who "approached the subject of damages in a most professional way." This witness, continued the judge, after testifying that the "sewage lagoon" diverted the former flow of the surface water causing damage to plaintiffs' abutting land, opined that plaintiffs' land was worth $23,000 before the diversion, and only $11,250 afterward. The difference of $11,750, concluded the judge, is plaintiffs' damage according to Lynn v. Rainey, Okl., 400 P.2d 805 (1965).
Evidence there is to sustain the trial court's finding insofar as liability is concerned, but not as to the amount of damages awarded. Before engaging the subject of damages, however, we ought to mention that we cannot understand what there is about Lynn that prompted the trial judge to think it controlled the facts of this case. About the only thing relevant in Lynn is its recitation of the long-standing rule in this state relating to surface waters, i. e., that the common law "common enemy doctrine" is in force as "modified by the rule of reason." Otherwise the case is of no help either factually or legally. It involved an action for a mandatory injunction to make an adjoining landowner remove a dam he built to prevent drainage of a ditch dug by plaintiffs across their land through which was to flow surface water drained from their land. The high court, in denying plaintiffs' relief, said they had no right to create and impose on defendants an artificial flow of surface water. And under these circumstances the court would not enjoin defendants from taking steps to protect their acreage by building an earthen dam to block that flow even though the result was a flooding of plaintiffs' land.
Coming back to the question of damages, it is clear that the trial judge awarded plaintiffs compensation for permanent damages to their land apparently resulting from the consequences of surface water flow diversion. This was error because plaintiffs did not allege they have suffered permanent damage and the evidence in the record does not support a finding that they did. Moreover the court failed to deal specifically with the issue of what damages arose from the trespass and nuisance the other two injuries found to have been inflicted on plaintiffs by defendant.
The measure to be applied in compensatorily assessing "temporary" damage to realty arising out of the diversion of surface water flowage is the reasonable costs of repairing the damage, restoring the land to its prediversion state, or otherwise abating the detriment, if such cost is less than the fair prediversion value of the property. Allied Hotels, Ltd. v....
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Truelock v. City of Del City
...had to be living in the house in order to recover inconvenience, annoyance, and discomfort damages, Del City relies on Conkin v. Ruth, 1976 OK CIV APP 57, 581 P.2d 923; Midwest City v. Eckroat, 1963 OK ----, 387 P.2d 123; City of Shawnee v. Bryant, 1957 OK ----, 310 P.2d 754; City of Bethan......
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...1, 38 Ill.Dec. 228, 403 N.E.2d 316 (1980); Lobozzo v. Adam Eidemiller, Aplnt., 437 Pa. 360, 263 A.2d 432 (1970); Conkin v. Ruth, 581 P.2d 923 (Okl.App.1976); Colella v. King County, 72 Wash.2d 386, 433 P.2d 154 (1967); Butler v. Anderson, 71 Wash.2d 60, 426 P.2d 467 (1967); Bd. of Ed. v. Co......
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MAPCO Alaska Petroleum v. Central Nat. Ins. Co.
...costs serve as a damage measure only to the extent such costs do not exceed the diminished value of the property". Conkin v. Ruth, 581 P.2d 923, 925 (Okla.App.1976). This argument requires exalting the technical, legal definitions of terms over the understanding a reasonable layperson would......
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Mapco Alaska Petroleum v. CENTRAL NAT. INS., A89-470 Civil.
...costs serve as a damage measure only to the extent such costs do not exceed the diminished value of the property". Conkin v. Ruth, 581 P.2d 923, 925 (Okla.App.1976). This argument requires exalting the technical, legal definitions of terms over the understanding a reasonable layperson would......