Cunningham v. Town of Tieton, 35973
| Decision Date | 30 August 1962 |
| Docket Number | No. 35973,35973 |
| Citation | 60 Wn.2d 434,374 P.2d 375 |
| Parties | Pat CUNNINGHAM and Betty Cunningham, his wife; Jewel Riggle, Individuaily and as Administratrix of the Estate of Dick Riggle, deceased; Lloyd Perdue and Cleo Perdue, his wife; and William Scherer and Mary A. Scherer, his wife, Respondents, v. The TOWN OF TIETON, a municipal corporation, Appellant. Emil Fred PROKOP and Dortha D. Prokop, his wife; and Henry Moltke and Gwendolyn Moltke, his wife, Respondents. v. The TOWN OF TIETON, a municipal corporation, Appellant. |
| Court | Washington Supreme Court |
Velikanje & Moore, Yakima, for appellant.
Gavin, Robinson & Kendrick and Robert R. Redman, Yakima, for respondents.
This is a reverse eminent domain proceeding in which the respondent resident property owners recovered for unconstitutional damage to their properties adjacent to a sewage lagoon constructed and maintained by the town of Tieton in Yakima County.
The first five assignments of error challenge the sufficiency of the evidence while the remaining seven relate to instructions given or refused. We find no error and affirm.
The appellant constructed the lagoon above the wells which constituted the sole domestic water supply of the respondents. All of the sewage from the town, aggregating 80,000 gallons per day, is deposited in the lagoon. Some of the sewage evaporates, but the balance percolates the water table and contaminates respondents' domestic water supply.
No useful purpose would be served by a detailed narrative of the evidence. There was proof of sewage odors penetrating the homes of two of the respondents. Some witnesses for the appellant testified that they had been in that vicinity but had not noticed such odors.
It is beyond controversy that the town daily discharged 80,000 gallons of sewage effluent into the lagoon. The proof was ample that the water table was raised after the appellant's sewage facility was placed into operation.
There was proof that the well of each respondent had been polluted and contaminated by the sewage effluent from the appellant's disposal system. Since the contamination, respondents, in consequence, have transported water for domestic use. Respondents' proof showed that the domestic water supply had been tested prior to the installation of the appellant's sewage facility and that all such tests were favorable. Since then, however, all of the respondents had received reports of adverse tests which frequently disclose the presence of coliform bacteria. Such organisms live in the human intestine. There was substantial proof that the sewage effluent carried virus which is harmful to the health of human beings. There was ample proof from which the jury could conclude, and apparently did conclude, that the domestic water supply of each respondent had been rendered unfit for human consumption by the operation of the appellant's sewage disposal system.
Appellant's defense was that the sewage effluent, percolating in the underground waters, had been rendered harmless by scientific treatment. Both sides presented the testimony of experts respecting tests which they had performed to ascertain if the sewage effluent found its way into the respondents' wells. That testimony is in irreconcilable conflict, but that determination was the function of the jury and not this court.
Each of the respondents testified to the fair market value of his property both before and after the construction and operation of the lagoon. The verdicts for the respondents were from $1,500 to $5,000, and each award was well within the range of the evidence.
Appellant's counsel rigorously cross-examined each respondent respecting the value of his property. Anything elicited on the cross-examination affected the weight to be given to such testimony, but that determination was exclusively for the province of the jury.
The decisional law leaves no room for doubt that the owner may testify as to the value of his property because he is familiar enough with it to know its worth. State ex rel. Bremerton Bridge Co. v. Superior Court, 194 Wash 196, 77 P.2d 800; Weber v. West Seattle Land & Imp. Co., 188 Wash. 512, 63 P.2d 418; Wicklund v. Allraum, 122 Wash. 546, 211 P. 760. 1
The proofs of the fugitive sewage contaminating the water supply of each respondent hardly leave room for argument respecting the certainty of damage. The fact of damage being established, the appellant cannot be immunized because of uncertainty anent the amount. This was recently examined in some detail in Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53 Wash.2d 96, 330 P.2d 1068. 2 Uncertainty as to whether there has been damage may be fatal, but we are not confronted with that situation. It is scarcely open to argument that the purchase price of the property would be affected by the fact that the only domestic water supply was contaminated with sewage.
All of the assignments of error respecting the insufficiency of the evidence to sustain the verdict are, therefore, without merit.
We now turn to the claimed errors respecting the instructions.
In the very first instruction, the jury was told that it could not single out any one instruction for undue emphasis but must consider them as a whole. If this were not so, it would be impossible to give separate instructions. Each instruction must be considered in the light of every other instruction. Pement v. F. W. Woolworth Co., 53 Wash.2d 768, 337 P.2d 30; Lozan v. F. O. E., Aerie No, 3, 53 Wash.2d 547, 335 P.2d 4; Cote v. Allen, 50 Wash.2d 584, 313 P.2d 693.
Appellant assigns error on the refusal of the trial court to submit special interrogatories to be answered by the jury in addition to a general verdict. Both Brown v. Intercoastal Fisheries, 34 Wash.2d 48, 207 P.2d 1205 and Salo v. Nelson, 22 Wash.2d 525, 156 P.2d 664, 3 decided that submitting special interrogatories or declining to do so was entirely within the discretion of the trial court and would not be reviewed on appeal. We find no abuse of discretion and none is suggested.
Appellant assigns error to an instruction which defines 'nuisance' in the statutory language (RCW 7.48.010).
The substance of the argument 4 is that damaging by nuisance is something other and in addition to the constitutional prohibition against damaging private property. But this is not so. The proofs show an unconstitutional damaging by nuisance. The court properly instructed the jury respecting the measure of damage. The assignment was completely disposed of adversely to the appellant's claim in Southworth v. Seattle, 145 Wash. 138, 140, 259 P. 26, in which we said:
'The instruction complained of, to say the least, could in no way harm the city, but of course what was meant and said was that, in determining the question of whether or not respondents' property had been damaged within the purview of the constitutional provision, they could take into consideration those things clearly defined by the statute which, under all authorities, constitute damage. * * *'
An additional objection is made that the instruction did not require the respondents to prove the nuisance by a 'preponderance of the evidence.' But this was adequately dealt with elsewhere. 5
The appellant assigns error to the instruction set out in the margin. 6 Two of the objections urged in the brief were not in the exceptions and cannot be considered. Ralston v. Vessey, 43 Wash.2d 76, 260 P.2d 324.
The argument is made that the instruction failed to limit the jury's consideration to odors or contamination reaching the plaintiffs' properties. The simple answer is that the instruction was not applicable at all unless and until the jury found that the property of any of the plaintiffs had been damaged by the offensive odors or contamination reaching their properties. The jury was advised in other instructions that it would have to find by a fair preponderance of the evidence that the offensive odors or pollution invaded the plaintiffs' properties before a verdict for the plaintiffs could be returned.
The second point of the argument is that there is a difference in the meaning of 'contamination' and 'pollution' and that it was error to use both. The record discloses that many witnesses used the words interchangeably, and the instruction must be so understood. It was so considered in the trial.
The principal argument is that there was no evidence from which it could be said that the minds of purchasers would be affected by fear of offensive odors or contamination or pollution of the well in the minds of a prospective purchaser. Evidence on this question is unnecessary because the matter dealt with was a hypothetical purchaser who was both willing and informed. Factors affecting the market value of real estate in a hypothetical market involve what would happen in the event of a specified contingency, not what has actually occurred. 7
For present purposes, we must assume that a fully informed purchaser would...
To continue reading
Request your trial
-
Kaech v. Lewis County PUD
...property. Port of Seattle v. Equitable Capital Group, Inc., 127 Wash.2d 202, 211, 898 P.2d 275 (1995) (quoting Cunningham v. Tieton, 60 Wash.2d 434, 436, 374 P.2d 375 (1962)). Here, John testified about the decline in the farm's value as Q: Since this has happened, Mr. Kaech, what if anythi......
-
Van Dissel v. Jersey Central Power & Light Co.
...Wilson v. State Road Department, 201 So.2d 619 (Fla.Ct.App.1967), cert. den. 207 So.2d 690 (1967); Cunningham v. Town of Tieton, 60 Wash.2d 434, 374 P.2d 375 (Sup.Ct.1962); Douglas County v. Abercrombie, 119 Ga.App. 727, 168 S.E.2d 870 (1969); Commonwealth Department of Highways v. Watson, ......
-
Thomas Ctr. Owners Ass'n v. Robert E. Thomas Trust
...in tort for losses arising from what may today be classified as environmental contamination. See, e.g., Cunningham v. Town of Tieton, 60 Wash.2d 434, 435, 438-39, 374 P.2d 375 (1962) (affirming a judgment wherein a town was held liable for "an unconstitutional damaging by nuisance" because ......
-
Tolu v. District of Columbia, No. 05-TX-92.
...(2001) (environmental assessment showing contamination done before tax assessment years showed). In Cunningham v. Town of Tieton, 60 Wash.2d 434, 374 P.2d 375, 377, 380 and n. 7 (1962), on which petitioners rely, the issue was not whether a hypothetical buyer would know of contamination, bu......