Frank v. Environmental Sanitation Management, Inc.

• Decision Date: 02 April 1985
• Docket Number: No. 66244,66244
• Citation: 687 S.W.2d 876
• Parties: Andrew FRANK, et al., Respondents, v. ENVIRONMENTAL SANITATION MANAGEMENT, INC., Appellant.
• Court: Missouri Supreme Court

Page 876

687 S.W.2d 876

Andrew FRANK, et al., Respondents, v. ENVIRONMENTAL SANITATION MANAGEMENT, INC., Appellant.

No. 66244.

Supreme Court of Missouri En Banc.

April 2, 1985.

Rehearing Denied April 30, 1985.

Thomas H. Rost, Charles R. Miller, Jefferson City, for appellant.

F. Joe DeLong, III, Jefferson City, John E. Turner, Kansas City, for respondents.

BILLINGS, Judge.

Plaintiff landowners sued Environmental Sanitation Management, Inc., [ESM], owner of a landfill, and the individuals owning ESM, for damages by reason of ESM's maintenance of a permanent nuisance. A jury awarded plaintiffs actual damages against ESM and the court of appeals affirmed. We granted transfer to reexamine existing law and review the case as an original appeal. Mo. Const. art. V, § 10, 1945. We affirm.

ESM opened the landfill in 1973 and operated it until 1979. The landfill was located near Jefferson City and on land that had previously been used for farming. Although the land was not of the proper amount or type of soil to insure leachate would not escape into the groundwater, it was assumed leachate could be contained by proper management.

A creek runs along a part of the landfill and across lands of plaintiffs. Plaintiff used their lands to farm, raise beef cattle, and maintain dairy herds. The water in the creek had been used by plaintiffs in their various farming operations since the 1950's.

ESM deposited all types and kinds of household, commercial and industrial garbage and waste in the landfill, including paint thinner, chemicals, fingernail polish and remover, hand cream, perfume, sewage sludge, oil and dead animals. As waste was deposited in an area of the landfill, it would be compacted and a layer of soil spread over it. This regular procedure was followed until the particular area was full. Then a final layer of soil was applied and the area seeded.

Rainwater and surface water can infiltrate the compacted layers, or "cells", of the landfill. Such water picks up contamination from the organic and chemical wastes. The contaminated water moves both down and laterally and can invade underground and surface sources of fresh water--such as the creek. The contaminated water, together with the residue it carries, is called leachate--described as polluted, discolored, foul-smelling scum.

In 1974 there was a small outbreak of leachate at the landfill but it was quickly brought under control. However, beginning in 1977 substantial amounts of leachate from the landfill ended up in the creek. The creek was still polluted with leachate at time of trial in November, 1982. Prior to 1977 the creek water was clean and pure and free of pollution. Plaintiffs were able to use it in their farm operations, including the watering of their livestock. After 1977 the leachate polluted the stream to the extent that the water was dirty and discolored; the creek and adjoining areas had the odor of decaying organic material described as smelling like rotten eggs or hog manure. Aquatic life in the creek died. Because the leachate polluted the creek water with certain chemicals considered harmful to humans and animals, plaintiffs prevented their livestock from drinking the water. Additionally, there was expert testimony that the continued leachate contamination of the creek had permanently reduced the value of plaintiffs' lands.

Defendant contends the verdict directing nuisance instruction was improper because the pleadings and evidence did not show that an intentional act caused the leachate to escape. The trial court used MAI 22.06 as the nuisance verdict director for all plaintiffs:

Your verdict must be for plaintiffs and against defendant Environmental Sanitation Management, Inc., if you believe:

First, plaintiffs used their property as a farm, and

Second, defendant Environmental Sanitation Management, Inc. operated a landfill upstream to plaintiffs' farm, and

Third, ill-smelling odors and leachate escaped from defendant Environmental Sanitation Management, Inc.'s premises onto plaintiffs' property and this substantially impaired plaintiffs' use of their property, and

Fourth, such use by defendant Environmental Sanitation Management, Inc. of its property was unreasonable.

We recognize there is a conflict between the instruction and its notes on use. ¹ The notes on use say the instruction has limited application as explained in the Committee's Comment. The comment cites as authority the Restatement (Second) of Torts § 822 (1965) which requires a focus on a defendant's conduct. ² The instruction makes no mention of defendant's conduct. Defendant relies upon the Restatement view. We hold the Restatement does not accurately reflect Missouri's nuisance law and the trial court properly instructed the jury.

Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his property. Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo.1943). The focus is defendant's unreasonable interference with the use and enjoyment of plaintiff's land. Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787, 791 (Mo.App.1980). Nuisance is an effect rather than a cause of tort liability and conduct antecedent to the interference may be irrelevant. Id. ³ Nuisance is a condition and does not depend on the degree of care used; it depends on the degree of danger existing with the best of care. White v. Smith, 440 S.W.2d 497 (Mo.App.1969). The law of nuisance recognizes two conflicting rights: property owners have a right to control their land and use it to benefit their best interests; the public and neighboring land owners have a right to prevent unreasonable use that substantially impairs the peaceful use and enjoyment of other land. Clinic & Hospital, Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384 (1951). The unreasonable use element of nuisance balances the rights of adjoining property owners. Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983).

The crux of a nuisance case is unreasonable land use. The broad categories within which previous cases fit illustrate ways to prove unreasonable land use; they are not exclusive. It may be beneficial for plaintiffs to attempt to plead their cases into recognized categories but the law of nuisance, which is based on a balancing of interests, must remain uniquely receptive to new ways of demonstrating unreasonable use.

The easiest way to show a nuisance is to prove defendant's conduct is unreasonable as a matter of law. This category may be called nuisance per se. In Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119 (1940), a funeral home in a purely residential neighborhood was held to be a nuisance. The unreasonable use element was assumed and an injunction issued. There was no allegation of improper conduct. The court cited previous authority rather than the facts of the case to demonstrate the injury funeral homes impose on residential neighborhoods. Operation of a landfill in a rural area is not a nuisance per se.

A nuisance may be found as a factual matter independent of prior cases and conduct. In Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo.1943), the Court noted:

There is no exact rule or formula by which the existence of a nuisance or the nonexistence of a nuisance may be determined. 'Necessarily each case must stand upon its own special circumstances, and no definite rule can be given that is applicable in all cases, but when an appreciable interference with the ordinary enjoyment of property, physically, is clearly made out as the result of a nuisance, a court of equity will never refuse to interfere, ....' Wood, Nuisances, § 801

Id. at 805. In Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728 (1948), plaintiffs were injured because of fumes and mists that eminated from defendant's plant. Although the court held for defendants on a negligence issue it emphasized that it could sustain an award if nuisance was its basis. As a factual matter defendant's use of land was unreasonable. In Fuchs v. Curran Carbonizing and Engineering Co., 279 S.W.2d 211 (Mo.App.1955), a tavern owner sued for injuries sustained because defendant's plant emitted air pollution. A submissible case of nuisance was established on three facts. First, emissions of fumes from defendant's plant invaded plaintiff's premises. Second, the emissions injured plaintiff. Third, proper circumstances were shown--probably unreasonable use. In Clark v. City of Springfield, 241 S.W.2d 100 (Mo.App.1951), plaintiff proved defendant operated a sewer with a drainage system near his property. When too much water accumulated the drainage system would flood and deposit garbage and manure on plaintiff's land. This was a nuisance whether the action was done intentionally or negligently. In Greene v. Spinning, 48 S.W.2d 51 (Mo.App.1931), the fact that cars pulling into defendant's filling station cast bright lights into plaintiff's house created an actionable nuisance. Finally, in Haynor v. Excelsior Springs Light, Power, Heat & Water Co., 129 Mo.App. 691, 108 S.W. 580 (1908), the court held defendant liable in nuisance because it operated a gas manufacturing plant that polluted nearby water and a well. Plaintiff's action arose because defendant used the water course as a sewer, plaintiff sustained injury to her property, and there was a causal connection between the two facts. ⁴ In the instant case, the verdict director required a finding of unreasonable use. That was sufficient. The jury had sufficient evidence to conclude ESM's use of its land in a manner that created leachate was unreasonable.

Nuisance may also rest upon a continuing known invasion. Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. banc 1974), involved consolidated nuisance suits for damages resulting from the flooding of plaintiffs' property. Construction on defendant's property diverted water and caused floods and the evidence was ample to show a continuing...