Hillhouse v. City of Aurora

• Decision Date: 17 October 1958
• Docket Number: No. 7704,7704
• Citation: Hillhouse v. City of Aurora, 316 S.W.2d 883 (Mo. App. 1958)
• Parties: E. W. HILLHOUSE and Pauline Hillhouse, Plaintiffs-Respondents, v. CITY OF AURORA, Missouri, a municipal corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 883

316 S.W.2d 883

E. W. HILLHOUSE and Pauline Hillhouse, Plaintiffs-Respondents, v.CITY OF AURORA, Missouri, a municipal corporationDefendant-Appellant.

No. 7704.

Springfield Court of Appeals, Missouri.

Oct. 17, 1958.

William A. Ratican, Jr., J. Hal Moore, Aurora, Royle Ellis, Cassville, for defendant-appellant.

Lincoln, Lincoln, Haseltine, Forehand & Springer, Springfield, Edwin W. Mills, Osceola, William Pinnell, Monett, for plaintiffs-respondents.

STONE, Presiding Judge.

Defendant, City of Aurora, Missouri, appeals from a judgment for $6,600 entered upon a jury verdict in favor of plaintiffs, E. W. and Pauline Hillhouse, for damages sustained during 1955, 1956 and 1957 on account of the pollution of Chat Creek by sewage from the Aurora sewer system.

Chat Creek is a small branch which rises in an old mining area (now abandoned) just east of Aurora and (when running) flows in a westerly direction through the city.In 1923, defendant established and constructed a municipal sewer system, from which raw sewage drained into a large, covered septic tank and, from that tank, into Chat Creek near the west boundary of Aurora.The undisputed evidence was that this discharge of raw, untreated sewage into Chat Creek continued until 1934, when defendant constructed (about one-quarter mile downstream or to the west) and placed in use a sewage disposal plant described as 'the Imhoff tank trickling filter type,' which likewise drained into Chat Creek.The same disposal plant, with 'major repairs,' has remained in operation to date.

Plaintiffs' 114-acre farm is about two miles directly across the fields, but about three miles by the meanderings of Chat Creek, west of and downstream from the disposal plant.Plaintiffs' evidence concerning the condition of the creek covered the period since October 1935, when E. W. Hillhouse, then seventeen years of age, moved onto the farm with his parents.After his father's death in 1940, Hillhouse farmed the land under an agreement with his mother that, if he would pay the loan on the farm, she would convey it to him.Pursuant to that agreement, he paid the loan in 1943, and he and Pauline (whom he married that year) became the beneficial owners of the farm and used it as such until record title was conveyed to them in April 1954.Prior to July 2, 1955, when they moved from the farm because 'we were afraid to live there' on account of the foul odors emanating from, and the swarms of mosquitoes and flies bred in, the sludge-polluted creek, the Hillhouse family (comprised of plaintiffs, their son, and the mother of E. W. Hillhouse) occupied a two-story, five-room brick house situate about one hundred seventy-five feet north of the creek.

Plaintiffs' evidence (not seriously controverted by defendant) was that, during the period from 1935 to 1946, Chat Creek (as it flowed through plaintiffs' land) was a clear, sparkling, odorless, running stream in which perch and minnows abounded; that, about 1946 or 1947, the water in the creek 'began to darken,' a foul odor first became apparent, and fish disappeared from the stream; and, that thereafter the water gradually darkened in color until it became 'black, grayish, slimy looking' and the odor gradually became more pungent and offensive until it was 'similar to a toilet.'Sludge, defined in the record as 'solids that are present in sewage,' became noticeable in the creek at plaintiffs' farm about 1951 and thereafter increased in volume until (as one witness described it) the creek was 'filled with foul smelling sludge' in June 1955.

Defendant's counsel emphasized throughout the trial that the condition downstream from the disposal plant was much worse when the creek was low, and the aggravated situation at plaintiffs' farm during the period from 1953 to 1957 was attributed to the droughts in those years.However, defendant's own evidence confirmed that, during the period from 1934(when the disposal plant was constructed) to 1957, there had been an important and substantial increase in the volume, and (due to 'industrial waste') a material and significant change in the type, of the load imposed on the municipal sewer system and disposal plant.And, the Mayor of defendant city frankly conceded that recommendations by engineers employed by the city in 1951 that the city 'remodel the old plant and perhaps add to it' were not carried out in their entirety because the city 'fell out with the engineers, lost faith in them, and dropped it, and couldn't do any more until 1956, until their contract expired,' and readily agreed with plaintiffs' counsel that, during the period for which damages were sought, the city had been operating an inadequate plant--'the town had outgrown it'--with the volume of sewage gathered in the municipal sewer system being two and one-half times the capacity of the disposal plant.

Only one person, Bill Basham(a witness for defendant), testified concerning the condition of Chat Creek in the neighborhood of plaintiffs' farm prior to 1935.Basham, a farmer residing one-quarter mile north of the disposal plant (and thus upstream from plaintiffs' land) had lived on the creek since 1912.He said that 'we had plenty' of raw sewage in Chat Creek 'back in the twenties' and 'in * * dry years * * * we had an awful odor,' but that, when the disposal plant was constructed in 1934, 'it took care of it for a long time, we didn't even notice it * * * up into the forties then, '46 maybe,' when 'it got bad, something went wrong with the sewer, and we got onto them about it and they fixed it, and it was all right for quite a while.'When asked about odors (inferentially foul) in 'Mr. Hillhouse's area,' Basham stated that he first smelled such odors 'back there in the twenties' while plowing 'just across the road east' of the farm now owned by plaintiffs; and, in response to the question, 'considering the area from your land down to Mr. Hillhouse' land, and considering that period, first of all, up until the time of the building of the disposal plant, and considering the same situation after the building of the disposal plant up to the present date, can you compare those two periods,' Basham answered without objection, 'well, up to the time they built the plant it was worse than it has been since they built the plant, only a few times there during the drouth, that is the way I would put that.'

The only expert witness was Clifford L. Summers(called by plaintiffs), assistant chief of water pollution control with the Missouri Division of Health since 1950, who painted a graphic word picture of the inadequacy of the Aurora disposal plant and the gross pollution of Chat Creek as far downstream as plaintiffs' farm at the time of his last plant inspection in May 1955.Summers branded 'the Imhoff tank trickling filter type' of disposal plant in operation at Aurora as 'one of the older types of treatment plants,' limited in the type of waste it can treat.'The modern type plants that we use now' have been available 'probably thirty years'--since 1925 or 1930.So, when plaintiffs' counsel propounded the leading question, 'then it has not been necessary for any city, such as Aurora, to pollute a stream since 1925 or '30,' this witness agreed 'that's right.'

From the outset of the instant case, the adversary parties have urged and followed divergent theories, with the controversy swirling about two basic issues, i. e., (1) whether the nuisance created by defendant's sewer system and disposal plant was, as to plaintiffs' farm, a permanent or a temporary nuisance, and (2) whether the cause of action for damage to said farm accrued crued 'in the twenties' or about 1946.Plaintiffs earnestly insist that damage to their farm first became apparent about 1946, that the nuisance then created by defendant clearly was a temporary or abatable one, and that they have a right to pursue this action for damages accruing within five years prior to institution of suit.Defendant just as earnestly contends that, regardless of whether the damage to said farm first manifested itself 'in the twenties'(as defendant asserts) or about 1946(as plaintiffs say), it resulted from a permanent nuisance created in 1923 when defendant constructed a permanent sewer saytem with outfall into Chat Creek, and that, since the cause of action for damage to plaintiffs' farm accrued not later than 1946(or 1947), recovery in this suit is barred by the five-year statute of limitations.Section 516.120, RSMo 1949, V.A.M.S.

For many yeras, the appellat courts of this state held consistently that a municipal sewer system constituted a permanent nuisance, and that all damages sustained by any riparian landowner had to be recovered in a single action under the law of eminent domain.Stewart v. City of Springfield, 350 Mo. 234, 249, 165 S.W.2d 626, 631(15), and cases there collected.However, as we observed, per Ruark, J., in Newman v. City of El Dorado Springs, Mo.App., 292 S.W.2d 314, 318, ¹'the reason for such rule was that when it came into being a municipal sewer was necessarily, because of the inherent nature of the operation, a permanent nuisance'; and, with appropriate recognition of scientific advances in the field of sewage treatment, we concluded in the Newman case[292 S.W.2d loc. cit. 318], and are still of the same opinion, that 'it should not be said (as an all-inclusive statement) that the inevitable, necessary and inherent result is a nuisance to the land below, except the lands in the vicinity thereof and such as will, in reasonable contemplation, be permanently affected by it.'But, we here hasten to point out that, in the Newman case, we neither held nor intended to suggest (as counsel for instant plaintiffs apparently believe) that all nuisances created by all municipal sewer systems constructed since 1911, when the first Imhoff tank is said to have been installed [seeRiggs v. City of Springfield, 344 Mo. 420, 436, 126 S.W.2d 1144, 1152, 122 A.L.R....