Jeakins v. City of El Dorado

• Decision Date: 25 January 1936
• Docket Number: 32598.
• Citation: 143 Kan. 206,53 P.2d 798
• Parties: JEAKINS et al. v. CITY OF EL DORADO. [*]
• Court: Kansas Supreme Court

53 P.2d 798

143 Kan. 206

JEAKINS et al. v. CITY OF EL DORADO. ^[*]

No. 32598.

Supreme Court of Kansas

January 25, 1936

Syllabus by the Court.

City held not exempt from liability for sewage nuisance on ground that maintenance and operation of sewers and sewage disposal plant was exercise of governmental function.

"Nuisance" means annoyance, and any use of property by owner, which gives offense to or endangers life or health, violates laws of decency, or obstructs reasonable and comfortable use of another's property, is a "nuisance."

Landowners' petition alleging that city had so operated sewers, sewage disposal plant, and waste therefrom that waters in stream bordering plaintiffs' property were polluted and obnoxious and nauseating stench arose therefrom held to allege a nuisance.

In action against city for damages for sewage nuisance statement of claim, which, although vague in some particulars, clearly showed that plaintiffs claimed damages growing out of alleged unlawful operation of sewer and sewage disposal plant, held sufficient (Rev.St.1923, 12--105).

Cause of action against city by owners of realty adjoining stream for permanent damages for sewage nuisance, held barred by limitation, where sewage had for some years past been deposited in stream, since sewer system and sewage disposal plant was permanent structure and its operation necessarily continuous, and cause of action arose when sewage was first placed in stream.

Owners of realty adjoining stream, suing city for temporary damages for sewage nuisance, held limited to damages sustained within three months prior to filing of required statement of claim (Rev.St.1923, 12--105).

1. Cities of the second class are granted the power to erect and maintain sewers and sewage disposal plants, but they are not warranted in so operating them as to constitute a public nuisance; if so operated, they are liable in damages to the person or persons injured, it being no defense that such erection, maintenance, and operation are in the exercise of a governmental function.

2. Nuisance means annoyance, and any use of property by its owner, which gives offense to or endangers the life or health, violates the laws of decency, or obstructs the reasonable and comfortable use of property of another, may be said to be a nuisance. The allegations of a petition examined, and held to allege a nuisance.

3. A sewer system and sewage disposal plant, whereby sewage is discharged into a flowing stream, is in its nature, design and use a permanent structure, its operation necessarily a constant and continuous use, and a cause of action for permanent damages to real estate adjacent to the stream arose when sewage was first placed in the stream.

4. In an action for temporary damages arising from maintenance of a nuisance created by the operation of sewers and a sewage disposal plant by a city of the second class, the claimant is limited to such damages for such injury as is sustained within three months prior to the filing of the required statement of claim provided in R.S. 12--105.

Appeal from District Court, Butler County, Division No. 2; George J Benson, Judge.

Action by Burford Jeakins and another against the City of El Dorado. From an order overruling a demurrer to the petition, defendant appeals.

F. J. Leasure, of El Dorado, for appellant.

L. J. Bond and R. C. Woodward, both of El Dorado, for appellees.

THIELE Justice.

The city of El Dorado appeals from an order overruling its demurrer to plaintiff's petition, the allegations of which are summarized as follows:

Plaintiffs for many years have owned and resided on certain described real estate. Defendant is a city of the second class owning and operating for more than ten years past a sewage disposal plant on the bank of the Walnut river and the outlet from the plant into the river which flows along the east city limits and then in a westerly direction past plaintiffs' real estate bounding the same on the north and east. That for many years the defendant operated the sewage plant in such manner the sewage was treated and no damage was caused plaintiffs.

"That beginning with the Spring of 1933 a serious drought condition began in Butler County and said drought continued during the summer of 1933 and all of 1934, until about October thereof. That as a result of said drought the water in said Walnut River became low and its volume insufficient to carry away the sewage from said sewage disposal plant. That the proportion of sewage discharged from said sewage disposal plant increased over the volume of water in said river and said defendant carelessly and negligently and improperly operated said sewage disposal plant during said drought period and as a result much raw and untreated sewage was dumped and thrown into said river by said defendant, and the water in said river became very foul, unclean and contaminated and a very obnoxious and nauseating stench and odor came from said river. That some of the time during the summers of 1933 and 1934 said defendant did not operate said sewage disposal plant at all, but dumped the sewage from said sewage disposal plant into said river in its raw state and without treating it."

It is further alleged that plaintiffs' home is only a few hundred feet from the river and that the odor and stench from the river at times became so foul plaintiffs were unable to endure it and were forced to leave their homes for periods of time; that, because of the sewage, insects existed in great numbers, and plaintiffs were kept in actual fear of disease from contamination. Because of the facts alleged, the value of plaintiffs' property was decreased in the sum of $5,000. It is further alleged that plaintiffs are aged, have become accustomed to said real estate as their home, and are unable to establish another home at their time of life; that at all times mentioned defendant and its agents and employees have known the facts and conditions; that plaintiffs have protested and have requested the condition be remedied; that notwithstanding the protest of plaintiffs and others, the city has willfully and knowingly operated said sewage plant in a careless and improper manner, and that, because of the drought conditions, defendant should have used greater care and diligence in the operation of the plant than under ordinary conditions; that during the summers of 1933 and 1934 said plant was in a bad state of repair and known to be so to the defendant, and, if it had been kept in proper repair and operated in a careful and prudent manner, the sewage would have been properly treated, and the water in the stream would not have been contaminated, and plaintiffs would not have been injured; that, in addition to the damage to their real estate, plaintiffs have been in constant fear of contamination and have been unable to live comfortably in their established home, have been compelled to breathe foul and obnoxious odors from the...