Jezowski v. City of Reno, 3844

• Decision Date: 18 July 1955
• Docket Number: No. 3844,3844
• Citation: 286 P.2d 257,71 Nev. 233
• Parties: , 52 A.L.R.2d 1127 Phyllis Helen JEZOWSKI, Appellant, v. CITY OF RENO, Nevada, a Municipal Corporation, Respondent.
• Court: Nevada Supreme Court

Page 257

286 P.2d 257

71 Nev. 233, 52 A.L.R.2d 1127

Phyllis Helen JEZOWSKI, Appellant, v. CITY OF RENO, Nevada, a Municipal Corporation, Respondent.

No. 3844.

Supreme Court of Nevada.

July 18, 1955.

Rehearing Denied Aug. 26, 1955.

Martin J. Scanlan, Reno, Harry Russell Thayer, Carson City, on the brief, for appellant.

Samuel B. Francovich, City Atty., Bruce D. Roberts, Asst. City Atty., Reno, for respondent.

BADT, Justice.

Mrs. Jezowski sued the City of Reno for damages for operating its municipal dump ground as a nuisance, and further sought a judgment abating it. A jury found the dumping ground not to be a nuisance and plaintiff has appealed from the judgment entered thereon and from the court's refusal to vacate it. The sole question presented to us is whether the verdict of no nuisance finds any substantial support in the evidence. In other words, does the record compel a determination that a nuisance existed by reason of the manner in which the city was operating its dump and that the trial court thus committed error in refusing to vacate the judgment.

Mrs. Jezowski, then Mrs. Fields, in 1952 recovered a judgment for $1,000 under a similar cause of action. The same relative position of the dump on the one hand and plaintiff's residence on the other hand then existed. The city maintained its dump in a canyon some distance north of the city limits and had operated it for a great number of years before 1946 when plaintiff acquired her residence property about a mile to the northeast. For many years prior to 1952 the city used the burning method of disposing of waste material. During this period but little control was exercised over the dumping area. The waste material was dumped into a ravine and burned without much effort to confine it to any particular area. Individuals dumping their own refuse would, for the most part, dump it where most convenient to them and such material was not covered. As a matter of fact when the city attempted to exercise control by denying access to the area during various hours, individuals would dump their refuse along the road leading to the dump ground or at the closed gates or anywhere in the neighborhood they saw fit. Fire and smoke continuously poured from the dump ground, and papers and trash were blown about by the winds. Between the time the plaintiff recovered her first judgment and the time of the conditions of which she complains in her second action, various changes occurred. The former city manager, who had been employed as such from 1947 to 1953, had made a study of the dump situation. Disposition by means of an incinerator was considered. This method was discarded for three reasons. The estimated cost would have run to between six hundred thousand dollars and one million dollars. The use of such method would have virtually eliminated private dumping--and private dumping in an accessible dump was considered a prime factor in preserving a clean city. Thirdly, an incinerator would still have created fire, smoke and odor and would not entirely solve the problem. Next a study was made of what is known as the land fill method which was checked by the city's engineering department. It was found that various cities of comparable and greater size pursued this method with good results. The engineering department further checked to see if the dumping area was suitable for a land fill operation. Nature and depth of soil were investigated, and found to be satisfactory for a period estimated at between five and ten years. The establishment of this method was postponed until further funds were available in an increased budget and by increasing the city's charge against the inhabitants of the city for trash removal. In the meantime various other sites were investigated one by one and rejected. Conferences were had with various other city engineers and the land fill method was found to be widely used. Continuous studies were made through the publications of the city managers' association. The method installed was the establishment of a caretaker continuously in charge who told people exactly where to dump. This followed a general cleaning up of the area.

The present city manager described the method now used. The waste materials are dumped in the area reserved at the time for dumping. A bulldozer pushes the material over the embankment or into the lower section that is being filled. This is then compacted by the dozer and a dirt cover is placed over it. A different section in a deep ravine is used for bulky materials such as car bodies, trees, etc. The softer materials, papers, cartons, ashes, etc., are dumped where they can be covered as fast as possible. A bulldozer is kept working at all hours during which the dump ground is open--approximately fifteen hours a day, depending on the number of daylight hours available, including Saturdays and Sundays. It is worked continuously in two shifts. The caretaker also acts as watchman, opening and closing the gates at the beginning and end of the day, and closing the gates in periods of high wind, with signs posted accordingly. Some fires inevitably start, mainly through the dumping of hot ashes. This is constantly controlled by the dirt fill. Additional equipment, consisting of draglines, shovel and equipment and an additional bulldozer have from time to time been rented and used. Eight hundred feet of 4 1/2-foot drift fence with 7-foot posts (to permit of higher construction if necessary) was constructed along the easterly or leeward side of the dump ground for the purpose of collecting any material that would be blown in the direction of plaintiff's property. Roads were blocked off to prevent dumping in unauthorized areas. The city's witnesses testified that the improvements that had been made were such that there was no comparison with the former operation. Appellant contends that all of this is irrelevant, and simply means that despite the fact that the city was trying hard to correct the situation, the record still compelled the conclusion that the dump as operated still constituted a nuisance. By reason of the pleadings, the period of the events recited by plaintiff and her witnesses was necessarily confined to the time between May 15, 1953 and October 1, 1953. She testified that her first case ended in February, 1952, that she waited one year to give the city a chance to clean up the situation, that by May, 1953, the conditions were still as bad if not worse, that she complained to the city manager's office and on May 21st took a number of photographs, that on that day the city manager sent out fifteen or sixteen prisoners who cleaned up all around the place, that on June 8, 1953, the condition was bad again and prisoners were sent out all week picking up papers, that on July 13, 1953, a big fire started on the dump and cinders and half-burned papers were blowing all over the property, and plaintiff got her hoses ready, that at eight o'clock that night the city had a blade working at the dump but could not control the fire, that on July 21 she filed her claim. Events and conditions testified to by her in December, 1953 and January, 1954, were without the period involved in the action and need not be discussed. She testified that the fence promised by the city manager was never built, that they built 'little fences' that did not confine the material. 'I don't believe a fence a hundred feet high would keep it fenced when the wind blows.' She said that the smoke would blow across their property all the time, that there were small fires continuously, that they choked on the smoke, that the smell was horrible, that one could hardly breathe, that...