Jones v. Sewer Improvement District No. 3 of Rogers

• Decision Date: 07 June 1915
• Docket Number: 37
• Parties: JONES v. SEWER IMPROVEMENT DISTRICT NO. 3 OF ROGERS
• Court: Arkansas Supreme Court

177 S.W. 888

119 Ark. 166

JONES v. SEWER IMPROVEMENT DISTRICT NO. 3 OF ROGERS

No. 37

Supreme Court of Arkansas

June 7, 1915

Appeal from Benton Chancery Court; T. H. Humphrey, Chancellor reversed.

Decree reversed.

Rice & Dickson, for appellant.

1. A flagrant and dangerous nuisance was proven. 102 Ark. 288; 85 Id. 553-4; 5 Pom. Eq., § 539; 93 Ark. 53; 77 Am. St. Rep. 335; 92 S.W. 931-2; 41 Am. St. 367; 50 Id. 168; Spelling on Injunction (2 ed.), § 676; 15 Cyc. 728; 54 Ark. 144; Kirby's Dig., § 3965; 63 P. 557; 60 S.W. 593; 51 P. 557; 47 S.W. 70. The injunction should have been made permanent, after a reasonable time to repair. Cases, supra. The individual members of the board were liable. 103 Ark. 270. The nuisance was continuing and grew more aggravated. It is immaterial how appellees acquired their property or right-of-way, whether under the law of eminent domain or by purchase. Where one uses his property so unreasonably as to annoy, injure or endanger the comfort health or safety of another, * * * he creates a nuisance. It is no defense that the business is conducted in a careful manner. 102 Ark. 288. The acquiring of the right-of-way by condemnation does not give the right to maintain a nuisance. 93 Ark. 53; 77 Am. St. 53; 92 S.W. 931.

Oral consent is not sufficient to warrant the establishment of the plant, or the discharge of water on a party's land, and it may be recalled. 41 Am. St. 367; 42 Id. 840. A company is liable to damages and to be enjoined from further contamination of a stream already contaminated. 50 Am. St 168. A public agent is liable, and injunction will be against it, if irreparable injury is done. Spelling on Inj. (2 ed.) § 876.

The petition and ordinance does not authorize appellees to empty their refuse on appellant's premises. 103 Ark. 270.

The appellees, pro se.

1. Appellees were not trespassers. Kirby's Digest, §§ 5674, 2921; 103 Ark. 270.

2. The board could lawfully go outside the city limits to procure an outlet for the sewer and enter on appellants' lands and appropriate same as an outlet, but appellants were entitled to just compensation for damages in a suit at law. They have already exercised that right. Kirby's Dig., §§ 2921, 5674; 107 Ark. 442; El Dorado v. Scruggs, 113 Ark. 239.

3. The allegations of nuisances were not proved.

OPINION

HART, J.

R. C. Jones and Martin Wheatley instituted separate actions in the chancery court against the city of Rogers, Sewer Improvement District No. 3 of the city of Rogers, and the individuals comprising the board of commissioners of said improvement district. The causes were consolidated for the purpose of trial.

Among other allegations contained in the complaint are the following:

That the plaintiffs are farmers and reside on their farms near the city of Rogers, in Benton County, Arkansas.

That a natural drain or water course runs through their land in which water flows the year round.

That a sewer improvement district was organized in the city of Rogers and sewers constructed under it.

That plaintiffs' farms were situated within a mile of the city limits, and that they resided thereon.

And that a septic tank was constructed near their farms and that the effluent from it flowed through the natural drain or water course on their land.

The allegations of the complaint state that the septic tank was maintained in such a manner as to constitute a nuisance and the prayer of the plaintiffs is that the nuisance be abated and the defendants restrained from maintaining a septic tank in such a way as to constitute a nuisance.

The cause of action against the city of Rogers was dismissed by plaintiffs and upon a hearing of the cause the chancellor dismissed the complaint for want of equity. The plaintiffs have appealed.

In the absence of a statute making them liable we have held that an action for tort will not lie against a municipal corporation or local improvement district or the officers thereof because such corporation and their officers are merely agents of the State for governmental purposes. For cases in point with reference to municipal corporations and their officers, see the following: Browne v. Bentonville, 94 Ark. 80, 126 S.W. 93; Franks v. Holly Grove, 93 Ark. 250, 124 S.W. 514; Greeg v. Hatcher, 94 Ark. 54, 125 S.W. 1007; Gray v. Batesville, 74 Ark. 519, 86 S.W. 295; Fort Smith v. Dodson, 51 Ark. 447, 11 S.W. 687; Fort Smith v. York, 52 Ark. 84, 12 S.W. 157; Arkadelphia v. Windham, 49 Ark. 139, 4 S.W. 450; Trammell v. Russellville, 34 Ark. 105.

For cases in point as to improvement districts and their officers, see: Board of Improvement of Sewer District No. 2 v. Moreland, 94 Ark. 380, 127 S.W. 469; Wood v. Drainage District No. 2 of Conway County, 110 Ark. 416.

Article 2, section 22, of our Constitution provides that private property shall not be taken, appropriated or damaged for public use without just compensation.

Under our statute, sewer improvement districts may be formed in cities and outlets therefor secured outside the corporate limits of the city. See Kraft v. Smothers, 103 Ark. 269, 146 S.W. 505.

As the Constitution forbids the taking of private property for public use without just compensation, the grant of the Legislature to cities and towns to form sewer improvement districts and to obtain an outlet therefor outside the corporate limits of such municipality imposes upon such corporations the correlative duty to make just compensation for property so taken.

In the exercise of this power we have held that the turning of sewage by a municipal corporation into a stream to the injury of lower riparian owners is within the constitutional provision requiring compensation for damaging property for public use, and that in such cases the damages should be assessed on the theory of a permanent taking under the right of eminent domain. McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910.

The same principle was recognized in the City of El Dorado et al. v. Scruggs, 113 Ark. 239, 168 S.W. 846, where the sewer improvement district commissioners constructed a sewer and appropriated the property of a land owner outside of the limits of the corporation for the purpose of discharging the effluent from the septic tank of the sewer district.

In the case at bar the plaintiffs instituted actions in the circuit court for the taking and damaging of their property by the sewer improvement district and recovered judgments therefor. As we have already seen, the flow from the septic tank emptied into a natural drain or water course which flowed through plaintiffs' land and which contained water throughout the year.

The measure of damages to a riparian owner from the use of a stream as an outlet for sewage is the difference in value of the land before and after the stream was so used. This rule was laid down in the case of McLaughlin v. City of Hope, supra, and City of El Dorado v. Scruggs, supra.

In the circuit court the plaintiffs were allowed to recover damages according to this rule, that is to say, they were entitled to and allowed to recover damages for the land taken and damaged by the construction of the sewer. The damages allowed in such cases are those which result from a proper construction of a sewer. According to the allegations of the complaint, after the sewer was constructed it was maintained in such a way as to constitute a nuisance. The right to construct sewers and drains implies no right to create a nuisance, public or private. It is the duty of the commissioners of the sewer district to construct the sewer so that it will not become a nuisance to any neighborhood or to any particular inhabitant thereof; and it is the duty of the city after the sewer has been turned over to it to avoid the same result by properly maintaining and repairing the sewer after it is constructed. In Joyce on Nuisances, paragraph 284, page 373, is said:

"Where municipal, quasi-municipal, and public bodies generally proceed to exercise, or do exercise their powers in constructing and maintaining great public works of a sanitary nature, such as a sewerage system, and the question of the extent of or limitations upon their powers has come before the courts, these powers and the rights of the public and of private individuals in connection therewith have occasioned much discussion. But notwithstanding certain decisions not in harmony herewith, it may be stated that even though a municipality or other body has power to construct and maintain a system of sewers, and although the work is one of great public benefit and necessity, nevertheless such public body is not justified in exercising its powers in such a manner as to create by a disposal of its sewage a private nuisance without making compensation for the injury inflicted or being responsible in damages therefor or liable to equitable restraint in a proper case, nor can these public bodies exercise their powers in such a manner as to create a public nuisance for the grant presumes a lawful exercise of the power conferred and the authority to create a nuisance will not be inferred." See, also, 2 Dillon, Municipal Corporations (4 ed.), P 1047, (5 ed.), § 1740.

The right conferred upon the sewer commissioners to construct the...