Kent v. City of Trenton
| Citation | 48 S.W.2d 571 |
| Decision Date | 07 December 1931 |
| Docket Number | 17315 |
| Parties | KENT et ux. v. CITY OF TRENTON. |
| Court | Kansas Court of Appeals |
Rehearing Denied Jan. 11, 1932.
Appeal from Circuit Court, Sullivan County; Paul Van Osdol, Judge.
Action by Hugh R. Kent and wife against the City of Trenton. From a judgment in favor of plaintiffs, defendant appeals.
Reversed.
R. E Kavanaugh, of Trenton, W. A. Lintner, of Milan, Russell N Pickett, of Trenton, Lorenzo Jones, of Unionville, and George E. Woodruff, of Trenton, for appellant.
V. C. Rose, Jr., of Unionville, P. M. Marr and L. E. Atherton, both of Milan, and L. A. Warden, of Trenton, for respondents.
Plaintiffs sued for damages on account of the construction and maintenance of a public sewer by defendant which discharged its contents upon plaintiffs’ land and into an adjacent creek. The verdict was for plaintiffs, judgment followed, and defendant duly appealed. Numerous errors are assigned, and among them appellant claims that the trial court erred in overruling its motion for judgment on the pleadings and in denying defendant’s instruction in the nature of a demurrer to the evidence.
The petition was filed July 10, 1926, and the amended petition upon which the case was tried states that defendant is a municipal corporation of the third class under the laws of the state; that plaintiffs are and were at all times stated the owners in fee simple and in possession of ten acres of land described by metes and bounds; that said property is highly improved with a dwelling house, barn, and other buildings, and that plaintiffs raised poultry and live stock and kept same thereon, and that "prior to the injury herein referred to" plaintiffs resided thereon and enjoyed its full benefits; that Muddy creek flowed in a southerly direction through said land, and formed the east and part of the south boundary thereof, and furnished a plentiful supply of water for said poultry and live stock, and was before the injury pure and wholesome, and added greatly to the value of the land. The petition then proceeds:
"But that the defendants have constructed and now permanently maintain and have since 1921 maintained sewer which empties into said stream along the boundary line of these plaintiffs’ land above described." It is further alleged that the sewer carries the sewage from the greater portion of the most thickly settled and populated part of the city, and "for over five years past there has been a large and continuous discharge from defendant’s sewage, both day and night, upon, through and along the edge of plaintiffs’ premises; " and further charges that there have been great quantities of poisonous and noxious substances, commonly found in sewers, which emit dangerous and deadly fumes and vapors which poison and ruin the water in said stream and permeate the home and premises of the plaintiffs, "which said liquid and substances has at all times and still is so discharged in said Muddy Creek near said dwelling of the plaintiffs."
It is further stated that the sewage runs into, and passes over and through, plaintiffs’ land, and renders useless their supply of water; at all times gives off a dangerous and deadly odor and vapor over all the premises; that plaintiffs have been made sick thereby and were required to abandon their home and to lose the use and profit of their land, which was rendered unsalable and untenantable; and that plaintiffs have lost the reasonable market and rental value thereof.
It is further alleged that plaintiffs lost much live stock of large value on account of the polluted water poisoned by sewage; that they were no longer able to keep live stock on said premises on account of the wrongful acts of defendant; and "plaintiffs further state that this city, through its officers, agents, at all times herein stated and for more than five years last past had known of said discharge from said sewer as aforesaid and the nature and character thereof as above described and that the same was emptying into, running or flowing upon and over the land of the plaintiffs. ***"
The answer admits that defendant is a city of the third class and denies each and every allegation of the amended petition. It is further alleged as a defense that the city is the owner of an easement by grant for the construction and maintenance of the sewer; that the easement was apparent and known to plaintiffs at the time they purchased their land; that the sewer had been in operation more than ten years before plaintiffs bought their land, and the damages, if any, being of the same kind and character from a permanent structure, accrued to the then owner of the land, and any cause of action was barred by the five and ten year statute of limitations; that defendant had title to an easement by adverse possession; that under the grant creating the easement the land was exempt from taxation, and that, by failing to pay taxes with knowledge of said contract terms, plaintiffs are estopped to claim damages; that the damage, if any, was the result of the diversion of the water from Muddy creek, the stream into which the sewer emptied, by a drainage ditch constructed in a duly organized drainage district in Grundy county.
The reply to this answer begins as follows: "Come now the plaintiffs herein and for reply to the new matter contained in defendant’s first amended answer deny each and every allegation therein contained." It then alleges, "by way of affirmative answer in reply to defendant’s first amended answer," that defendant has attempted to assess plaintiffs’ land each year since 1921, but has illegally and inaccurately described the same, and that plaintiffs could not pay the taxes under said assessments and procure a proper and legal release. Then follows this paragraph:
The reply also alleges that the contract or grant referred to in the answer was void as being without consideration and was breached by defendant, that the construction of the sewer was only by permission and upon the representation by defendant that it would be treated with chemicals and would be flushed twice a week, and would not be so operated as to become a nuisance, but defendant failed to perform its promises and has emptied great amounts of sewage upon the premises during the years 1923, 1924, 1925, and 1926.
In support of the assignment that the motion for judgment on the pleadings should have been sustained, appellant contends that it is disclosed by the pleadings that the sewer was a permanent structure; that the cause of action accrued to the owner of the land at the time it was placed thereon; that this cause of action did not pass to the plaintiffs; that the cause of action stated in the petition is barred by the statute of limitations; and that defendant had acquired a prescriptive right to maintain the sewer. In support of the demurrer it is contended that defendant claimed the right to construct the sewer under contracts; that the evidence shows the cause of action alleged in the petition accrued to the prior owner and was barred by the five and ten year statute of limitations; and that the addition of the district sewer No. 28 does not affect the rights of the parties in this action. All these points with numerous others are elaborately presented in brief and argument.
Attention has been given to the presentation upon the motion for judgment on the pleadings, and it is not entirely clear that the trial court erred in overruling said motion. Looking only to the pleadings, we are left in doubt as to the date of the construction of the original sewer, and whether plaintiffs purchased the land before or after the sewer was constructed, and whether or not plaintiffs had notice of the existence of the sewer before said purchase. These and other doubtful questions disappear in the light of admissions and testimony of plaintiffs and in the light of undenied facts shown by the record. As the result attained in a consideration of similar questions arising upon the demurrer will dispose of the case, we deem further allusion to the motion unnecessary, and will direct our attention to the assignment that the demurrer should have been sustained.
The record is exceedingly voluminous. The general purport of it shows that the court permitted the case to be tried on the theory that the defendant in 1923 or thereafter caused or permitted a substantial increase in the flow of sewage to be discharged on plaintiffs’ land and into the stream which caused the water of said stream to be polluted and substantially changed the character of said stream by leaving deposits of sewage therein, and so polluted the atmosphere as to render it dangerous to the occupants of the land and to materially diminish the value thereof and to injure or kill plaintiffs’ live stock. This was exactly the theory upon which the case was submitted to the jury by an instruction given at the instance of the plaintiffs. This is the theory of the reply and not the theory of the cause of action, if any,...
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