McDaniel v. The City of Cherryvale
| Decision Date | 06 December 1913 |
| Docket Number | 18,427 |
| Parties | JAMES MCDANIEL, Appellee, v. THE CITY OF CHERRYVALE et al., Appellants |
| Court | Kansas Supreme Court |
Decided July, 1913
Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. POLLUTION OF STREAM--Concurrent Wrongdoers--Liability--Joint and Several. When two or more persons, by their concurrent action, pollute a stream to the injury of another through whose land the stream flows, they are jointly and severally liable for the wrongdoing, and the injured party may, at his option, institute an action and recover against one or all of those contributing to his injury.
2. POLLUTION OF STREAM--City Sewer--Refuse from Oil Refinery--Limitation of Actions. A city built a sewer system and discharged sewage into a creek, and about the same time another party built an oil refinery and drained waste water acids, oils and other impurities into the same stream. The impurities deposited in the stream from these sources polluted the water to some extent at the beginning and injuriously affected an owner's land through which the stream flowed. There was little injury to the land when the rains were abundant and the volume of water in the stream was large, but when the rains diminished and there was little water in the stream the injurious effect of the sewage and impurities cast into the stream was greatly increased. More than two years after the sewer system and refinery were built and in operation the landowner brought an action for permanent damages resulting from the pollution of the stream. Held, that as the sewer system and refinery were, in their nature, design and use, permanent structures and their operation was necessarily a constant and continuous injury to the owner's land his cause of action for permanent damages accrued when the sewage and impurities were first deposited in the stream, and not having been brought within two years from that time his action was barred.
Albert L. Wilson, of Kansas City, Mo., and James A. Brady, of Cherryvale, for the appellants.
Sullivan Lomax, of Cherryvale, for the appellee.
This was an action to recover for permanent injuries to the plaintiff's land caused by the pollution of Drum creek which ran through the land. Drum creek, in its natural state, it was alleged, was a stream of good wholesome water, suitable for live stock and also for culinary and domestic purposes, and was used for such purposes by the plaintiff, James McDaniel, until it became polluted. It was alleged that in 1905 the city of Cherryvale constructed a system of sewers through which sewage was discharged into Drum creek, thus polluting the water and rendering plaintiff's home unhealthful and an unfit place in which to live. It was also alleged that in the same year the Uncle Sam Oil Company constructed an oil refinery near the creek and discharged into it waste water, refuse, oils, acids and other impurities, which contributed to pollute the stream. It was further alleged that the defendants concurrently discharged sewage, refuse and filth, and that by the concurrent and chemical action of the impurities the creek was polluted and its usefulness to plaintiff destroyed; that it contaminated his premises and damaged and depreciated the market value of his land to the extent of $ 6000. It was also averred that because of rains the stream was swollen a great part of the time from the construction of the sewer system and the erection of the refinery until 1909, and that so long as the volume of water was large the impurities thrown by the defendants in the stream did not settle or accumulate on his land, but that in 1909 there was a period of dry weather which diminished the flow of the stream, and that the sewage, refuse and other impurities poisoned the stream and made it a cesspool and a nuisance and greatly injured his property. He avers that on December 1, 1909, he presented a claim against the city for the injuries sustained in the sum of $ 6000 but that the city refused to recognize or pay it. He therefore asked for permanent damages measured by the depreciation in the value of his land, which he fixed at $ 6000. In answer to special questions the jury found that the defendant city had been continuously discharging sewage into the creek since May, 1905, and that the Uncle Sam Oil Company had been continuously discharging waste water, refuse, oils, acids and other impurities from the refinery into it since July, 1905, that the plaintiff knew and understood from the beginning that these discharges would, to a certain extent, pollute the stream. The jury also found that the market value of the land prior to the injury was $ 5000 but that after the injury its market value was only $ 4400, and damages were awarded the plaintiff in the sum of $ 600.
It is first contended that there was an improper joinder of causes of action against the defendants and that the plaintiff failed to set forth a joint liability against both defendants. The petition charged both defendants with wrongfully polluting the stream and that it was done by their concurrent action. This averment brings the case within the rule which has been applied in this state, that if two or more persons by their concurrent wrongdoing cause injury to a third they are jointly and severally liable and the injured party may, at his option, institute an action and recover against one or all of those contributing to the injury. ( Kansas City v. Slangstrom, 53 Kan. 431, 36, 36 P. 706 43 P. 706; Arnold v. Milling Co., 86 Kan. 12, 119 P. 373; Luengene v. Power Co., 86 Kan. 866, 122 P. 1032.)
The principal question presented in this appeal is whether or not the cause of action on which a recovery was had was barred by the statute of limitations. The plaintiff, as we have seen did not sue for a temporary injury or for any special damage or loss which he had sustained immediately before the bringing of the action, but he treated the injury as a permanent one and as a sort of an appropriation of an interest in his property and asked for all damages already sustained and which he might sustain in the future. He could have elected to have sued for temporary damages sustained within the statutory period preceding the bringing of the action, and for any subsequent injury or loss an...
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