Mclaughlin v. City of Hope

• Decision Date: 31 March 1913
• Citation: 155 S.W. 910,107 Ark. 442
• Parties: MCLAUGHLIN v. CITY OF HOPE
• Court: Arkansas Supreme Court

155 S.W. 910

107 Ark. 442

MCLAUGHLIN v. CITY OF HOPE

Supreme Court of Arkansas

March 31, 1913

Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge reversed.

STATEMENT BY THE COURT.

P. H McLaughlin brought suit for damages against the city of Hope arising from the construction of its sewer system, which discharged the sewage of the city into Hanegan's branch which flowed through certain lands, the property of S. B. Henry, part of which upon the branch had been leased by him for a mill site, and upon which a saw mill had been erected for the purpose of manufacturing certain timber, belonging to said Henry, and purchased by McLaughlin of him, into ties.

The complaint alleges that the mill was located on said stream of water for the purpose of using it in making steam to propel the machinery for manufacturing the timber into finished ties. That after leasing the mill from the owner of the land, he moved his mill and located it on the banks of the branch and used the water therefrom in the operation of the machinery. That after the mill had been located and put in condition for operation and the contract for the manufacture of the ties entered into and some of the timber cut and delivered at the mill and some ties manufactured, that the sewage from the city of Hope was discharged into Hanegan's branch and carried on down through and crossing the lands described in the complaint and so polluted the water therein as made it unfit for generating steam and appellant was compelled to abandon the use of it for that purpose and there was no other water on the premises that could be used for the purpose of operating the mill. It alleged further that the city of Hope, its agents, officers and servants so constructed its sewers as to discharge the sewage from said city of Hope into said branch and to cause noxious odors to spread over and about said mill site and mill premises to such an extent that plaintiff was compelled to abandon the same; that said noxious odors rendered said mill premises uncomfortable, undesirable and unhealthful as a place for people to work; that as a result plaintiff was unable to get hands to help carry on the work, and that plaintiff himself was unable to endure the the noxious odors and was forced to abandon his said mill site. Damages were also claimed for the loss of profits that could have been realized on the manufacture of the timber into ties.

A demurrer was interposed and sustained to this amended complaint and, from the judgment, dismissing it, plaintiff prosecutes this appeal.

Judgment reversed and cause remanded.

Jobe & Montgomery, for appellants.

1. Appellants have a legal right to sue. 24 Cyc. 1056 (111); 4 Wash. 749; 31 P. 28; 74 Ill. 433; 71 Ark. 302; 13 N.E. 686; 73 Am. Dec. 66; 13 Cyc. 151.

2. If they have the right to sue for a legal injury, the city it liable. 84 Am. St. 902; Const. art. 2, § 22; 15 Cyc 662; 98 Ark. 206; 94 F. 561; 77 Am. St. 335; 41 Id. 367; 42 Id. 840.

3. A legal injury was committed by the city in violation of private rights and it is liable for the damages. 14 Am. St. 319; 95 Ark. 297; 93 Id. 46; 51 Am. St. Louis, I. M. & S. Ry. Co. v. Moss, 75 Ark.64; Murrell v. Henry, 70 Ark. 163.

O. A. Graves, for appellee.

1. There is no bill of exceptions in the case. 71 Ark. 82; 70 Id. 364; 81 Id. 332.

2. The complaint states no cause of action. 54 N.E. 1062; 48 L. R. A. 707. No negligence or want of care or skill is alleged.

3. Municipal corporations are not liable for the negligent or tortious acts of their agents and servants. 49 Ark. 139; 73 Id. 447; Ib. 519.

OPINION

KIRBY, J., (after stating the facts).

The allegations of the complaint are not as definite and certain relative to the damages claimed for the injury as should have been made, but where the complaint states a cause of action indefinitely the defect is reached by motion to make more definite and certain and not by demurrer. St. Louis. I. M. & S. Ry. Co. v. Moss, 75 Ark. 64, 86 S.W. 828; Murrell v. Henry, 70 Ark. 161.

When the facts stated in a complaint with every reasonable inference deducible therefrom constitute a cause of action the demurrer should be overruled. Claxton v. Kay, 101 Ark. 350, 142 S.W. 517; Cox v. Smith, 93 Ark. 371, 125 S.W. 437. Is a cause of action stated?

McLaughlin, the allegations of the complaint being true, moved his mill and set it up on the banks of this branch, first having acquired a site by lease from the owner of the land, expecting to use the water of the branch in making steam for the operation of the plant, and there being no other water available and by the discharge of the sewage of the city into the stream polluting its waters and because of the noxious odors arising therefrom, he was compelled to abandon his mill site and move his mill. The owner of the land was also joined as a party to the suit.

It is contended by the city that no negligence, lack of skill or want of care in the construction of its sewer system is alleged and that it could not be held liable for the negligent and tortious acts of its officers in any event, under the authority of Arkadelphia v. Windham, 49 Ark. 139, 4 S.W. 450; Collier v. Fort Smith, 73 Ark. 447, 84 S.W. 480; and Gray v. Batesville, 74 Ark. 519, 86 S.W. 295.

Cities and towns in the State have power to open, construct and keep in order and repair sewers and drains and to enter upon and condemn private property for such purposes. Sections 2906, 2920, Kirby's Digest. If the statute does not expressly confer such power to be exercised without the city's limits, it is granted by implication, being indespensibly necessary to carry into effect the express power granted by the statute to open, construct and keep in order sewers and drains.

Our Constitution provides: "Private property shall not be taken, appropriated or damaged for public use without just compensation therefor." Art. 2, § 22, Const. 1874.

Plaintiff does not seek to recover damages arising from the negligent, unskillful or wrongful construction of the sewer system, but only for discharging the sewage into the stream upon the lands of his lessor and pulluting it to such an extent as to render worthless his leasehold estate as a mill site and make the abandonment of it necessary. The statute does not, as in some States, expressly authorize the discharge of the sewage into natural streams, or drains and creeks, and if it did the question would still remain whether, under the Constitution, the Legislature had any such power without requiring compensation made to the owner of the stream. The owner of the land on a stream has the right to have the water which flows from the land of an upper owner in as pure and wholesome a condition as a reasonable and proper use of the stream by the upper owner will permit. He must also submit to the natural drainage and wash coming from cities and towns.

In 1 Lewis on Eminent Domain, section 60, it is said: "All the authorities agree that small streams, incapable of navigation, are wholly private property; that the title of the riparian owner extends to the middle of the stream."

And in section 61, "It may be laid down as a well settled principle that every proprietor over or past whose land a stream of water flows has a right that it shall continue to flow to and from its premises in the quantity, quality and manner in which it is accustomed to flow by nature, subject to the right of the upper proprietor to make a reasonable use of the stream as it flows past their lands. This right is a part of his property in the land and, in many cases, constitutes its most valuable element. It necessarily follows, therefore, that any violation of this right in the exercise of the power of eminent domain, is a taking of private property, for which compensation must be made."

In section 84, it is said that, "An injury to riparian rights for public use is a taking for which compensation must be made." "These riparian rights * * * are property and are valuable * * * and can not be abridged or capriciously destroyed or impaired. They are rights to which once vested, the owner can only be deprived in accordance with the law of the land and if necessary that they be taken...