McMullen v. Jennings

• Decision Date: 09 March 1935
• Docket Number: 32065.
• Citation: 141 Kan. 420,41 P.2d 753
• Parties: McMULLEN v. JENNINGS.
• Court: Kansas Supreme Court

41 P.2d 753

141 Kan. 420

McMULLEN v. JENNINGS.

No. 32065.

Supreme Court of Kansas

March 9, 1935

Syllabus by the Court.

Erection and operation of grain elevator in district where like businesses are conducted does not constitute a "nuisance per se."

Grain elevator may become nuisance if in its operation the air is unreasonably polluted with dust of foul odor or other offensive substances harmful to owners or occupiers of adjacent land.

Whether a grain elevator is operated so as to constitute a nuisance depends on whether its operation would disturb the ordinary comfort of persons of normal tastes and sensibilities.

Noise and vibration caused by switching of cars to grain elevator in district where like businesses are conducted held not a "nuisance."

Cause of action for damages due to continuing nuisance arises when the first injury is inflicted.

Landowner's cause of action for damages caused by continued operation of grain elevator arose when elevator was operated so as to constitute a nuisance, notwithstanding subsequent additions to original plant.

Where operation of grain elevator so as to constitute a nuisance began more than two years before commencement of landowner's action for damages, such action was barred though additions to original plant were subsequently added (Rev. St. 1923, 60--306, subd. 3).

1. The erection and operation of a grain elevator, located in a district where like businesses are carried on, is a lawful use, and does not constitute a nuisance per se.

2. In the operation of such an elevator, it is a nuisance to unreasonably pollute the air with dust having a foul odor or with other offensive substances, to the annoyance, damage, or harm of the owners or occupiers of adjacent lands in the use and enjoyment of the properties, and in determining whether it is unreasonable, the annoyance is measured by what would unreasonably disturb the ordinary and usual comforts of persons of normal tastes and sensibilities.

3. Permitting large quantities of dust having noisome qualities to escape and settle upon adjacent properties may constitute a nuisance.

4. Noise and vibration caused by switching cars to be loaded on a railroad track to such an industrial plant does not constitute a nuisance.

5. Where such a nuisance as mentioned continues, the cause of action for damages arises when the first injury is inflicted and in determining the question considerable weight should be given not only to the allegations of the petition, but also to the evidence offered in support.

6. Where plaintiff's own evidence shows that the nuisance started with the first operation of the elevator and has since continued, varying only in degree as the operations covered the original plant with additions subsequently made thereto, the cause of action accrued as soon as it was determinable that there was nuisance as defined above, and not from the time the last additions were made to the plant.

7. Under the evidence detailed in the opinion, it is held, the plaintiff's cause of action arose over two years before commencement of the action and that it is barred by the statute of limitations.

Appeal from District Court, Reno County; Joseph G. Somers, Judge.

Action by B. A. McMullen against C. D. Jennings. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with instructions.

A. C Malloy, Roy C. Davis, Warren H. White, and Frank S. Hodge all of Hutchinson, for appellant.

J. N. Tincher and Clyde Raleigh, both of Hutchinson, for appellee.

THIELE Justice.

This was an action to recover damages arising from the maintenance of a nuisance.

Although the facts of this case warranted the furnishing of a map or plan sufficient to aid the court in visualizing the scene and the relation of events to locality, under subdivision (e) of rule 6 of this court, none has been supplied, but from the abstracts we learn the following undisputed facts: In the eastern part of the city of Hutchinson is a block of ground fronting on Second street. Facing north on this street is a row of nineteen houses, and plaintiff is the owner of the next to the last one at the east end. To the east of this block the main line of the Chicago, Rock Island & Pacific Railway Company runs in a north and south direction. Plaintiff purchased his lot and built his house about twenty years ago. He then sold it and, after being away three or four years, repurchased it in 1924. In 1928, defendant purchased land south of the row of houses and erected an elevator having sixteen upright cylindrical concrete storage tubes or bins arranged in a double row; the tubes being about 100 feet high. On the top of these tubes was erected a frame gallery about 9 feet high and 14 feet wide, and at the west end was built a headhouse to contain machinery for elevating grain and for distributing it to the various tubes. In the latter part of 1929 and the early part of 1930, an additional twelve tubes were constructed to the east, and later in 1930 twelve more tubes were constructed to the west. The galleries were extended to cover new tubes. The original headhouse was of temporary construction and was replaced in June, 1930, by a permanent one in the same location. Switches from the railroad have been built on both the north and south sides of the rows of tubes, one of the switches on the north side running within a few feet of the rear of plaintiff's premises. Plaintiff's lot is improved with a one-story five-room house, a double garage, and has grass and shrubbery growing thereon. Plaintiff's house is about 500 feet from the headhouse on the elevator.

Plaintiff's petition was filed in November, 1932, and alleged his ownership of the real property and the construction by the defendant and the laying of the railroad tracks; that defendant has and now unloads large numbers of cars of grain and cleans and stores it in the elevator and loads it into cars, and said acts have created a most offensive, obnoxious kind of dust, which, with smoke from the trains, has tainted and corrupted the air in and about plaintiff's premises so as to render the dwelling house and premises unhealthy and unfit for occupation. It is further alleged the trains and large engines used in handling the grain have caused such noise and vibration as to render the premises valueless as a home, in the treatment of grain, obnoxious smelling chemicals have been used to plaintiff's injury, and in the operation of the elevator dust has been permitted to escape; that it is obnoxious, sickening, and offensive, and filters into plaintiff's home and causes damage to the personal effects and furniture therein; and that all such acts have reduced the value of his home in the amount of $2,500, for which he prayed.

Defendant's answer admitted plaintiff's residence and defendant's erection of the elevator, denied the various claims of nuisance or that he had damaged plaintiff, and alleged that his elevator was located on a switch of the above railroad in the industrial district of Hutchinson where it was permitted by ordinance to operate; that the first part of the elevator was erected in 1928 and commenced operation about January 1, 1929, and at all times since had been operated in a careful and orderly manner with particular attention to the rights of adjacent owners and without unnecessary annoyance or discomfort to them; that the main line of the railroad was a short distance to the east and had been there for years. The statute of limitations, providing a limitation of two years for bringing actions for damages to real or personal property, was pleaded.

Plaintiff testifying in his own behalf, stated the elevator was in operation in 1929 and before; that after the headhouse was built, four switch tracks were built, south of him (between his property and the elevator); switch engines would run in with bells ringing and smoke rolling out of them, cars would stand there, and hoboes would sleep in them, and that was where the depreciation started; that one track came within seven feet of the corner of his lot; that since the building of the bins or tubes there is suction; that he has continuously had trouble with dust; it gets in the attic and through the shingles, rots the lumber, causes a terrible smell when it gets wet; that he complained to defendant right at the start, and when defendant started to build the second section plaintiff talked with defendant, who said when they got it completed there wouldn't be any dust, but there was just as much dust afterwards as before. He further stated that in the winter the headhouse cuts off the sunshine from his place after 2:30 in the afternoon. Other witnesses for plaintiff testified there had been dust there ever since the elevator was in operation; that dirt had been scooped out of the elevator from the top to the ground; that the dust would settle on plaintiff's property; that it had an odor or stench similar to a pigpen. One witness stated he believed there was more dust after the new headhouse was completed than before because the whole construction was larger; that he had seen better precautions to prevent escape of dust, and did not see any dust collector when he was in the elevator. Another witness stated he had lived near since 1928 and that the dust came out wherever there was an opening, and that when the first headhouse was there, a greater part of the time you could hardly see it for the dust, and that he and others complained to defendant both before and after the new headhouse was built. Other witnesses testified that the erection of the new headhouse didn't get rid of the escaping dust; one said the amount of dust increased as more bins were added; another that it stayed about the same. There was testimony also as to the noisome...