Okla. City v. Tytenicz

• Decision Date: 16 April 1935
• Docket Number: Case Number: 25711
• Citation: 171 Okla. 519,1935 OK 433,43 P.2d 747
• Parties: OKLAHOMA CITY v. TYTENICZ
• Court: Oklahoma Supreme Court

1935 OK 433

43 P.2d 747

171 Okla. 519

OKLAHOMA CITY v. TYTENICZ

Case Number: 25711

Supreme Court of Oklahoma

Decided: April 16, 1935

Syllabus

¶0 1. Municipal Corporations - Nuisance Created or Permitted by Municipality - Liability to Person Injured.

Where a municipal corporation creates or permits a nuisance by nonfeasance or misfeasance, it is guilty of tort, and is liable in damages to any person suffering special injury therefrom, irrespective of the question of negligence; and such liability cannot be avoided on the ground that the municipality was exercising governmental functions.

2. Nuisance - Personal Inconvenience and Annoyance to Occupant of Real Estate as Element of Damages Distinct From Depreciation of Usable or Rental Value of Property.

The personal inconvenience, annoyance, and discomfort to the occupant of real estate is a separate and distinct element of damage from that of the depreciation of the usable or rental value of the real estate occupied.

3. Waters and Water Courses - Nuisance - Loss for Domestic Purposes of Use of Water as Injury to Usable or Rental Value of Realty - Requisite Evidence for Recovery of Damages.

The loss for domestic purposes of the use of water from a stream is an injury to the usable or rental value of the real estate bordering on said stream; and, before the plaintiff may recover for the damage to the usable value of the property, evidence must be offered as to the amount of the depreciation in the usable or rental value by virtue of the nuisance.

4. Trial - Instruction not Applicable to Evidence Erroneous.

An instruction not applicable to the facts proven, although correctly stating an abstract proposition of law, should not be given.

Appeal from District Court, Oklahoma County; Geo. A. Henshaw, Judge.

Action by Charley Tytenicz against Oklahoma City. Judgment for plaintiff, and defendant appeals. Judgment reversed, and cause remanded for a new trial.

Harlan Deupree, Municipal Counselor, and P.E. Gumm, Asst. Municipal Counselor, for plaintiff in error.

Dabney, Lawson, Rakestraw & Benson, for defendant in error.

PER CURIAM.

¶1 This is an action in which the defendant in error, plaintiff below, as a riparian owner, sues the city of Oklahoma City, plaintiff in error, defendant below, for temporary damage to 160 acres of land belonging to him, situated upon the North Canadian river, east of Oklahoma City.

¶2 The parties will be referred to herein as they appeared in the trial court.

¶3 The plaintiff's chief contention was that the defendant carelessly and negligently dumped its sewage and chemicals into the North Canadian river, which were carried by said river by and on the defendant's property, and produced such a foul odor at plaintiff's property that he was damaged thereby; and that the defendant, city of Oklahoma City, was negligent in that it did not build adequate disposal plants to take care of the sewage of the city. By stream line the farm was 33 miles from the point where the sewage was poured into the river. The case was tried to a jury, and a verdict for $450 was returned in favor of the plaintiff.

¶4 The first proposition urged by the defendant on this appeal is that the city is not liable, for the reason that it is not liable for the negligence of its agents in the operation of a governmental function. This contention is without merit, because this court held in Oklahoma City v. West, 155 Okla. 63, 7 P.2d 888, that the city of Oklahoma City was liable for throwing sewage into the North Canadian river which created a nuisance. The liability did not depend upon whether there was negligence upon the part of the city's agents or not, but on the mere fact that sewage was cast into the stream and it created a nuisance. City of Tecumseh v. Deister, 112 Okla. 3, 239 P. 582; Colbert v. City of Ardmore, 31 Okla. 537, 122: P. 508; City of Ardmore v. Colbert, 52 Okla. 235, 152 P. 603; City of Cushing v. Luke, 82 Okla. 189, 199 P. 578. The well-established rule is that a municipality is liable, irrespective of the negligence of its agents or the fact that it was carrying on a governmental function in maintaining a nuisance which is a common-law tort.

¶5 In 43 Corpus Juris, Municipal Corp. _ 1734, the following statement is found:

"Where a municipal corporation creates or permits a nuisance by nonfeasance or misfeasance, it is guilty of tort, and like a private corporation or individual, and to the same extent, is liable for damages in a civil action to any person suffering special injury therefrom, irrespective of the question of negligence; and such liability cannot be avoided on the ground that the municipality was exercising governmental powers. * * *"

¶6 This rule as to negligence is supported by the following cases: Brigeman-Russell Co. v. Duluth, 158 Minn. 509, 197 N.W. 971; Wiltse v. Red Wing, 99 Minn. 255, 109 N.W. 114; City of Paris v. Jenkins, 57 Tex. Civ. App. 383, 122 S.W. 411. And on the governmental function question it is supported by the following cases: District of Columbia v. Totten, 55 App. D.C. 312, 5 F.2d 374, 40 A. L. R. 1461; City of Newcastle v. Harvey, 54 Ind. App. 243, 102 N.E. 878; City of New Albany v. Slider, 21 Ind. App. 392, 52 N.E. 626; Hart v. Union County, 57 N.J. Law, 90, 29 A. 490; Jones v. Sanitary District of Chicago, 252 Ill. 591, 97 N.E. 210; Sadlier v. City of New York, 40 Misc. 78, 81 N.Y. S. 308; Kobbe v. Village of New Brighton, 23 App. Div. 243, 48 N.Y. S. 990; City of Madisonville v. Hardman, 92 S.W. 930, 29 Ky. Law Rep. 253.

¶7 The defendant complains of the following instructions:

"9. You are further instructed that the owner of land adjoining and abutting upon a river has a right to the use of the water in said stream for domestic purposes, and you may take into consideration such damage, if any, as is shown by a preponderance of the evidence that the plaintiff has sustained for the loss of the use of such water for such purpose.

"10. You are instructed that if you find for the plaintiff, his measure of damages is such a sum as will reasonably compensate him for the discomforts and annoyance he has suffered by reason of the offensive odors coming from the waters of said river which may have annoyed the plaintiff in the quiet and peaceful occupation of his home, and for the loss in the use of the waters of said stream, all for a period of two years prior to the institution of this suit on the 23d day of April, 1932, and in determining this question of damage you may not enter into the realm of speculation or conjecture, but base the same solely upon the evidence and award your judgment accordingly, which shall not exceed the sum of $5,000. You cannot consider any element of exemplary damages or speculative damages in arriving at your verdict."

¶8 Instruction No. 7 (not herein set out) and instruction No. 10 permitted the jury to consider the inconvenience, discomfort, and annoyance to which the plaintiff had been subjected by virtue of a nuisance. The...