Okla. City v. West

• Decision Date: 10 November 1931
• Docket Number: Case Number: 21070
• Citation: 155 Okla. 63,7 P.2d 888,1931 OK 693
• Parties: OKLAHOMA CITY v. WEST.
• Court: Oklahoma Supreme Court

1931 OK 693

7 P.2d 888

155 Okla. 63

OKLAHOMA CITY v. WEST.

Case Number: 21070

Supreme Court of Oklahoma

Decided: November 10, 1931

Syllabus

¶0 1. Damages--Action Against City for Pollution of Stream by Discharge of Unpurified Sewage--Permanency of Nuisance--Case Overruled.

In a suit to recover damages caused by the discharge of unpurified sewage into a watercourse to the damage of a riparian owner, a contention that since a sewer system is a permanent structure, in the absence of an allegation of negligence in the adoption of the plan of construction of the sewer system or in a failure to construct the system in accordance with the plan adopted, the nuisance should be considered permanent, is unsound, for the damages in such case are not caused by the so-called permanent structure, but by the manner of its use. Mangum v. Sun Set Field, 73 Okla. 11, 174 P. 501, to the contrary, is overruled.

2. Evidence--Judicial Notice of Modern Methods for Purifying Sewage.

Judicial notice is taken of the fact that sewage can be easily and successfully purified by the use of modern appliances, so that a nuisance caused by the discharge of unpurified sewage into a watercourse is, as has heretofore been declared by this court, a temporary nuisance within the rule that a nuisance is temporary that can be abated by the expenditure of money or labor.

3. Nuisance--Unnecessary Nuisance Created in Performance of Work Authorized by Law--Recovery of Damages for Common Law Tort.

Where work is required or authorized by the Legislature and a nuisance is not the necessary result of the performance of the work, it cannot be contended that the nuisance is legalized and that the right to recover damages for the nuisance is based upon a constitutional provision that private property shall not be taken or damaged for public use without just compensation, but the damages are recoverable for a common-law tort which has not been legalized, and if the commission of the nuisance is unnecessary, it is unnecessary to allege that there was negligence in the adoption of the plan for the work or in the construction of the work in accordance with the plan adopted, as the burden of showing necessity is upon the defendant, and an allegation that the nuisance can be abated by the expenditure of money or labor indicates that the commission of the nuisance was unnecessary and that its continuation is unnecessary.

4. Same--Waters and Water Courses--Damages Pollution of Stream with Sewage of City not Permanent Nuisance.

It is not within the power of a municipality guilty of the commission of a nuisance by discharging unpurified sewage into a watercourse to the damage of a riparian owner to elect to continue the nuisance and require the nuisance to be held to be permanent. An indication to the contrary in Page v. Oklahoma City, 129 Okla. 28, 263 P. 448, is disapproved.

5. Trial--Refusal of Instruction on Issues not Contained in Case.

In the absence of an instruction permitting recovery for sickness of a plaintiff or a member of his family, it is not error to refuse to instruct the jury that there is testimony that the plaintiff or a member of his family had been sick and that no recovery therefor can be allowed for lack of a showing of causal connection between the acts complained of and the sickness, when there is no evidence of sickness of the plaintiff or of any member of the family, and the only evidence of sickness, that of a witness and his wife, was stricken out on motion of the defendant during the trial with an injunction to the jury that they should not consider that evidence because sickness may be due to many causes and no causal connection had been shown between the sickness and the acts complained of.

6. Evidence--Testimony of Nonexpert Witness as to Nature of His Illness.

While usually what may be the cause of sickness or illness is a matter requiring the testimony of experts, such rule does not forbid a witness from testifying to discomforts or from testifying as to a sensation which is the effect upon him of a contemporaneous condition commonly known to be an effective cause of the sensation complained of, and a witness in his testimony as to discomfort caused by heavy, foul, polluted air impregnated by a noxious stench, may testify that it gave him a headache.

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

Action by W. C. West against the City of Oklahoma City for damages from nuisance Judgment for plaintiff, and defendant appeals. Affirmed.

M. W. McKenzie, Municipal Counselor, and A. L. Hull, Asst. Municipal Counselor, for plaintiff in error.

Rittenhouse, Lee, Webster & Rittenhouse, for defendant in error.

SWINDALL, J.

¶1 The nuisance complained of was the turning of unpurified sewage into the river at Oklahoma City to the damage of the plaintiff as a riparian owner, and the petition contained the usual allegation that the nuisance could be abated by the expenditure of money, and it was alleged that the damage would continue until abatement. The petition contained an admission that a prior action had been settled by a stipulation which allowed a certain sum as damages sustained from the nuisance up to April 15, 1928, judgment for that sum having been rendered pursuant to the stipulation. It was also alleged that the settlement had been made on the promise of the city to abate the nuisance by purification of the sewage and alleged that a purification plant erected by the city failed to purify the sewage and that the nuisance still continued to the plaintiff's damage. The answer was a general denial and a plea of the statute of limitations.

¶2 The plea of the statute of limitations was based upon the theory that the nuisance was permanent, and the contention that the nuisance was permanent was grounded on an alleged failure to charge any negligence in the adoption or execution of the plan for the construction of the sewers or the disposal plant that had been built. In addition it was urged at the trial that, since the nuisance was permanent, the former recovery, although the action was on the theory of a temporary nuisance, was a bar to recovery in the present action. Unless the nuisance should be held to be permanent, neither contention, that of the statute of limitations, nor of the bar of the former action, is sound.

¶3 It appeared from the evidence that the disposal plant required some alterations, and that it was also lacking in capacity, although with some alterations it would function properly to its capacity, and that the changes and an increase in capacity would effect an abatement of the nuisance.

(1, 2) The defendant relies primarily upon the case of Mangum v. Sun Set Field, 73 Okla. 11, 174 P. 501, in which the first syllabus paragraph reads as follows:

"The injury caused to a riparian owner by the operation of a sanitary sewer system of a municipal corporation, emptying its sewage into a watercourse, thus polluting such watercourse so as to constitute a nuisance, there being no negligence charged against such municipal corporation in the construction and operation of said sewer system, is a 'permanent injury.' The damage occasioned by such injury may all be recovered in one action, and successive actions therefor may not be maintained."

¶4 The decision is opposed to a long line of decisions in this state, and since its rendition has often been ignored, but it has not been expressly overruled, so we take this occasion to expressly overrule it so that it may cause no more trouble to the profession or to the public.

¶5 A nuisance of this character, by discharging pollution into a stream, is not caused by a so-called permanent structure, but is caused by the manner in which the structure is used. We have repeatedly held such a nuisance to be temporary under the rule that where a nuisance can be abated by the expenditure of money or labor, it shall be considered temporary. These decision, so far as pollution is concerned, may be based upon a hitherto unannounced application of the doctrine of judicial notice, and that the real rationale of the decisions may in the future be fully apparent, we announce that this court takes judicial notice of the fact that modern science has advanced to the point where sewage is capable of purification, and that it is not only capable of purification, but can be easily and successfully purified by the use of modern appliances. Bennett v. City of Marion (Iowa) 93 N.W. 558 (1903). "Indeed the purification is coming to be recognized as a necessity." Platt Bros. & Co. v. City of Waterbury, 72 Conn. 531, 67 A. 508 (1900). We hold it to be necessary.

¶6 Cases holding a nuisance to be only temporary nuisance when it may be abated by the expenditure of money or labor are: City of Ardmore v. Orr, 35 Okla. 305 129 P. 867; City of Cushing v. High, 73 Okla. 151, 175 P. 229; A., T. & S. F. Ry. Co. v. Eldridge, 41 Okla. 463, 139 P. 254; St. L. & S. F. R. Co. v. Ramsey, 37 Okla. 448, 132 P. 478.

¶7 The rule announced in Mangum v. Sun Set Field, supra, which has the support of decisions in some jurisdictions, is unsound in that it fails to consider the real cause of the nuisance. In many of those cases the courts used the expression "permanent structure," when the cause of the damage was not in the structure in and of itself, but merely in the manner of its use.

¶8 We do not hold that all sorts of pollution are capable of abatement, as it may well be that in many cases the possibility of abatement of a particular cause of injury would be a question of fact for the decision of a jury, as in Sinclair Oil & Gas Co. v. Allen, 143 Okla. 290, 288 P. 981. But so far as pollution from sewage is concerned, as said above, we take judicial notice of the fact that it can be purified, that it is being purified, and that purification is now the almost universal rule in the construction and maintenance of sewer systems.

¶9 Nor do we hold that even in the case of temporary nuisance there may not be an item of...