Oklahoma City v. Hopcus
| Decision Date | 15 October 1935 |
| Docket Number | 25741. |
| Citation | 50 P.2d 216,174 Okla. 186,1935 OK 988 |
| Parties | OKLAHOMA CITY v. HOPCUS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The burden of proof in a cause for damages for injury to real property rests upon the plaintiff and he must prove every essential fact to establish his cause of action. Included in these facts is the basis upon which the jury may calculate his financial detriment.
2. Proof of a tortious invasion of one's property rights cannot, unless supplemented by evidence disclosing the extent of the loss thereby inflicted upon the injured party, afford a basis for the recovery by him of more than nominal damages.
3. The owner of a farm which he himself occupies as a home is entitled to just compensation for the annoyance and discomfort occasioned from the maintenance by another of a nuisance adjacent thereto; the measure of the amount of the damages to be awarded is the diminution in the rental or usable value of the premises.
4. In every suit for damages to property the court should furnish the jury a rule by which to measure the damages and to define the different elements for which compensation may be awarded.
5. Neither surmise nor conjecture nor speculation may form a basis for a judgment.
Appeal from Court of Common Pleas, Oklahoma County; L. V. Reid Judge.
Action by Stash Hopcus against Oklahoma City. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Harlan T. Deupree, Municipal Counselor, and P. E. Gumm, Asst Municipal Counselor, both of Oklahoma City, for plaintiff in error.
Dabney Lawson, Rakestraw & Benson, of Oklahoma City, for defendant in error.
This is an appeal from a judgment of the court of common pleas of Oklahoma county. In this opinion the parties will be referred to as they appeared in the trial court, the defendant in error as plaintiff, and the plaintiff in error as defendant.
The plaintiff instituted his suit in the district court of Oklahoma county. By proper order the case was transferred to the court of common pleas.
The plaintiff was the owner of 73 acres of land 31 miles by the meandering of the river northeast of Oklahoma City, adjacent to the North Canadian river. He alleged in his petition that the defendant had damaged him by discharging into the river sewage not properly purified. He claimed damage in the amount of $500 because the water in the river had been rendered unfit for watering his stock, alleging that the usable value of the river for watering stock was $250 per year; further that he had been deprived of the use of the river for fishing, swimming, and other recreational purposes, alleging the usable value $250 a year, or a total of $500 for two years. He alleged $1,000 damage for deprivation of the comfort and pleasure of his home on account of the stench arising from the pollution of the river making it almost unbearable for himself and family to occupy his home. He alleged $500 further damage on the theory that the water in the river had become poisonous and filthy rendering it unfit for drinking purposes for his stock, and that to prevent his stock from using said river and to protect them against the use of the river he had been compelled to maintain fences along the river, to his damage in that amount. He prayed for damages in the sum of $2,500.
The answer of the defendant was in effect a general denial and a plea of the statute of limitations. Plaintiff replied by way of general denial to all the new matter in the answer.
At the trial of the case the plaintiff testified in his own behalf and produced six other witnesses. Plaintiff's evidence was to the effect that the defendant was not properly purifying the sewage discharged into the river; that material was deposited along the banks of the river, which material gave out odors extremely offensive; that no fish were in the river during the two-year period of time preceding the filing of the suit. The evidence of the plaintiff and his witnesses was to the effect that when there was no wind blowing, or when the winds were in the direction from the river, it was very undesirable for plaintiff and his family on account of the offensive odors. There was no evidence offered as to the rental or usable value of plaintiff's farm; neither was there any evidence that plaintiff had ever at any time fished in the river, nor was there any evidence giving the cost or expense to the plaintiff for constructing fence along the river to prevent his stock from having access thereto.
In the view we take of the case, it is not necessary to give any review of the evidence offered on the part of the defendant.
The jury returned a verdict in favor of the plaintiff for the sum of $500.
Motion for new trial was overruled and denied. The case is before this court on petition in error with case-made attached.
The defendant has briefed the case on several assignments. It is not necessary to consider all of these.
The plaintiff presented his case under a mistaken view of the law. He did not distinguish between injury and damages. He made no effort to give to the court and jury a basis upon which to calculate any damages which he had suffered. There is a clear distinction between injury and damages. 8 R. C. L. 421, § 1, points out the distinction in the following words:
The trial court, during the progress of the trial, did not observe the distinction between injury and damage, neither did the trial court properly instruct the jury. In stating the issues to the jury, the trial court very much abbreviated plaintiff's petition. He told the jury the plaintiff had alleged that he had sustained damages to his premises described in his petition and to himself in his use and occupancy of the same by reason of the defendant wantonly and in disregard of the rights of the plaintiff dumping and discharging into the river the offensive material, causing the waters of said stream running through and past the land of the plaintiff to be filled with offensive and polluted matter and injurious to the health of persons living and working in the vicinity thereof, especially on the plaintiff's land so that it was impossible for the plaintiff to use and enjoy the same or to use the waters of said stream for domestic purposes or for the use of his stock or for any other purposes and destroying said stream and its waters as a place of recreation for persons living in that vicinity, including the plaintiff, thus creating a nuisance by the obnoxious substances and the stench arising therefrom, and that the value of the plaintiff's enjoyment of his land and premises had been disturbed and interfered with and would continue to be as long as the said nuisance was continued by the defendant.
The court concluded this summary of the allegations of the petition with the following sentence: "And the plaintiff prays for damages because thereof in the sum of $2,500.00."
Over the objection and exception of the defendant, the court gave to the jury instruction No. 12, which is as follows:
The defendant not only excepted to the giving of this instruction, but it also called the attention of the court to the vice of this instruction by requesting the court to give defendant's requested instructions No. 2 and No. 4, which are as follows:
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