Oklahoma City v. McAllister
| Decision Date | 15 October 1935 |
| Docket Number | 25599. |
| Citation | 50 P.2d 361,174 Okla. 208,1935 OK 989 |
| Parties | OKLAHOMA CITY v. McALLISTER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The burden of proof in a cause of action for damages for injury to real property rests upon the plaintiff, and he must prove every essential fact to establish his cause of action including the basis upon which a jury may calculate the financial detriment.
2. The owner of a farm who elects to reside thereon and be his own landlord and tenant is entitled to just compensation for annoyance and discomfort occasioned by the maintenance of an abatable nuisance adjacent thereto by another, but the measure of damages to be awarded is the diminution in the rental or usable value of the realty.
3. Neither surmise, conjecture, nor speculation may form a basis of a judgment.
Appeal from Court of Common Pleas, Oklahoma County; L. V. Reid Judge.
Action by F. A. McAllister against the City of Oklahoma City. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Harlan Deupree, Municipal Counselor, and P. E. Gumm, Asst. Municipal Counselor, both of Oklahoma City, for plaintiff in error.
Charles E. McPherren, Neal E. Maurer, and Fred L. Sikes, all of Oklahoma City, for defendant in error.
This is an appeal from a judgment in the sum of $500, in favor of defendant in error, plaintiff below, and against the municipal corporation, defendant below.
F. A McAllister for eight years owned, farmed, and occupied a residence located upon 160 acres of land near Luther, Okl. The waters of Deep Fork creek flow through the farm of plaintiff. The municipal corporation emptied a part of its sewage into Deep Fork creek, and by reason of inadequate facilities and improper treatment, this sewage gave off foul and offensive odors about plaintiff's farm. As a result of this sewage, the waters of said creek became unfit for stock use or domestic purposes, and plaintiff was deprived of the use, benefit, and enjoyment of the said water and stream so located upon his land.
Based upon these allegations, plaintiff, in the first cause of action, sought damages in the sum of $2,500, and by a second cause of action sought abatement of the nuisance. The result was as aforesaid.
Instruction No. 8, given below, is in words and figures as follows "No. 8, you are instructed that if your verdict is for plaintiff you should fix his recovery at such sum as will reasonably compensate him for the injury he has sustained, and in doing so you may take into consideration the inconvenience, annoyance and discomfort of the plaintiff in the use of his premises, if any, and the depreciated usable value of the premises, if any, but in no event will your verdict exceed the sum of $2500.00, and said recovery must be limited to the injury sustained by the plaintiff, if any, between the 25th day of May, 1931, and this date."
The giving of this instruction constituted error.
It is established by the evidence, and we know in the very nature of such things that there is a depreciated rental or usable value to these lands directly attributable to the nuisance caused by the manner of disposal of this sewage, but what is the amount of depreciation? The evidence fails to show. Therefore, assuming that personal inconvenience, annoyance, and discomfort to occupants of realty (injury to the person) may be considered an element of damage distinct and separate from injury to land, it is impossible to know from the verdict or judgment in this case how much was allowed for either element of damage. Moreover, ground for the personal element was not set up in the petition as a separate cause of action.
Despite what was said in this connection in the case of Oklahoma City v. Tytenicz, 171 Okl. 519, 43 P.2d 747, this court was not theretofore committed in such cases to the doctrine that personal inconvenience, annoyance, and discomfort constituted a separate and distinct element of damage from that of injury to the land. See, also, Oklahoma City v. West, 155 Okl. 63, 7 P.2d 888.
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