Osborn v. City of Akron
| Decision Date | 21 December 1960 |
| Docket Number | No. 36448,36448 |
| Citation | 171 N.E.2d 492,171 Ohio St. 361 |
| Parties | , 14 O.O.2d 112 OSBORN et al., Appellees, v. CITY OF AKRON, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
A municipal corporation is not liable to owners of adjacent lands for an alleged nuisance arising from the operation by such municipality of a sanitary land fill for the disposal of garbage and refuse.
Plaintiffs, appellees herein, brought this action against the city of Akron for damages arising as a result of an alleged unisance created by the defendant in its operation of a sanitary land fill for the disposition of garbage and refuse on premises adjacent to those of the plaintiffs.
The cause was tried to a jury, which returned a special verdict in favor of the plaintiffs for s2,500 for permanent damages to their real property and for s5,000 for annoyances and inconveniences suffered by them in the occupancy of their house.
On motion for judgment notwithstanding the verdict, the trial court set aside the verdict as to the s2,500 for permancent damages to the realty but overruled a motion for a new trial and judgment notwithstanding the verdict as to the § 5,000 and entered judgment for s5,000 against the defendant.
That judgment was affirmed by the Court of Appeals, and the cause is before this court pursuant to the allowance of a motion to certify the record.
Harry N. Van Berg, Director of Law, Rufus L. Thompson and John H. Zerbe, Akron, for appellant.
Weick, Genovese & Schreiner, Akron, for appellees.
The basic question raised by this appeal is whether a municipal corporation can be held liable for an alleged nuisance created by the municipal corporation in the maintenance of a sanitary land fill used for the disposition of garbage and rubbish.
It is no longer open to question in Ohio that a municipal corporation acts in a governmental capacity in the collection of garbage. This court in Broughton v. City of Cleveland, 167 Ohio St. 29, 146 N.E.2d 301, held in the syllabus:
'A municipal corporation, when engaged in the health-preserving service of collecting garbage for its inhabitants, is in the exercise of the police power and is performing a governmental funcition, and one who is injured by the negligence of a municipal employee while he is in the process of loading a stationary garbage truck on private property may not successfully maintain an action for damages agaist the municipality.'
Clearly, therfore, since the collection of garbage is a governmental funcition, the necessary adjunct thereto, the disposition of such garbage, is also a governmental function.
Plaintiffs urge that the governmental nature of this operation is lost, and that it has become a proprietary operation because the defendant for a fee allows other municipalities and some private individuals to use such land fill.
However, the primary use of this land fill is for the disposition of the garbage and refuse of the inhabitants of the defendant, and the incidental use of such fill by other municipalities and private individuals for a fee does not change the governmental nature of this operation to one of a proprietary nature.
Plaintiffs urge further that, irrespective of whether the disposal of garbage is a governmental or proprietary function, if the municipality creates a nuisance it is liable, or, in other words, that the doctrine of sovereign immunity does not apply to the creation of a nuisance by a municipality.
Irrespective of what the rule is in other jurisdictions, that is not the rule in Ohio. The liability of a municipality for nuisance in Ohio is defined in Section 723.01, Revised Code, as follows:
The General Assembly by the enactment of Section 723.01, Revised Code, has set forth those instances in which a municipality may become liable for nuisance when performing a governmental...
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