Owen v. City of Springfield
| Citation | 741 S.W.2d 16 |
| Decision Date | 17 November 1987 |
| Docket Number | No. 69054,69054 |
| Parties | John Comer OWEN and Bessie B. Owen, Plaintiffs (Respondents and Cross- Appellants), v. CITY OF SPRINGFIELD, Missouri, a municipal corporation, Defendant (Appellant and Cross-Respondent), and Frank Coluccio Construction Company, a Washington corporation, Defendant (Respondent). |
| Court | United States State Supreme Court of Missouri |
Robert Handley, Asst. City Atty., Howard C. Wright, Jr., City Atty., Springfield, Bruce Ring, Jefferson City, for defendant (appellant and cross-respondent).
John G. Newberry, Springfield, for plaintiffs (respondents and cross-appellants).
John Comer Owen and Bessie Owen had a verdict for $40,875 damages against the City of Springfield on a claim that the City's sewage lift station constructed and operated near their home constituted a permanent nuisance. Mr. and Mrs. Owen were denied a verdict on their claim for damages for temporary nuisance against the City and Frank Coluccio Construction Company. Judgment was rendered accordingly. Defendant City appealed from that part of the judgment which awarded plaintiffs $40,875 in damages; plaintiffs appealed that part of the judgment which denied their claim for damages for temporary nuisance. The Court of Appeals, Southern District, affirmed the judgment. This Court transferred the case to review whether Mr. and Mrs. Owen were foreclosed in this proceeding by recovery in a prior condemnation proceeding affecting the same land. The judgment on the award of $40,875 to plaintiffs is reversed, and is otherwise affirmed.
On December 30, 1977, the City of Springfield filed a Petition In Condemnation in furtherance of certain sewage projects to be constructed in accordance with a plan of the Public Works Department filed with the petition.
The City sought to take approximately 1 1/2 acres from the 109 acre farm of defendants John Comer and Bessie E. Owen to construct the James River Lift Station. The lift facility was designed to receive and pump approximately 6,000,000 gallons of raw sewage per day, utilizing two 400-horsepower, 4,200 gallons-per-minute pumps, and to vent the sewer fumes and gases to the atmosphere. It was to be located approximately 100 yards from the Owen residence.
The City's petition prayed that commissioners be appointed "to ascertain and assess the damages ... the defendants as owners of the tracts of land ..., may sustain by reason of taking, condemnation and appropriation of such tracts of land and the just compensation to which defendants may be entitled in consequence of the taking, condemnation and appropriation of said tracts of land."
Mr. Owen valued the 1 1/2 acre tract taken at $3,000.00. The commissioners awarded Mr. and Mrs. Owen a total of $22,651.00 for the taking and its consequential damages. The commissioners' report was filed April 28, 1978.
On May 10, 1978, Mr. and Mrs. Owen filed their exception to the commissioners' award thus preserving their right to jury trial on the damages sustained as a result of the City's condemnation and use of their property.
The lift station was constructed and placed in operation in January 1981; Mr. and Mrs. Owen immediately experienced sewage odors and engine noise emanating from the lift facility.
Notwithstanding existence and pendency of the right to jury trial on their exception to the damages awarded resulting from the condemnation and construction of the sewage facility, Mr. and Mrs. Owen had, on September 10, 1980, filed a petition in inverse condemnation which, as subsequently amended, served as plaintiffs' pleading at the trial which gave rise to this Court's consideration of the issues between Mr. and Mrs. Owen and the City of Springfield. Plaintiffs alleged in Count VIII of their petition that the lift station "will create additional noise and vibration and noxious odors and sewage fumes." Although plaintiffs style their claim and action for "permanent nuisance" it is in the nature of and treated here as a claim for inverse condemnation. Where the nuisance is caused by a municipality in the exercise of a governmental function and is non-tortious, the same is not subject to abatement and the municipality is considered to have appropriated the permanent right, which is in the nature of an easement, to invade landowners' property. Barr v. KAMO Elec. Coop., 648 S.W.2d 616, 618-19 (Mo.App.1983); Stewart v. City of Marshfield, 431 S.W.2d 819, 822-23 (Mo.App.1968); Lewis v. City of Potosi, 317 S.W.2d 623, 629 (Mo.App.1958). The landowner may collect all his damages at once, the measure thereof being the diminution in value of his property by reason of the appropriation. Lewis, 317 S.W.2d at 629; King v. City of Rolla, 234 Mo.App. 16, 24, 130 S.W.2d 697, 701-02 (1939).
On June 10, 1982, Mr. and Mrs. Owen dismissed their exception to the commissioners' award. Because the City had filed no exception, the Owens' dismissal terminated the condemnation suit and fixed the Owen's damages at $22,651.00, for and as a result of the taking of their property for the purposes expressed.
The City's answer to the inverse condemnation suit instituted by Mr. and Mrs. Owen set up the original condemnation proceeding and damage award as a bar of res adjudicata to the issues they sought to have addressed under their petition for inverse condemnation.
There is no disagreement between Mr. and Mrs. Owen and the City that plaintiffs' suit sought damages for permanent noise and odor "unavoidably caused in the operation of the lift station." Plaintiffs' theory was so submitted in their verdict-directing Instruction No. 43. The question then is whether Mr. and Mrs. Owen had the opportunity to tender such claim in the prior condemnation suit before their dismissal of exception brought it to final judgment. If so, they were precluded from the verdict in question by the final judgment in the prior suit.
In Powell, et al., v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408 (1934), this Court recognized the "familiar rule" that a judgment is conclusive not only as to questions which were raised, but as to every question which could have been raised. The Court applied the rule to affirm the dismissal of a representative suit filed subsequent to a merits resolution of a prior representative suit. In Winthrop Sales Corporation v. Shelton, et al., 389 S.W.2d 70 (Mo.App.1965), the court held that the failure to tender an issue which is available prior to rendition of the judgment precludes its being raised thereafter in a proceeding between the same parties involving the same thing. In Smith v. City of Sedalia, 244 Mo. 107, 149 S.W. 597 (1912), this Court held that an action for injunction to abate an alleged permanent nuisance was barred by a pending suit for damages where both suits sought relief on account of the City's discharge of sewage into a watercourse running through Smith's land.
Damages incidental or consequent to a condemnor's use of land for the purposes acquired are subject to consideration in the condemnation case and are subject to assessment by jury upon exceptions duly filed. See Citizens Electric Corp. v. Amberger, et al., 591 S.W.2d 736 (Mo.App.1979); KAMO Electric Cooperative, Inc. v. Baker, 365 Mo. 814, 287 S.W.2d 858 (1956); Jones v. St. Louis Iron Mountain and Southern Ry. Co., 84 Mo. 151 (1884); McCormick v. Kansas City, St. Joseph and Council Bluffs R.R. Co., 57 Mo. 433 (1874); and Clark's Administratrix v. Hannibal & St. Joseph Ry. Co., 36 Mo. 202 (1865).
In the original condemnation action the City gave notice to the Owens through its petition and construction plan that the sewage facility on their land would utilize heavy duty pumps to handle 6,000,000 gallons of raw sewage per day, venting its fumes and gases to the atmosphere. This knowledge was in addition to general knowledge that raw sewage has an offensive odor and that heavy duty pumps produce noise. These items were submitted as the "unavoidable damages" in the second cause of action; and it is not sufficient to argue that the second cause of action was for something different, "unanticipated damages." The Owens were advised by the plan that they could expect and anticipate odor and noise; and they did in fact experience odors and noise at a time when their condemnation exception was still pending. Both items of damage were cognizable in the original condemnation action and the commissioners did award the Owens $22,651.00 for the value of the land taken and the consequential damages occasioned by the taking.
In these circumstances, plaintiffs had their day in court in the original condemnation action and are barred from a second day in court on the same issues.
With respect to plaintiffs' appeal from denial of their claim for temporary nuisance damages, this Court adopts without further attribution the following substance of the opinion of the Court of Appeals.
This claim was based upon alleged tortious trespasses by Coluccio in the construction of a sewer line upon easements across plaintiffs' land. The work was done by Coluccio under contract with the City.
Appellants charge error in that the court entered judgment in favor of both Coluccio and the City, although the jury's verdicts do not name the City but only Coluccio. The verdict is on a typewritten form with blanks to be filled in by the jury. The form says:
the undersigned jurors, find in favor of:
(Plaintiffs John Comer (Defendants Frank
Owen and Bessie E. Coluccio Construction
Owen) Company and City of
Springfield, Missouri)
In the verdict returned by the jury, the space above "(Plaintiffs John Comer Owen and Bessie E. Owen)" is left blank. There is written into the space above "(Defendants Frank Coluccio Construction Company and City of Springfield, Missouri)" only...
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