Radcliff Homes, Inc. v. Jackson, s. 87-CA-2183-M

• Decision Date: 24 February 1989
• Docket Number: Nos. 87-CA-2183-M,87-CA-2370-MR,s. 87-CA-2183-M
• Citation: Radcliff Homes, Inc. v. Jackson, 766 S.W.2d 63 (Ky. Ct. App. 1989)
• Parties: RADCLIFF HOMES, INC., Appellant, v. Eddie JACKSON and Carol Jackson, John R. Stellwagen and Marilyn Edith Stellwagen, Charles Parks and Pamela Parks, John Drexler and Drexler Mechanical Enterprises, Inc., and INA Underwriters Insurance Company, Appellees. Eddie JACKSON and Carol Jackson, Appellants, v. John R. STELLWAGEN and Marilyn Edith Stellwagen, Charles Parks and Pamela Parks, John Drexler, Drexler Mechanical Enterprises, Inc., INA Underwriters Insurance Company, and Radcliff Homes, Inc., Appellees.
• Court: Kentucky Court of Appeals

Page 63

766 S.W.2d 63

RADCLIFF HOMES, INC., Appellant, v. Eddie JACKSON and Carol Jackson, John R. Stellwagen and Marilyn Edith Stellwagen, Charles Parks and Pamela Parks, John Drexler and Drexler Mechanical Enterprises, Inc., and INA Underwriters Insurance Company, Appellees.

Eddie JACKSON and Carol Jackson, Appellants, v. John R. STELLWAGEN and Marilyn Edith Stellwagen, Charles

Parks and Pamela Parks, John Drexler, Drexler Mechanical

Enterprises, Inc., INA Underwriters Insurance Company, and

Radcliff Homes, Inc., Appellees.

Nos. 87-CA-2183-MR, 87-CA-2370-MR.

Court of Appeals of Kentucky.

Feb. 24, 1989.

Donald E. Skeeters, Skeeters & Bennett, Radcliff, for Radcliff Homes.

Douglas E. Miller, Miller & Durham, Radcliff, for Stellwagens.

Nicholas L. Pearl, Pearl, Musselwhite & Wheatley, Radcliff, for Drexler & Drexler Mechanical Enterprises.

John J. Scott, Whitlow & Scott, Elizabethtown, for Jacksons.

David VanZant, Huddleston & VanZant, Elizabethtown, for Parkses.

Gary D. Garrison, Ewen, MacKenzie & Peden, Louisville, for INA Underwriters.

Before HOWERTON, C.J., McDONALD, J., and WHITE, Special Judge.

McDONALD, Judge.

This case originated as a nuisance action in the Hardin Circuit Court. The plaintiffs, John and Marilyn Stellwagen, appellees herein, were the owners of a house in Radcliff, Kentucky. Across a cul-de-sac from them lived defendants Eddie and Carol Jackson, who had purchased their home from the original owners, Charles and Pamela Parks. Both the Stellwagens' and the Jacksons' homes were built by defendant Radcliff Homes, Inc. (Radcliff). The septic tank system for the Jackson home was installed by appellee John Drexler for Drexler Mechanical Enterprises, Inc., under a contract with Radcliff.

This septic tank is at the core of the present controversy. It first began malfunctioning in early 1981, while the house was still occupied by the Parkses. Heavy use of indoor plumbing facilities caused raw sewage to back up into the house. A limited warranty issued by Radcliff was still in effect, and the Parkses complained directly to that company. Radcliff in turn consulted John Drexler who opined that the back-up was caused by excess ground water (a "wet spring") flooding the septic system's lateral lines. He also stated that the problem could only be corrected, if at all, by installing a sand filter box and an entire new system of lateral lines in the backyard. (The existing lines are in the front). He estimated that new lateral lines alone would cost between $1200 and $1500. Radcliff's president promptly hired a different plumber who merely re-dug the existing laterals and put new gravel around them. This temporarily abated the problem and the Parkses had no further trouble.

In February of 1982, Eddie and Carol Jackson entered into a contract for deed for the Parks's house and moved into it. There were no problems with the septic tank until May of 1983. At this time raw sewage began to seep to the surface of the Jacksons' yard. After about a month the seepage had become so obnoxiously odiferous that the Stellwagens called the Hardin County Health Department. An environmentalist from the health department, Scottye Wheeling, investigated and told the Jacksons to correct the problem. In response, the Jacksons at first did nothing; later, Eddie Jackson took a shovel and dug a ditch which diverted the flow of raw sewage from his yard to a culvert running onto the Stellwagens' property. From there the seepage flowed into a creek which ran through the Stellwagens' backyard.

The Stellwagens continued to complain to the health department. Three times Scottye Wheeling sent the Jacksons a "Thirty Day Notice to Correct"--on December 27, 1983; June 1, 1984; and August 20, 1984. Finally, on November 7, 1984, the Hardin County Attorney wrote to the Jacksons, threatening criminal action under KRS 212.210 if the sewage problem was not corrected immediately. In response, the Jacksons paid Roto-Rooter $105 to pump out the septic tank. After hiring two more plumbers who unsuccessfully attempted to correct the problem, the Jacksons heeded the advice of the health department to use the tank as a holding system and have it pumped regularly. As of the date of the trial, this course of action had succeeded in at least temporarily solving the problem.

The Stellwagens, in the meantime, had moved in August, 1984, to Walla Walla, Washington, for unrelated reasons. They took their house off the market in December and rented it through a local agent while continuing to pay the mortgage themselves. The house was eventually sold at a judicial sale after the Stellwagens declared bankruptcy.

Such is the factual background of this case. Out of the many claims, cross-claims and third-party claims that resulted, the trial court, which heard the case without a jury, ordered in its judgment: ¹

1. That the Plaintiffs Stellwagen recover from the Defendants Jackson and Radcliff Homes, Inc., jointly and severally, compensatory damages in the amount of $10,036.00, plus interest at the legal rate from the date of this Judgment until paid;

2. That the Plaintiffs Stellwagen recover from the Defendants Jackson punitive damages in the amount of $7,500.00, together with interest at the legal rate from the date of this Judgment until paid;

3. That the Defendants Jackson recover from Radcliff Homes, Inc. the sum of $839.90, together with interest thereon at the legal rate from the date of this Judgment until paid;

* * *

6. That the claim of the Defendant Radcliff Homes, Inc. for indemnity or contribution against the Third Party Defendants Drexler and Drexler Mechanical Enterprises, Inc. is dismissed[.]

Both the Jacksons and Radcliff appeal.

Appellants Jackson contend, first, that they should have received a directed verdict at the close of the plaintiffs' case. ² Most of the appellants' arguments in support of this contention are factual distortions and they fail to persuade us. The trial court in this case acted as fact finder as well as adjudicator; it found that a nuisance, temporary in nature, ³ resulted from the Jacksons' use of their property as the Stellwagens alleged in their complaint. As a reviewing court we may not set aside this finding of fact unless it is clearly erroneous, CR 52.01, which it is not; in fact, it appears to be amply supported by the evidence. Appellants argue that a "trifling annoyance and inconvenience" does not constitute an actionable nuisance, Reynolds v. Community Fuel Co., 309 Ky. 716, 218 S.W.2d 950, 952 (1949), but we would not so characterize the steady flow of the neighbors' excrement into one's yard. Appellants also object to the court's failure to weigh the reasonableness of their use of their property against the gravity of harm done to the plaintiffs. Louisville Refining Co. v. Mudd, Ky., 339 S.W.2d 181 (1960). Although the court did not expressly state that it had weighed the evidence thusly, it quite distinctly found that the Jacksons' use of their property was unreasonable and that this had an injurious effect both on the Stellwagens' use of their property while in residence and upon their ability to sell it. Furthermore, we detect no factual error in the court's refusal to find that the nuisance, if there was one, arose from every house in the neighborhood. Even if it is possible that more than one household's septic tank emitted an obnoxious odor, there was no evidence that anyone but appellant Jackson actually diverted the flow of his own sewage onto the plaintiffs' property.

"It is a general principle of law that every person may make such use as he will of his own property, provided he uses it in such a manner as not to injure others." Commonwealth ex rel. Dep't of Fish and Wildlife Resources v. Mayer, Ky., 357 S.W.2d 879, 881 (1962) (emphasis added); see also Kentland-Elkhorn Coal Co. v. Charles, Ky., 514 S.W.2d 659, 663 (1974), which holds that "an owner may not use his property in such a way as unreasonably to injure another's property". (Emphasis in original.)

Thus, we affirm the trial court's finding on the issue of the Jacksons' liability. We turn now to the question of damages.

Although case law on this subject is confusing and occasionally in conflict, it is as a minimum clear that there can be no nominal damages in a nuisance action, George v. Standard Slag Co., Ky., 431 S.W.2d 711, 716 (1968); the injury "must be real and substantial and in the case of private nuisance must be such as to interfere materially with ordinary physical comfort or the reasonable use of property." Louisville Refining Co. v. Mudd, supra at 184. The most commonly cited measure of damages for a temporary nuisance is as follows:

Where the property is occupied by the owner the measure of damages in a temporary nuisance case is the diminution in the value of the use of the property during the continuance of the nuisance, and if the property is not occupied by the owner it is the reduction in the rental value during that period.

Adams Construction Co. v. Bentley, Ky., 335 S.W.2d 912, 913 (1960). While " 'diminution in the value of the use of property' is a rather elusive concept," it has been recognized that "discomfort caused by this type of injury may be considered as an element of damages." Price v. Dickson, Ky., 317 S.W.2d 156, 157 (1958).

The trial court valued the Stellwagens' diminished use and enjoyment of their property at $400 per month, which figure appellants do not directly contest. In calculating the damages that accrued after the plaintiffs moved, however, the court did not rely upon the reduction in rental value (expert testimony established that the Stellwagens received very nearly the market value), but rather deducted the net rent the plaintiffs received each month from their monthly mortgage payment, a difference of $404 per month for nine months.

Appellants argue that the court erred in not limiting the plaintiffs' damages for their period of non-occupancy to reduction in...