Sewer Improvement District No. 1 of Wynne v. Fiscus

• Decision Date: 26 March 1917
• Docket Number: 272
• Citation: 193 S.W. 521,128 Ark. 250
• Parties: SEWER IMPROVEMENT DISTRICT NO. 1 OF WYNNE v. FISCUS
• Court: Arkansas Supreme Court

193 S.W. 521

128 Ark. 250

SEWER IMPROVEMENT DISTRICT NO. 1 OF WYNNE v. FISCUS

No. 272

Supreme Court of Arkansas

March 26, 1917

Appeal from Cross Circuit Court, First Division; W. J. Driver Judge; affirmed.

Judgment affirmed.

S. W Ogan, for appellant.

1. The district was not liable. There is no evidence to show damage because the tank was placed near appellee's property. The only injury complained of was due to the sewage that passed and the odor therefrom. A district is not liable for injuries arising from defects in the plans adopted. It was not an injury to real estate. The instructions do not state the law. 125 Wisc. 546; 4 A. and E. Ann. Cases, 1086; 63 Wisc. 518; 4 Allen, 41; 118 U.S. 19; 2 Dillon Mun. Corp. (4 ed.), § 1051; 165 Ill. 371. If the injury is due to the wrongful operation of the tank, or the system in general, the appellant is not liable. 113 Ark. 239.

2. The property owners were not entitled to compensation. 103 Cal 614; 107 Mo. 83; 108 Va. 259; 85 Ga. 138; 186 Ill. 480. In the absence of a physical taking or trespass, appellant is not liable for odors alone. 10 Rul. C. L., § 149.

3. The court erred in instructing the jury. 106 Ark. 111; 57 Id. 387; 61 Mo. 359. A district is not liable for injuries not involving an unconstitutional taking of private property, by defects in its plans. 125 Wis. 546; 4 A. and E. Ann. Cas. 1086; 63 Wisc. 518; 4 Allen 41; 118 U.S. 19; 2 Dill. Mun. Corp. (4 ed.), § 1051; 165 Ill. 371. The odor was due solely to a defect in the plans.

4. The property owners are not entitled to compensation. 103 Cal. 614; 107 Mo. 83; 108 Va. 259; 85 Ga. 138; 186 Ill. 480.

In the absence of an actual physical taking or trespass, appellant is not liable for odors alone. 10 R. C. L., § 149. The injury was not permanent. 106 Ark. 111; 61 Mo. 359; 57 Ark. 387.

Mann & Mann, for appellees.

The instructions given are in line with the decisions of our court. 45 Ark. 429; 107 Id. 442; 155 S.W. 910; 47 L. R. A. (N. S.) 137; Art 2, § 22 Const.

The evidence sustains the allegations of the complaint and the instructions are correct.

OPINION

HUMPHREYS, J.

E. A. Fiscus owned lots 1 and 2 in block 4, and lots 1 and 2 in block 1 in Minnie Mack addition to the city of Wynne, Ark. Thomas Day owned blocks 2 and 3 in the same addition, and Mollie V. Garrett owned lot 12, block 1 in the same addition.

Appellant, under proper authority, constructed a sewer system in the city of Wynne, Arkansas, in accordance with plans and specifications furnished by an engineer, for the purpose of conveying the sewage out of the city. On the east side of the city, the sewage was discharged through a septic tank into a stream. The stream did not flow through or touch appellee's lands. The tank was constructed in the middle of Mulberry street, which ran east and west through the addition in which the property of appellees was located; the property was in the vicinity of the tank but not adjacent thereto. Noxious and offensive odors escaped from the tank and the stream into which the effluent from the tank was deposited. These odors pass onto the lands of appellees and impregnate the atmosphere to such an extent as to greatly impair the lands for residence purposes to which use they were and are adapted.

Appellees brought separate suits in the Cross county circuit court against Sewer Improvement District No. 1 of Wynne and the city of Wynne, seeking to recover damages on account of constructing the sewer system in such manner as to emit noxious odors and pass them over the lands of appellees.

The city of Wynne filed a demurrer which was conceded, and said city passed out of the case.

Appellants filed separate answers denying the material allegations of the complaint and by way of further defense pleaded that the sewage mains and septic tank were constructed according to plans of competent engineers, and if odors escape from the tank and stream it is the fault of defective plans.

The causes were consolidated and tried as one case, resulting in a verdict and judgment in favor of E. A. Fiscus for $ 315.00; Thomas Day for $ 225.00, and Mollie V. Garrett for $ 175.00.

The proper proceedings were had and an appeal embracing the three cases in one has been lodged in this court.

The controlling issue presented by this appeal is whether or not there must be a physical invasion or spoliation of one's lands before he can maintain an action for damages for taking private property for public use without compensation. Our Constitution provides that private property shall not be taken, appropriated or damaged without just compensation to the owner. Appellant strenuously insists that the placing of a septic tank in the near vicinity of one's land from which noxious odors emanate and pass onto the land is not an injury to real estate within the meaning of section 22, art. 2 of the Constitution of Arkansas. In the cases of McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910, and City of Eldorado v. Scruggs, 113 Ark. 239, this court held that the turning of sewage into, and polluting a stream which flowed across the lands of a property owner to his injury, was within this constitutional provision and actionable. The reason assigned was that the lower riparian owner had a right to have the water uncontaminated by sewage, and such right was a real tangible property right which could not be appropriated without just compensation.

It is just as important to the owner of land to have unpolluted air as uncontaminated water. "The right to pure air is property, and to interfere with the right for public use is to take property." Lewis Eminent Domain, vol. 1, 3rd ed., sec. 236.

In the same section, Mr. Lewis uses some vigorous language in emphasizing the property right to air free from "artificial impurities." His language is so apt the writer is constrained to quote the following sentences "The impregnation of the atmosphere with noxious mixtures that pass over my land is an invasion of a natural right, a right incident to the land...