Sewer Improvement District No. 1 of Sheridan v. Jones
| Decision Date | 18 December 1939 |
| Docket Number | 4-5714 |
| Citation | 134 S.W.2d 551,199 Ark. 534 |
| Parties | SEWER IMPROVEMENT DISTRICT NO. 1 OF SHERIDAN v. JONES, ADMINISTRATRIX |
| Court | Arkansas Supreme Court |
Appeal from Grant Circuit Court; Thomas E. Toler, Judge; reversed.
Judgment reversed and cause remanded.
Jim C. Cole, for appellant.
McDonald & McDonald, for appellee.
A suit brought by Burl Grubbs was revived after his death to recover damages from Sewer Improvement District No. 1 of Sheridan Arkansas, to a 7 1/2-acre tract of land upon which Grubbs resided at the time of his death under color of title, alleged to have been occasioned by the improper maintenance and operation of a septic tank, which was an essential part of the sewage system, and by the construction of two ditches across the Grubbs land through which polluted water ran from the septic tank.
The first insistence is that there was no sufficient showing of title to support the action. But, as we have just said, Grubbs was in the actual possession of the land at the time of his death, claiming ownership under color of title, and this is a prima facie showing of title. Of course, it is only prima facie, but there was no showing that Grubbs' prima facie title was not actual title. It was held in the case of Weaver v. Rush, 62 Ark. 51, 34 S.W. 256, that proof by plaintiff that his ancestor died in possession of land, claiming under color of title, makes a prima facie showing of title sufficient to support an action in ejectment. See, also, Nicklace v. Dickerson, 65 Ark. 422, 46 S.W. 945.
It was alleged and shown that fecal matter flowed from the septic tank into the ditches, and that the effluvium therefrom greatly depreciated the value of the Grubbs land. There was a verdict and judgment in favor of the plaintiff for the sum of $ 500, from which is this appeal.
It is uncertain upon what theory this verdict was returned. There was testimony to the effect that after rains had fallen the ditches overflowed and the fecal matter was scattered over the land, and that this occurred with such frequency that the land had lost its entire market value, which previously had been about $ 70 per acre, and had become worthless. The verdict of the jury was for "temporary damages," although there was no testimony showing to what extent, if at all, the rental value of the land had depreciated.
The verdict is defended upon the ground that the cause of action was not an original one arising out of the construction of the septic tank and the digging of the ditches, but was a recurring injury, upon which separate causes of action might be based as each cause of action arose.
It is undisputed that the septic tank was erected and the ditches dug more than three years before the institution of the suit; but it is also undisputed that the tank was not properly maintained, and that by clearing it out and by other small expenditures it might be made to function as intended, and, if so, there would be no damage resulting from its operation. One defect in the tank that has developed is that it is now uncovered, and as long as it remains so, and until the tank has been cleaned out and restored to its original and intended condition, there will continue to be a flowage of polluted water.
But this recovery of damages is one which we think may not now be sustained, because of the law applicable to sewer districts as announced in a number of cases and especially Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S.W. 888, and Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S.W. 1057.
In the Jones case, supra, it is said that, in the absence of a statute making them liable, an action for tort will not lie against a municipal corporation or local improvement district, or the officers thereof, because such corporations and their officers are merely agents of the state for governmental purposes; but as the Constitution forbids the taking of private property for public use without just compensation, the grant of the power by the legislature to cities and towns to form sewer improvement districts and to obtain an outlet therefor outside the corporate limits of such municipality imposes upon such corporations the correlative duty to make just compensation for property so taken.
In this Jones case, supra, it was further said that
And it was there further said that the measure of damages to a riparian owner from the use of a stream as an outlet for sewage is the difference in value of the land before and after the stream was so used.
Now, a sewer improvement district may acquire an outlet for the sewage, and it may do so although the outlet extends beyond the corporate limits of the municipality within which the sewer improvement district was organized. The statute expressly confers that authority. Section 9977, Pope's Digest. But the express holding in the Jones case, supra, based upon the authority of McLauglin v. City of Hope, supra, which it cites, is that compensation for this outlet and the damages incident thereto should be assessed on the theory of a permanent taking under the right of eminent domain.
In the McLaughlin case, supra, it was held that the turning of sewage into a branch by a city and polluting the water thereof, to the damage of riparian owners below, is a damage done to such property for public use within the meaning of art. 2, § 22, of the Constitution of 1874 for which the city must make compensation. The theory upon which damages were held recoverable was that, as the pollution of the stream was an incident to the exercise of the right of eminent domain, improvement districts and municipalities exercising that right were liable for damages incident to its exercise. There was, however, in that case no intimation that the damages there sued for, which were assessable on the theory of a permanent taking under the right of eminent domain, had not been brought within three years after the exercise of this right of eminent domain, which is the applicable statute of limitations in actions of that character.
In the case of Wood v. Drainage Dist. No. 3 supra, the facts were that an improvement district, in digging drainage ditches for which purpose it was organized, so delayed digging and so negligently constructed a ditch that water was impounded which overflowed and...
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