Sheriff v. City of Easley

• Decision Date: 09 January 1936
• Docket Number: 14202.
• Parties: SHERIFF v. CITY OF EASLEY.
• Court: South Carolina Supreme Court

183 S.E. 311

178 S.C. 504

SHERIFF v. CITY OF EASLEY.

No. 14202.

Supreme Court of South Carolina

January 9, 1936

Appeal from Common Pleas Circuit Court of Pickens County; C. C Featherstone, Judge.

Action by J. F. Sheriff against the City of Easley. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. D Wyatt, of Pickens, and Blythe & Bonham, of Greenville, for appellant.

B. F Martin, of Greenville, and W. C. Mann and Sam B. Craig, both of Pickens, for respondent.

BAKER Justice.

July 25, 1934, respondent commenced his action against appellant; the complaint of respondent as amended, and omitting the formal portions, reading as follows:

"(2) That plaintiff is, and for more than six years has been, the owner in fee simple of all that certain tract of land, containing fifty-four (54) acres, more or less, according to survey and plat made by S. H. Bowen, surveyor, October 5, 1918, situate on or near Brushy creek, just outside of and near to the city of Easley, being the same land devised to him by his father many years ago.

(3) The said city is, and for some years has been, a populous and growing municipality, containing a variety of business enterprises, cotton mills and industries, and is now, and has been ever since the date aforesaid, collecting in sewer pipes and discharging upon the said property of the plaintiff its raw and untreated sewage, collecting and discharging into the said creek large quantities of sewage, consisting of human fecal matter, kitchen washings from homes, hotels, restaurants, meat and vegetable markets, stores, garages and other establishments, out of such drainage in a putrid and decaying condition. By reason of the said conduct of the defendant, the water became so foul and contaminated, and has so polluted the water of said stream and the air, that the water is, and ever since has been, unfit for use, and the atmosphere is, and ever since has been, foul and contaminated with offensive odors so as to render the property unfit for use for residences, for which it is well adapted, and otherwise saleable, so as to be a source of constant discomfort and annoyance as well as peril to health and disease to those living in and about said stream at the places referred to.

(4) The odors and vapors from the stream have become so foul and offensive as to constitute great and permanent nuisances, with much annoyance, injury and discomfort, and a menace to human life and health. The discharge of sewage into said stream has rendered the water unfit for use by animals in plaintiff's pasture, and the value of the said tract of land for pasturage and farming purposes has been impaired and destroyed. The defendant city has never contracted for or obtained the consent of the plaintiff to deposit sewage in the stream aforesaid, or to otherwise injure the property as herein set out. The plaintiff has demanded that the practice be discontinued, and the nuisance abated, but the city has failed and refused to accede to these demands, and the right of plaintiff to compensation is denied by the city, and no steps have been taken to abate the nuisance.

(5) The defendant city's method of disposing of the sewage is antiquated and dangerous, it is disapproved of and condemned by our laws and courts, and the lives and health of people living upon and near the lands aforesaid, including plaintiff and his family, are constantly threatened and endangered by the failure and neglect of the defendant city to treat and purify the sewage with adequate, modern septic tanks whereby the noxious and poisonous qualities may be eliminated. And in failing to so treat and render harmless and unhurtful this discharge of sewage, as aforesaid, defendant city is making an unreasonable and unlawful use of the said creek, and infringing upon the rights of the plaintiff, who is entitled to have the stream flow through his land pure and as it was wont to flow.

(6) The acts of the defendant city above complained of are grossly negligent, and constitute an unlawful use of the stream, depriving the plaintiff of his right to carry on his ordinary use of said property by way of pasturage and farming, as well as destroying the sale of said property, for residence sites, for which it is well adapted, thereby impairing and destroying the value of the use of and rental value of the said property; the value of the use of the property has been greatly impaired, as well as its selling value, amounting in effect to a taking of the plaintiff's property without compensation being made therefor; the city in effect has made of the stream aforesaid an open sewer through the plaintiff's property, rendering the air foul and putrid, laden with offensive odors, and poisoning the waters which are laden with the filth of the city, all to the damage of the plaintiff in the sum of ten thousand ($10,000.00) dollars.

(7) Upon these facts this plaintiff alleges that he has a right to an abatement of the nuisance, and has applied to the city for such abatement, which the city has declined, denying the right of plaintiff to an injunction or abatement; this action, is therefore, brought both for past damages to the time of its commencement, arising out of the injury; and the plaintiff further alleges that, though the city denies his right to permanent damages, the plaintiff is, nevertheless, entitled to recover past damages, together with an order of abatement and an injunction against the maintenance of the nuisance herein."

The answer of the defendant:

For a first defense, a general denial.

For a second defense: "(1) That the cause of action set forth in the complaint herein accrued more than six years prior to the commencement of this action and the said cause of action is, therefore, barred by the statute of limitations of this state and defendant here pleads said statute as a bar to that portion of the cause of action accruing more than six years prior to the commencement of this action."

For a third defense:

"(1) That for the purpose of protecting the health and promoting the welfare of the citizens of Easley and for the purpose of protecting property owners against injury, it has, under the advice and supervision of competent sanitary engineers, installed tanks where the sewerage of the city is collected in large concrete tanks and mechanically treated before the effluent is discharged in the stream; and said tanks, as defendant is informed and believes, are adequate for the purpose for which they were installed. Said tanks are situated in a field at a considerable distance from plaintiff's home and from any residence, and are located upon the property of defendant; that the odors issuing from said tanks and effluent are not offensive, are negligible, and such odors as exist are confined to a very small area around said tanks; that the effluent therefrom, as defendant is informed and believes, does not contain anything of a harmful nature nor anything detrimental to the health of the cattle which may drink the waters of said stream, and said cattle do drink said water without injury. Defendant denies, therefore, upon information and belief that said sewerage, tanks or effluent cause any injury or damage to plaintiff's property and denies that any nuisance is created on said property or affects plaintiff's property which is caused by any act or omission of this defendant.

(2) That defendant is a small city and has incurred heavy indebtedness for the purpose of protecting the welfare of its citizens; that the outstanding bonds of said city, as of August 25, 1934, amounted to the sum of $200,000.00; that the floating debts of said city as of said date amounts to the sum of $18,500.00; the assessed valuation of the taxable property in said city amounts to $1,140,000.00, and the total tax levy in said city amounts to the sum of $38,400.00 annually; the total tax levy in said city amounts to 32 mills, being made up of 6.75 mills for the annual sinking funds for the retirement of said bonds, 10 mills for the purpose of paying annual interest on said bonds and 15 1/4 mills for the annual general expenses of said town.

(3) Defendant has had made by competent sanitary engineers an estimate of the cost of the construction of a modern disposal system, adequate for the removal of all odors and the complete treatment of the entire effluent, which system would be adequate not only for the present but for a reasonable time in the future and the cost of the construction of such a system would exceed the sum of $100,000.00, and upon the assessed valuation hereinabove stated it would be necessary for the said city to make an additional annual levy of 10 mills to pay the interest on the additional bonds and provide for the retirement thereof at their maturity. Defendant is informed and believes that the present system is adequate under all the circumstances existing and that to incur such a debt as is hereinabove set forth and to make the tax levy necessary to care for the same would be to impose upon the taxpayers of said city an intolerable and unbearable burden, would cause an unnecessary expenditure of money and the benefits to be derived therefrom would be wholly out of proportion to the expenses necessary to be incurred."

A reading of the complaint will show that it contained allegations appropriate to two causes of action (if a municipal corporation could be sued in tort without the aid of a statute authorizing a municipal corporation to be sued in such case): One cause of action in tort for damages done respondent's property due to the negligence of appellant in failing to treat and purify the sewage with modern septic tanks, and in turning into a natural water course traversing respondent's land this raw sewage; and another cause of...