Stevinson v. Deffenbaugh Industries, Inc.
| Decision Date | 07 December 1993 |
| Docket Number | No. WD,WD |
| Parties | Joseph STEVINSON, et al., Respondents, v. DEFFENBAUGH INDUSTRIES, INC., Appellant. 47107. |
| Court | Missouri Court of Appeals |
Richard Daly Rhyne, Kansas City, for appellant.
John Edmund Turner, Kansas City, for respondents.
Before HANNA, P.J., and LOWENSTEIN and FENNER, JJ.
Appellant, Deffenbaugh Industries, Inc. (Deffenbaugh), appeals from adverse judgments, after trial by jury, in favor of respondents. Respondents brought the action below as plaintiffs in regard to the operation by Deffenbaugh of the Woods Chapel Landfill.
Respondent, Joseph Stevinson (Stevinson), owns a tract of land, where his home is located, adjacent to and north of the Woods Chapel Landfill. 1 Respondent, Stevinson Auto and Electrical School Company, Inc. (Stevinson Auto), is a corporation which formerly operated a technical school in downtown Kansas City, Missouri. Currently, the only business of Stevinson Auto is ownership of unimproved land which abuts the western most border of the Woods Chapel Landfill.
Respondents Ross and Carol Miller own a tract of land, where their home is located, adjacent to and mostly south of the Woods Chapel Landfill.
Deffenbaugh purchased the Woods Chapel Landfill on or about June 14, 1984. Prior to the purchase by Deffenbaugh, the rights to operate the landfill had been held by various entities from 1972 to 1984. Respondents filed the underlying action against Deffenbaugh on June 13, 1989 under theories of negligence and nuisance. Respondents' action was ultimately submitted on their allegations of nuisance representing that they were damaged by Deffenbaugh's unreasonable operation of the Woods Chapel Landfill. The respondents presented evidence to show that their right to enjoy and use their property peacefully was substantially impaired by Deffenbaugh's unreasonable operation of the landfill which created noise, dust, litter, odor, and general pollution of their property.
In its first point on appeal, Deffenbaugh alleges that the trial court erred by allowing evidence and instructing the jury on the reduction in fair market value of respondents' properties, and refusing Deffenbaugh's instructions which would have withdrawn evidence of reduction in fair market value. In this regard, Deffenbaugh argues that the case was tried and submitted on a theory of temporary nuisance and that reduction in fair market value is not the proper measure of damages for a temporary nuisance.
Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his property. Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 880 (Mo. banc 1985). The law of nuisance recognizes two conflicting rights: 1) property owners have a right to control their land and use it to benefit their best interests; and, 2) the public and neighboring land owners have a right to prevent unreasonable use that substantially impairs the peaceful use and enjoyment of other land. Id. The unreasonable use element of nuisance balances the rights of adjoining property owners. Id.
A nuisance is temporary if it may be abated, and it is permanent if abatement is impracticable or impossible. Id. at 883. Damages for a permanent nuisance are measured by the difference in the land's market value immediately before and after injury. Id. at 883. Damages for a temporary nuisance are the decrease in rental or useable value of the property as well as any special costs. Id. at 883. The character of the source of injury often distinguishes temporary and permanent nuisances. Id. at 883, (citing Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787 (Mo.App.1980)). 2
In Frank, the plaintiff landowners sued Environmental Sanitation Management, Inc. (ESM), owner of a landfill, for damages arising out of ESM's maintenance of a permanent nuisance. Id. at 878. The plaintiffs alleged that ESM allowed contaminated water to run across their property. The contaminated water, together with the residue it carried, was referred to as leachate. 3 Id. at 879.
ESM argued that the jury should have been instructed on damages for a temporary rather than a permanent nuisance. However, the court noted that the evidence showed that expensive and sophisticated leachate control plans failed to stop the contamination and that this justified permanent damages. Id. at 883. The court further held that a stigma had attached to the land from repeated leachate outbreaks and that the stigma permanently devalued the plaintiff's property, thus justifying an award of permanent damages. Id. at 883.
When a nuisance is permanent, full damages for permanent injury must be assessed in one action. Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626, 631 (Mo. banc 1942). When a nuisance is "temporary, continuing or abatable," an injured party can bring a subsequent action for injuries sustained by the continuation of a temporary nuisance. Spain v. City of Cape Girardeau, 484 S.W.2d 498, 503 (Mo.App.1972).
As recognized in Spain, whether a particular nuisance is permanent or temporary is often a confusing area of the law. "The terms are, in reality, often only short-hand conclusions to determine the outcome of a particular case or the legal effects of certain defenses, such as the statute of limitations." Id. at 503-04.
For a permanent nuisance, the period of limitations runs immediately upon creation of the permanent nuisance and bars all claims of damage, present and future, after lapse of the statutory period. Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 792 (Mo.App.1980). The effect of an adjudication of permanent nuisance is to declare to the tort-feasor an unabated right to continue the trespass. Id. Thus, a permanent nuisance no less than an exercise of eminent domain destroys the estate or beneficial use in the land and entitles the owner to the same measure of compensation: the depreciation in the market value of the land damaged. Id. (citations omitted).
The period of limitations as to a temporary nuisance runs anew from the accrual of injury from every successive invasion of interest. Id. The recovery is for the damage actually sustained to the commencement of suit, but not for prospective injury. Id. (citation omitted). The theory is that a temporary nuisance may be abated at any time by a reasonable effort or by an order of the court, but if not, then the injured party can bring a successive action for the continuance of damage. Id. As the Rebel court stated:
The right to a successive action for the continuance of a nuisance rests on the principle that the tort-feasor "is under legal obligation to remove, change, or repair the structure or thing complained of, and thereby terminate the injury to his neighbor; and, failing so to do, each day's continuance of the nuisance is a repetition of the original wrong, and a new action will lie therefor." The law assumes that a temporary nuisance will abate--if not by voluntary act of the tort-feasor then by judicial agency--and so confines recovery to injury already accrued. Thus, the measure of damages from a temporary nuisance is the depreciation of the rental or use value of the land during continuance of injury, as well as any special costs.
Id. at 792-93 (citation omitted).
In the case at bar, respondents pleaded and submitted their case on the theory of temporary nuisance. However, relying chiefly on Frank, 687 S.W.2d 876 (Mo. banc 1985), respondents argue that they were entitled to permanent damages. To support their claim for permanent damages, evidence was offered by respondents, and received, to establish that because of the unreasonable operation of the Woods Chapel Landfill a stigma had attached to respondents' properties that rendered the properties permanently devalued. Deffenbaugh argues that it was error for the trial court to admit evidence of permanent damages and instruct the jury accordingly.
The difference between Frank and the case at bar is that Frank was an action for damages for what was alleged to be a permanent nuisance. As acknowledged by respondents, the case at bar was an action for damages for what was alleged and tried as a temporary nuisance.
Different statutes of limitations, defenses and damages being applicable to the different theories of recovery, a plaintiff is not entitled to recover permanent damages when only a temporary nuisance is alleged and the case tried on a theory of temporary nuisance. Frank does not hold otherwise. Frank merely stands for the proposition that in an action on a permanent nuisance, evidence of devaluation of property as a result of a stigma attaching is substantial evidence for an award of permanent damages. Frank does not hold that permanent damages are recoverable in an action presented solely on a theory of temporary nuisance.
In an action for damages in what was pleaded and presented in the case at bar as a temporary nuisance, it was error for the trial court to allow evidence and instruct the jury on reduction in fair market value. Reduction in fair market value constitutes permanent damages which are not recoverable for a temporary nuisance. Accordingly, this cause is remanded for new trial. Nonetheless, this does not end our review in that appellants raise other issues that we deem appropriate to address as likely to recur on retrial. 4
In its third point, Deffenbaugh argues that the trial court erred by admitting evidence of events occurring prior to the dates of two previous actions between the parties. Deffenbaugh argues that said events were barred by the failure of respondents to assert compulsory counterclaims and that the trial court erred by refusing Deffenbaugh's tendered instruction which would have withdrawn any evidence of loss having occurred...
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