Thompson v. City of Winona

• Citation: 51 So. 129,96 Miss. 591
• Decision Date: 31 January 1910
• Docket Number: 14,280
• Court: United States State Supreme Court of Mississippi
• Parties: EDWARD M. THOMPSON v. CITY OF WINONA

51 So. 129

96 Miss. 591

EDWARD M. THOMPSON v. CITY OF WINONA

No. 14,280

Supreme Court of Mississippi

January 31, 1910

March 1, 1910

FROM the circuit court of Montgomery county, HON. JAMES STONE Special Judge.

Thompson appellant, was plaintiff in the court below; the city of Winona, a municipality operating under the Code of 1906 chapter entitled "Municipalities," appellee, was defendant there. From a judgment sustaining the demurrer of the city to the declaration and dismissing the suit the plaintiff appealed to the supreme court.

The declaration charges that the plaintiff, Thompson, is the owner of designated real estate situated on Hay's Creek without the corporate limits of the city of Winona; that the Winona Water, Sewerage, Ice & Light Company, under contract with the city of Winona has laid and is operating a sewerage system through the streets of the city, the same emptying into a creek beyond the municipal limits; that the current of the creek is not sufficient to carry off the sewage matter especially during dry weather; that the city had, by ordinance, compelled its residents under penalty to connect their premises with such sewerage system; and that as a result the lands of plaintiff, situated on the creek, had been greatly depreciated in value and plaintiff had been injured by disagreeable odors and the pollution of the water of the creek resulting from the emptying of the sewage into it; that parts of his land formerly used for pasturage purposes, and other parts thereof formerly used for cultivation, had been rendered unfit for such uses because of the close proximity thereto of the mouth of the sewer. The declaration prayed judgment for damages in the sum of $ 1,380.

The city demurred to the declaration on the ground that it did not own the sewerage system, and received nothing in the way of fees or other compensation for its use and operation, as shown by the contract set forth in the declaration.

Reversed and remanded.

Coleman & McClurg for appellant.

Power conferred upon a municipality to establish a drainage system does not authorize it to establish a system which constitutes a nuisance and the fact that a municipality is authorized to condemn land for public purposes, confers no power on it, the right of condemnation not having been exercised, to flood the land of a private citizen for the purpose of creating a nuisance. In the instant case the city, as shown by the maps, charts, and surveys, directed the building of the main sewer through the city limits and one fourth of a mile beyond into the creek without condemnation of the outside lands, or compensation paid to appellant for thus imposing upon him. If the right to construct and maintain a sewerage system is conferred upon a city by its charter, or by statute law, the authority must be exercised in conformity with private rights and the system can not be so constructed as to render it a nuisance. Joyce on Nuisances (1906) §§ 80, 282, 285, 289, 354, 356.

We insist that, in view of the situation of the city on the slope of the hills, and because of the sluggish waters of the creek, no reasonable man could possibly deny that a nuisance had been inflicted on appellant. These facts taken together with the affirmative city ordinances for construction on the lines of its survey and in ratification and approval of what had been done by its joint action with the sewerage company, render the city liable for its obvious wrongs in both instances.

While our contention is not based upon the doctrine of respondeat superior alone, such doctrine is applicable here. The main strength of our case lies in the concurrent joint action of the city and the sewerage company in committing a civil wrong, or tort. The sewerage company was the agent of the city, and therefore the superadded duty was imposed upon the city to carefully instruct its agent, and to see that its work was properly done, especially with reference to the rights of others. Clark & Skyles on Agency, 1133.

Hill, Knox & Wilburn, for appellees.

It seems to be contended by opposing counsel that after the building and construction of the sewerage system by the sewerage company, the city ratified and approved the same by passing an ordinance requiring the inhabitants to make connections with the sewer and to pay tolls assessed therefor, or, in default thereof to be punished as for a misdemeanor by the city authorities, and that many of the inhabitants did comply with the ordinance. Now, as to such alleged ordinance, we contend that the same was purely an attempted legislative enactment on the part of the city; and that the city is not liable for any of its legislative enactments; and furthermore, the declaration does not show that the city ever enforced or attempted to enforce such ordinance. While many of the citizens have complied with the ordinance, their doing so could not in any event make the city liable; and we contend that the ordinance, so passed by the city, was illegal and could not have been enforced as...