Town of Rome City v. King

• Decision Date: 20 June 1983
• Docket Number: No. 3-882A224,3-882A224
• Citation: 450 N.E.2d 72
• Parties: TOWN OF ROME CITY, Appellant (Defendant Below), v. Mary Louise KING and Kenneth A. King, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 72

450 N.E.2d 72

TOWN OF ROME CITY, Appellant (Defendant Below), v. Mary Louise KING and Kenneth A. King, Appellees (Plaintiffs Below).

No. 3-882A224.

Court of Appeals of Indiana,

Third District.

June 20, 1983.

John F. Lyons, Alan Verplanck, Barrett, Barrett & McNagny, Fort Wayne, Daniel F. Diggins, Emerick & Diggins, Kendallville, for appellant.

David L. King, King & King, Kendallville, for appellees.

HOFFMAN, Presiding Judge.

Appellees Mr. and Mrs. King own two lots located on a peninsula extending northeasterly into Sylvan Lake. Lot 14 used for appellees' residence is located at the foot of the peninsula while Lot 15 of appellees is located at the neck. A road appearing on the plats of public record extends down the neck of the peninsula along the western edge of Lot 15 to appellees' residence. Appellant Rome City constructed a sewage pumping station, placing part of it in the area platted for the road and part on Lots 14 and 15. The operation of the facility has resulted in noise and odor which greatly annoy appellees. Also, on several occasions raw sewage has flowed onto Lot 14. Appellees brought suit for negligence and nuisance against Rome City. The judge entered the following findings after a bench trial:

"FINDINGS OF FACT

1. The plaintiffs are the owners of Lots 14 and 15 in Beck's Penisola Retreat Addition to Sylvan Lake, Rome City, Noble County, Indiana.

2. The Town of Rome City constructed and now maintains certain sewage equipment on and near the real estate of the plaintiffs.

3. A pumping station was placed by the defendant on a platted public roadway leading to Lot 14 of the plaintiffs and the grinder pump controls were placed by defendant on Lot 15 of plaintiffs.

4. On several occasions the pumping station has failed to function resulting in raw sewage flowing over the property of the plaintiffs, which is injurious to the health of the plaintiffs and offensive to their senses.

5. Odors and noises emit from the pumping station interfering with the comfortable enjoyment of plaintiffs' use of their property.

6. There are no safeguards to prevent the pump station from malfunctioning.

7. The plaintiffs have been damaged each time the raw sewage has flowed over plaintiffs' property and will continue to be damaged each time the pumping station fails to work properly.

8. The value of plaintiffs' property is diminished by the location of the pumping station.

9. The pumping station constitutes a nuisance.

10. The question of the taking of plaintiffs' property by the location of the grinder pump on Lot 15 is in litigation and should be decided in that case.

"CONCLUSION

1. That the plaintiffs are entitled to recover damages from the defendant for each time the pump has failed and sewage has spilled onto plaintiffs' property and for the diminution of the value of their property.

2. The pumping station should be moved so as not to interfere with plaintiffs peaceful enjoyment of their property or reimbursed for the loss of value of their property.

IT IS THEREFORE ORDERED AND ADJUDGED that plaintiffs have and recover from the defendant the sum of Six Thousand Dollars ($6,000.00) for the time when sewage has spilled over plaintiffs' property.

IT IS FURTHER ORDERED AND ADJUDGED that the defendant abate and remove the pumping station and locate it at a point so as not to interfere with the use and enjoyment of plaintiffs' property or pay to the plaintiffs the sum of Fifty Thousand Dollars ($50,000.00) for the loss of value of plaintiffs' property.

The defendants have one hundred (100) days within which to relocate the pumping station or pay plaintiffs Fifty Thousand Dollars ($50,000.00)."

Record at 156-158.

On appeal several issues were raised by both parties and have been restated below:

(1) whether appellant failed to comply with Ind.Rules of Procedure, Appellate Rule 8.3(A)(3), (7) regarding certain issues thereby waiving those issues;

(2) whether appellant failed to comply with Ind.Rules of Procedure, Trial Rule 5 thus barring appellant's claim that the trial court's findings were inadequate;

(3) whether the evidence was sufficient and the findings of the trial court adequate to support the requisite elements necessary to recover for a public nuisance;

(4) whether the spillage of raw sewage was caused by an intervening party thus freeing Rome City from liability; and

(5) whether the damages awarded by the trial court were speculative and excessive.

At the outset this Court shall address the procedural issues raised by appellees. First, the appellees contend that appellant failed to specifically set out the applicable section of its motion to correct errors in the argument section of its brief as mandated by Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). The appellees contend this error bars appellant from alleging the spillage of raw sewage was due to the negligence of Northern Indiana Public Service Company.

This Court prefers to decide a case on its merits when possible. Where the parties substantially comply with the appellate rules, the Court will reach the merits of the dispute. Ind. St. Bd. Tx. Comm'rs v. Lyon & Greenleaf (1977), 172 Ind.App. 272, 359 N.E.2d 931; Yerkes v. Washington Mfg. Co. et al. (1975), 163 Ind.App. 692, 326 N.E.2d 629.

It is not necessary that appellants quote the precise language of their motion to correct errors as long as a concise restatement of error is included in the argument section of their briefs. State, Dept. of Admin., Per. Div. v. Sightes (1981), Ind.App., 416 N.E.2d 445; Urbanational Develprs. Inc. et al. v. Shamrock (1978), 175 Ind.App. 416, 372 N.E.2d 742.

Appellant has substantially complied with this rule in view of its memorandum in support of its motion to correct errors which further illuminates the position argued by appellant. A concise statement of the principle argument contained in the specific allegation of error was included in each argument section. Dept. of Rev. v. Frank Purcell Walnut Lmbr. Co. (1972), 152 Ind.App. 122, 282 N.E.2d 336. The noncompliance in the instant case is not so substantial as to interfere with a rational consideration of the issues. However, counsel should be advised that a good faith effort to comply with the letter of the rules is preferred, since to do otherwise is to incur risk where it can be avoided.

The appellees next contend that appellant is barred from alleging the trial court's findings are inadequate because it failed to raise that error in its motion to correct errors. This contention is not supported by the record. Appellant's assignment of error No. 4 states:

"The special findings of fact required by Indiana Trial Rule 52 are lacking, incomplete and do not cover the issue raised by the pleadings or evidence." (Emphasis added.)

Record at 2.

This assignment of error is a challenge to the adequacy of the court's findings couched in different language and satisfies the rule.

The appellees next contend that appellant is barred from alleging the trial court's findings were inadequate for a wholly different reason. This argument is based on the contention that appellant's failure to notify appellees of its proposed findings, pursuant to T.R. 5, renders them invalid. Since appellant's proposed findings are invalid, it cannot complain that the findings entered by the trial court are inadequate.

The findings entered by the trial court must serve as an adequate basis for the legal result reached in the judgment. Sandoval v. Hamersley (1981), Ind.App., 419 N.E.2d 813; K.B. v. S.B. (1981), Ind.App., 415 N.E.2d 749. Thus, just as when the issue of sufficiency of evidence is raised so long as the error is preserved in the motion to correct errors this Court will review the adequacy of special findings entered by the trial court.

When reviewing a bench trial where findings of fact and conclusions of law have been requested by the parties and entered by the trial court, this Court will not set aside the findings or judgment unless clearly erroneous. Ind.Rules of Procedure, Trial Rule 52(A);

Cornett v. Cornett (1981), Ind.App., 412 N.E.2d 1232. The judgment of the trial court is clearly erroneous when it leaves this Court with the definite and firm conviction that a mistake has been committed, and where the evidence is conflicting, deference shall be given the trial court's decision. Young v. Bryan (1977), 178 Ind.App. 702, 368 N.E.2d 1.

Where special findings are made by the trial court, they must be sufficient to disclose a valid basis for the legal result reached in the judgment. Sandoval v. Hamersley, supra; K.B. v. S.B., supra. The purpose of special findings is to provide the parties and reviewing court with the theory upon which the dispute was resolved. This Court must accept the findings made by the trial court if they are supported by evidence of probative value and may not add to the findings by way of presumption or inference. Miller, etc. v. Ortman, etc., et al. (1956), 235 Ind. 641, 136 N.E.2d 17; Malbin & Bullock, Inc. v. Hilton (1979), Ind.App., 387 N.E.2d 1332; In re Marriage of Miles (1977), 173 Ind.App. 5, 362 N.E.2d 171.

At trial and on appeal the Kings assert three grounds as support for the court's ruling that appellant's construction and operation of the sewage pumping station creates a nuisance. First, they argue that the machinery is placed in a manner which blocks a platted public road constituting a nuisance per se. Next, they allege that the noise and odor emanating from the pumping station constitutes a nuisance. They also contend the spillage of raw sewage on their land numerous times each year constitutes a nuisance. The findings of fact entered by the trial court indicate the judge considered all three of these arguments, and the conclusions of law and judgment are so broad as to be applicable to all three types of behavior.

When a private person attempts to recover damages from a municipality for a nuisance maintained by that municipality, there are certain...