Uvalde Electric Light Co. v. Parsons

• Citation: 138 S.W. 163
• Parties: UVALDE ELECTRIC LIGHT CO. v. PARSONS et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 26 April 1911
• Court: Texas Court of Appeals

138 S.W. 163

UVALDE ELECTRIC LIGHT CO. v. PARSONS et al.^†

Court of Civil Appeals of Texas. San Antonio.

April 26, 1911.

On Motion for Rehearing, May 24, 1911.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by W. H. Parsons and others against the Uvalde Electric Light Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Martin, Old & Martin, G. B. Fenley, and Claude Lawrence, for appellant. Love & Williams and Jno. W. Hill, for appellees.

NEILL, J.

This suit was brought by W. H. Parsons and his wife, Alice, for themselves, and by W. H. Parsons, as next friend, for their several minor children, whose names need not be mentioned, against the Uvalde Electric Light Company to recover damages alleged to have been caused from its construction and operation of an electric light and ice plant in close proximity to certain lots owned by the two first-named parties, and on which they resided with their children and had their home. The defendant interposed a general demurrer, a number of special exceptions, among which was one that it appears that plaintiffs' action is barred by the two-year statute of limitation from the face of plaintiffs' second amended original petition, and then pleaded not guilty and the two-year statute of limitation. The case was tried before a jury and resulted in a judgment in favor of the two first-mentioned plaintiffs in the sum of $500 each, and that the minors recover nothing. The electric light company has appealed from the judgment recovered against it.

In the view we take of the case, we need only consider the assignment which complains of the court's overruling the special exception urged against the petition, upon the ground that it is apparent from its face that the cause of action it alleges is barred by the two-year statute. The petition in question shows that the suit was instituted by plaintiffs filing their original petition on June 2, 1909. It alleges substantially that on or about August 6, 1906, defendant located, erected, and put the plant in operation, and has since that date operated it for generating electricity and manufacturing ice on lots Nos. 457 and 461, in block No. 23, in the city of Uvalde; that the location of the plant is diagonally across the street southeast of plaintiffs' home, and about 75 feet from their front yard; that, in operating the plant, defendant runs a steam engine in which wood was first used up to June 5, 1907, after that coal was continuously used until February 1, 1909, when crude oil was substituted and has ever since been used for that purpose; that the maintenance and operation of said light and ice plant and burning such fuel have caused and causes immense quantities of smoke and soot to arise therefrom, and immense quantities of smoke, soot, cinders, ashes, gases, and odors have arisen therefrom since the date it was first put in operation; that its operation has produced and produces a great amount of noise, such as frequently blowing a whistle, consequent to running heavy machinery and exhaust of steam; that in maintaining and operating the plant quantities of waste water have been allowed to accumulate on defendant's premises, which has caused the breeding of mosquitoes and other malarious insects, and gives off nauseous odors; that all the above-mentioned evils render said plant objectionable, offensive, and a nuisance to plaintiffs, in that the smoke and soot settles on their house, trees, shrubbery, bedding, furniture, clothes, dishes, milk, and all other articles of food. Upon the foregoing allegations plaintiffs base their entire action for damages, which are alleged to be deterioration in value of the land on which they reside as their home, and personal discomfort to each of them. Was their cause of action, if any they had, barred by the two-year statute?

When the original nuisance is of a permanent rather than transient character so that the damage inflicted thereby is of a permanent nature, and will likely continue for an indefinite period, and during its existence deprive the landowner of any beneficial use of that portion of his estate affected by it, a recovery not only may, but must, be had for the entire damage in one action, as the damage is deemed to be original; and as the entire damage accrues from the time the nuisance is created, and only one recovery can be had, the statute of limitations begins to run from the time of its creation against the owner of the estate affected thereby. Waterworks v. Kennedy, 70 Tex. 234, 8 S. W. 36; Lyles v. T. & N. O. Ry., 73 Tex. 95, 11 S. W. 782; M., K. & T. Ry. v. Graham, 12 Tex. Civ. App. 54, 33 S. W. 577; Umscheid v. City of San Antonio, 69 S. W. 496; Sutherland v. G., H. & S. A. Ry. Co., 108 S. W. 969; Wood on Limit. (3d Ed.) § 108; Joyce, Nuis. § 459.

But the rule in reference to acts amounting to a continuing as distinguished from a permanent nuisance seems to be that every continuance is a new nuisance for which a fresh action will lie, so that, although an action for the damages for the original nuisance may be barred, damages which accrued during such time as was not within such period as would bar the action may be recovered. For the continuance of that which was originally a nuisance is regarded as a new nuisance, and, although a recovery may be barred upon the original cause, an action may be brought at any time before an action is barred to recover such damages as have accrued by reason of it within the statutory period.

If a nuisance is such as may be abated by law, it is not regarded as a permanent source of injury, but as a continuing nuisance, for which successive actions for damages occasioned by it may be brought and maintained from time to time as they are inflicted. This is illustrated by the...