Summary
In Thompson, the court applied the prior trespass doctrine to bar recovery by the plaintiffs for any decrease in the value of land caused by the drainage of the defendant's sewer system onto the plaintiffs' land.
Summary of this case from City of Jackson, Miss. v. Filtrol Corp.Opinion
No. 32913.
November 29, 1937.
1. EMINENT DOMAIN.
In property owners' action against city for damages suffered from sewerage system, whether plaintiffs suffered special damages from maintenance of sewerage system held for jury.
2. DESCENT AND DISTRIBUTION.
Heirs could not recover damages for any decrease in value of land inherited which took place as result of city's sewerage system before heirs became owners.
3. DESCENT AND DISTRIBUTION.
Heir could not, nor could executor or administrator, under common law, sue at law for damages done by trespass committed during lifetime of ancestor on lands of ancestor.
4. EMINENT DOMAIN.
Constitutional provision that private property shall not be taken or damaged for public use except on compensation being first made applies to state as well as political subdivisions, including municipalities and regardless of whether taking or damaging is in exercise of governmental action or not (Const. 1890, section 17).
5. EMINENT DOMAIN.
City was liable for any special and different damage suffered by property owner, not common to general public, caused by construction and maintenance of its sewerage system whether properly constructed and maintained or not (Const. 1890, section 17).
6. EMINENT DOMAIN.
Liability under constitutional provision providing that private property shall not be taken or damaged for public use except on compensation being first made is not dependent on negligence but on taking or damaging (Const. 1890, section 17).
7. EMINENT DOMAIN.
In action by property owners against city for damages from sewerage system, instruction in substance that jury could not find for plaintiffs unless it believed from preponderance of evidence that injuries, if any, were caused by negligent construction and maintenance of sewerage system by city, held erroneous as presenting false issue and misleading because liability did not depend on negligence (Const. 1890, section 17).
APPEAL from the circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
Williamson Riddell, of Meridian, for appellants.
In support of appellants' contention that they were entitled to a peremptory instruction on the question of liability, we cite the case of Masonite Corporation v. Burnham, 146 So. 292, which holds that the non-navigable stream belongs to the riparian owners, and holding that each of several parties, discharging into stream refuse which intermingles and causes actionable nuisance, is liable only for his proportion of damages, in absence of common design or concerted action.
In the case at bar there was concert of action in that the municipal corporation caused the ditches to be dug and the natural drainage canals to be straightened, etc., for the specific purpose of carrying off and emptying onto plaintiff's property the refuse matter that the appellee contends was created by private persons or corporations.
A municipality cannot avoid its ministerial duty to prevent befoulment of its own gutters after notice of the nuisance so created.
Mayor of Vicksburg v. Richardson, 42 So. 234; Platt v. Waterbury, 72 Conn. 531, 77 A.S.R. 335.
The case of Jacksonville v. Lambert, 62 Ill. 519, holds "When a city constructs a sewer so that garbage, suds, slops, offal and filth from dwelling-houses and woolenmills by which it runs, are conducted and discharged upon and though private property in the city and near the terminus of the sewer, thus corrupting and polluting the air so as to render the land unfit for sale or for residence, the city is liable to the owner of the land for the damages sustained.
Reed v. Atlanta, 73 Ga. 523.
The pollution of a flowing stream by emptying into it the sewerage of a city, contaminating and poisoning its waters, and rendering it unfit for use by persons through whose premises it flows, is a public nuisance.
Mayor, etc. v. Land, 34 So. 613.
There was not any proof that any private individual did any damage whatsoever to plaintiffs or to their property except in concurrence with the City of Philadelphia under such circumstances that the City of Philadelphia was a joint tort-feasor.
Oliver v. Miles, 110 So. 666.
The court will bear in mind that all of the refuse matter, sewerage and filth accumulated within the corporate limits of the City of Philadelphia and was emptied into said stream of water above or north of the property of plaintiffs and that the only filth or sewerage that came onto plaintiff's property came from the sewer pipes and the sewer ditches within the corporate limits of the City of Philadelphia, and it was a public nuisance resulting in special damages to plaintiffs and their property and property rights, without regard to whether the ditches and sewer pipes and septic tanks were properly constructed and maintained or not. The sewerage system which consisted of sewer pipes, septic tank and surface ditches could have been perfect in construction and in maintenance so far as a sewerage system is concerned, and yet the city would be liable because undisputedly the sewerage coming out of its sewerage system was emptied into the natural stream and fouled the water of the natural stream as it flowed through plaintiffs' property.
20 L.R.A. (N.S.) 1050; McLaughlin v. City of Hope, 155 S.W. 910, 47 L.R.A. (N.S.) 137.
W.H. Sandford, Jr., of Philadelphia, and W.W. Pierce, of Jackson, for appellee.
Appellee was entitled to a directed verdict. The appellants are not entitled to damages for pollution of the natural watercourse through their lands, because their testimony shows that the conditions of which they complained existed thereon prior to the time they acquired title thereto and without any substantial change.
Blodgett v. Seals, 78 Miss. 522; Conklin v. Railway Co., 81 Miss. 152; Leavenworth v. Hunter, 150 Miss. 750; Masonite Corp. v. Burnham, 164 Miss. 840.
The testimony of the appellants showed that the same condition existed on appellants' land during the lifetime of their ancestor. That being true, no right of action would exist in favor of appellants.
The appellants were not entitled to a peremptory instruction. The facts in the case at bar show that the water falling on the natural drainage area, if left to flow, as it is, according to the laws of nature would pass over the appellants' land; the testimony inferentially shows that the F.E.R. had done something to try to relieve the congestion, and probably with the consent of the city, but the city took no part therein except to welcome or be a well wisher thereto. The evidence does not show any increase in damage by an act of the appellee, but that if the acts of the F.E.R. forces is to be charged to municipality, then the condition would be worse without what they did. Certainly the most ardent partisan could not render a verdict with any degree of certainty, because of the extreme difficulty to perceive what damage, if any, was caused by the appellee.
Watkins v. Port Gibson, 113 Miss. 38; Thompson v. City of Winona, 96 Miss. 591.
Argued orally by Nate S. Williamson, for appellant, and by W.W. Pierce, for appellee.
Appellants brought this action against appellee, the City of Philadelphia, in the circuit court of Neshoba county to recover special damages alleged to have been suffered by them because of the "improper sewer disposal on the part of said city through, on and over considerable acreage owned by the appellants and partly situated within the city of Philadelphia." There was a verdict and judgment for appellee, from which appellants prosecute this appeal.
The City of Philadelphia has a sewerage system that serves part, but not all, of the territory within the municipality; the western part of the city is unserved. Appellants own a body of farm and pasturage land, the principal part of which adjoins the corporate limits of the city on the south. There is a main residence on this land and houses occupied by tenants. Only fifteen or twenty feet from where appellants' land adjoins the city limits on the south there is a septic tank erected and maintained by the city in connection with its sewerage system. The western part of the city is served by surface closets generally located on natural drains, or ditches leading into natural drains. These drains and ditches emptied into a natural watercourse which ran in a southerly direction through appellants' land. The city sewage from the septic tank likewise flowed into this natural watercourse. In recent years the city, in conjunction with some federal agency, has straightened and channeled the watercourse, since which time this channel has served the same purpose.
Appellants' testimony tended to show that this drainage through their land caused offensive odors, rendered the water unfit for livestock use or any other purpose, and that the channel overflowed at times, damaging the land for pasturage purposes, and that these conditions had resulted also in damage to the value of the land. The testimony for the city was to the contrary — that appellants had suffered no damage whatever, either in the value of the land or in its use. It was therefore a question for the jury as to whether appellants had suffered any special damages as the result of the maintenance of this drainage system by the city. The court committed no error, therefore, in refusing appellants' request for a directed verdict on the issue of liability.
What has been said in this respect, however, has no application to any decrease in the value of the land which took place before appellants became the owners of it. They inherited the land from their father, who died in 1924. The evidence tended to show that to a large extent the same conditions existed then that have existed since, and that either the whole or a part of the decrease in the value of the land took place then. If appellants had a case, such damage was not a part of it. "The heir could not, nor could the executor or administrator, under the common law, sue at law for damages done by trespass committed during the lifetime of the ancestor on the lands of the ancestor." Conklin v. Ry. Co., 81 Miss. 152, 32 So. 920. In that respect the heirs are in the same category as a purchaser of land; the purchaser gets the land only and not any right of action for former trespasses. Blodgett v. Seals, 78 Miss. 522, 29 So. 852; Leavenworth v. Hunter, 150 Miss. 750, 117 So. 122; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 752.
Appellants complain of the following instruction given for the city: "The court instructs the jury for the defendant, that you cannot find for the plaintiffs in any sum, or sums, whatever, unless the jury believe from a preponderance of the evidence, that the wrongs and injuries, if any, complained of in plaintiff's declaration, was caused by the negligent construction and maintenance of a sewerage system by the defendant in the City of Philadelphia."
The criticism is that it presents an issue that is not involved in the case so far as liability in concerned; that the city, if it has caused the appellants special damages, is liable, regardless of whether the sewerage system was negligently constructed and maintained. Section 17 of the Constitution is controlling; it provides, among other things, that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof;" and it applies to the state, as well as all of its political subdivisions, including municipalities, and regardless of whether the taking or damaging is in the exercise of governmental action or not. Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298; City of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; City of Laurel v. Rowell, 84 Miss. 435, 36 So. 543; Thompson v. Winona, 96 Miss. 591, 51 So. 129, Ann. Cas. 1912B, 449; Illinois Central R. Co. v. State, 94 Miss. 759, 48 So. 561; Covington County v. Watts, 120 Miss. 428, 82 So. 309; Morris v. Covington County, 118 Miss. 875, 80 So. 337; Jackson v. Monroe County, 124 Miss. 264, 86 So. 769; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452; City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160; City of Vicksburg v. Richardson, 90 Miss. 1, 42 So. 234; City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355.
In the Town of Drew Case the plaintiff based his ground of recovery upon the alleged improper and negligent maintenance of a septic tank connected with the town's sewerage system. He claimed special and different damage not common to the general public. That is also true in the case at bar. However, liability does not depend on improper construction and maintenance. The city is liable for any special and different damages suffered by appellants, not common to the general public, caused by the construction and maintenance of its sewerage system whether properly constructed and maintained or not. In other words, the liability under section 17 of the Constitution is not dependent on negligence but on the taking or damaging.
It follows that the instruction complained of was erroneous; it presented a false issue and was calculated to mislead the jury.
Reversed and remanded.