Summary
holding that trial court erred by granting directed verdict for defendant over plaintiff's constitutional taking-or-damaging claim when evidence showed that city permitted sewage tank to fall into disrepair that caused sewage to overflow and contaminate plaintiff's land
Summary of this case from Williams v. City of BatesvilleOpinion
No. 31514.
February 11, 1935. Suggestion of Error Overruled March 25, 1935.
1. APPEAL AND ERROR.
In determining propriety of directed verdict for defendant, evidence for plaintiff is to be taken as true.
2. ACTION.
Although separate and distinct causes of action of husband and wife cannot be joined in one action by both, where issues are same and recovery goes to both or to one for benefit of both, there is only one cause.
3. TRESPASS.
Lawful possession of land, although unaccompanied by title, is sufficient to support action for damages for interference with lawful enjoyment of premises by person in possession.
4. NUISANCE.
One in possession of land may recover for injuries caused by nuisance to health or person of himself or other occupants who are members of his family.
5. HUSBAND AND WIFE.
In action for damages to land from defective sewage tank, where, although title was in wife, husband had complete charge of land, owned and collected all rents from crops, financed farming operations and paid all taxes, wife held properly joined with husband as party plaintiff, and dismissal as to her was error (Code 1930, sections 605, 606).
6. APPEAL AND ERROR.
In action against town for damages to land caused by defective sewage tank, landowners held not precluded from challenging propriety of directed verdict for defendant, although instruction was not excepted to nor motion for new trial made assigning as ground giving of the instruction, in view of statute and court rule making such action unnecessary (Code 1930, section 586; Supreme Court rule 6, section 3).
7. MUNICIPAL CORPORATIONS.
In action against municipality for damages to land caused by overflow from defective sewage tank, it was incumbent on owners to show some special and different damage not common to general public.
8. MUNICIPAL CORPORATIONS.
Evidence disclosing that municipality permitted sewage septic tank to fall into disrepair to extent that sewage overflowed, contaminated land, and emitted offensive and nauseating odors, established special damage to landowners, not common to general public, authorizing recovery of damages.
9. EMINENT DOMAIN.
Constitution prohibiting taking or damaging of property for public use applies to state and political subdivisions including municipality, regardless of whether the taking or damaging is in exercise of governmental action or not (Const. 1890, section 17).
10. EMINENT DOMAIN.
Landowners could recover for damages to land caused by overflow from defective municipal sewage septic tank, in view of constitutional prohibition against taking or damaging of private property for public purposes, as regards municipality's contention that in maintaining septic tank it was exercising police power of conserving public health, which was governmental function, in exercise of which, although wrongful, municipality was not liable for damage (Const. 1890, section 17).
APPEAL from circuit court of Sunflower county.
HON. S.F. DAVIS, Judge.
Action by T.J. Hodges and wife against the Town of Drew. From an order directing verdict for defendant and judgment entered thereon, plaintiffs appeal. Reversed and remanded.
B.B. Allen, of Indianola, for appellant.
The plaintiff showed by uncontradicted testimony that as a result of a nuisance maintained by the city on account of the improper construction or improper maintenance of the sewerage system and septic tank, that he sustained special damages to his person and to his property.
Green v. Lake, 54 Miss. 540; Pearman v. Wiggins et al., 103 Miss. 4.
A private individual may have relief against public nuisance, and is entitled to proceed in equity for the abatement of, or an injunction against, the nuisance, or to maintain an action at law for damages on account of the special injury which he has received.
46 C.J. 729; Green v. Lake, 54 Miss. 540; 7 Words Phrases, Third Series; Smith v. Boston, 7 Cush. 254; Nesbitt v. City of Greenville, 69 Miss. 22; Cauthen v. City of Canton, 144 Miss. 471; City of Vicksburg v. Richardson, 90 Miss. 1, 42 So. 234; City of Vicksburg v. Porterfield, 164 Miss. 581; Thompson v. Winona, 96 Miss. 591; Semple v. Mayor Board of Aldermen of Vicksburg, 62 Miss. 63; 8 McQuillan on Municipal Corporation, page 8292, sections 2695, 2696, 2699, and 2706; Henerson v. Robinson, 152 Ky. 245, 153 S.W. 224; Taylor v. Baltimore, 99 A. 900, L.R.A. 1917C, 1046.
A municipality creating and maintaining a nuisance is liable to any person suffering special injury therefrom irrespective of whether the misfeasance or nonfeasance causing the nuisance also constituted negligence, and its liability cannot be avoided on the ground that it was exercising a governmental function.
Hoffman v. City of Bristol, 75 A.L.R. 1191; Melker v. New York, 16 L.R.A. (N.S.) 621; 75 A.L.R. 1196; Macon v. Roy, 34 Ga. App. 603, 130 S.E. 700; McQuillan on Municipal Corporations, sec. 1451.
If a public nuisance causes injury to an individual different from that to public generally, substantial in nature, that individual may have a civil remedy.
Deering v. Martin, 116 So. 54, 95 Fla. 224; Biscayne Co. v. Martin, 116 So. 66, 95 Fla. 259; Section 2391, Code of 1930; Leflore County v. Allen, 80 Miss. 298, 31 So. 815; Crawford v. Town of D'Lo, 119 Miss. 28, 80 So. 377.
There was no misjoinder of the parties plaintiff in the lower court, because Mr. and Mrs. Hodges, the joint plaintiffs, each suffered special damages from the same negligent act of the defendant and as such are entitled to maintain this suit jointly against the Town of Drew.
47 C.J. 55.
J.O. Eastland, of Ruleville, for appellants.
The authorities to sustain an action of this kind are numerous, not only in Mississippi, but practically all over the United States.
20 R.C.L. 425, par. 41; Poston v. L.E. Craw, 15 U.S. L.Ed. 118; Richardson v. Boston, 16 U.S. 625, 24 How. 188; 43 C.J., page 956, sec. 1734, page 1148, sec. 1907, and page 1149, sec. 1908.
Municipal corporations are to be considered as artificial persons owning and managing property. In this last capacity, they are chargeable with all of the duties and obligations of other property owners and must respond for creating nuisances under the same rules which govern the responsibility of mature persons.
2 Cooley on Torts, page 1302; City of Vicksburg v. Richardson, 90 Miss. 1.
A municipality cannot pollute a stream or a watercourse by emptying its sewage therein so as to constitute a nuisance by causing the stream to give off foul and noxious odors, and which deposits sewerage on property lower down the stream and which causes odors that prevent riparian owners and those living near the place the sewerage is discharged from cultivating lands contiguous to the stream and which molest them and deprive them of the use and enjoyment and comfortable occupancy of their homes and property.
Bird v. City of Grand Rapids, 50 L.R.A. (N.S.) 473; Thompson v. City of Winona, 96 Miss. 591; Hinds v. City of Nevada, 32 L.R.A. (N.S.) 797; Taylor v. City of Baltimore, L.R.A. 1917C, page 1046; City of Mansfield v. Brister, 10 L.R.A. (N.S.) 806; McLaughlin v. City of Hope, 47 L.R.A. (N.S.) 137; McDaniel v. City of Cherryville, 50 L.R.A. (N.S.) 388; City of Hampton v. Watson, L.R.A. 1916F, 189; Joyce v. Village of Janesville, L.R.A. 1916D, 426; Parish v. Town of Yorkville, L.R.A. 1915A, 282; Green v. Lake, 54 Miss. 50; 2 Cooley on Torts, page 1299.
The appellant was deprived of the comfortable enjoyment of his home and this alone is such special damage peculiar to himself as will sustain an action for the creation or maintenance of a nuisance where foul odors invade his home.
Lynn v. San Luis Obispo, 42 P. 437; Fisher v. Zum Walt, 61 P. 82; Harlz v. Merrill Brick Co., 48 N.W. 1000; Millhiser v. Willard, 65 N.W. 325; Town of Union v. Rivers, 128 So. 586.
The elements of special damages in the Rivers case, 128 So. 586, were identical to the damages proven in the present case.
46 C.J., page 737, sec. 318 1/2 and page 738, sec. 318 1/3.
A person in legal possession of the premises, may recover damages for injury caused by a nuisance to the health or person of himself or of other occupants who are members of his family.
46 C.J. 738, sec. 318 1/4; Prisby v. Benjamin, 169 N.Y. 377.
Persons jointly effected by a tort must join in an action to recover for the injury.
20 R.C.L. 675, par. 14; 47 C.J. 55; Cleveland v. Grand Trunk R.R. Co., 42 Vt. 449; Gulf R.R. Co. v. City Service Co., 281 Fed. 214; Russell v. Stocking, 8 Conn. 236.
Taylor Marsalis, of Drew, and Moody Johnson, of Indianola, for appellee.
Without objection by the plaintiff, a peremptory instruction was given for the defendant, upon which a judgment was entered without objection by the plaintiff. No motion for a new trial was filed by the plaintiff, and, of course, there is no order overruling the same.
Under our system of practice, a party to an action at law may except specially to any action of the trial court, or he may except generally by filing a motion for a new trial, and incorporate therein all exceptions. If a motion for a new trial is filed and overruled it is not necessary for a party to the action to except to instructions given or refused, but if a motion for a new trial is not filed and overruled, it is necessary that exceptions or objections be taken to the action of the court in giving and refusing instructions.
Hutch. Dig. 885, art. 7, sec. 1; Scott v. State, 31 Miss. 473, 477; Memphis Charleston R.R. Co. v. Chastine, 54 Miss. 503, 507-8.
Of course exceptions can be taken otherwise than by a motion for a new trial. But unless taken otherwise, or by a motion for a new trial, there are no exceptions on which error can be assigned or predicated.
R.R. Co. v. Chastine, 54 Miss. 503; Field v. Weir, 28 Miss. 67; Watson v. Dickens, 12 S. M. 608; Mayer v. McLure, 36 Miss. 397, 72 Am. Dec. 190; Scott v. State, 31 Miss. 473; Barney v. Scherling, 40 Miss. 320; Bourland v. Board of Supervisors, 60 Miss. 996, 1001-2; Temple v. Hammock, 52 Miss. 360; Smokey v. Johnson, 4 So. 788-9; State v. Spengler, 74 Miss. 133, 20 So. 879-80; McCorkle v. I.C.R.R. Co., 57 So. 419; Evans v. Clark, 24 Miss. 532; Southern Ry. Co. v. Jackson, 49 So. 738.
It is submitted that the error, if any, in granting the peremptory instructions cannot be considered by this court.
Love v. Wilson, No. 31134.
A private action, either at law or in equity, will not lie, unless the plaintiff has sustained some special damage.
Green v. Lake, 54 Miss. 450-545; 43 C.J. 1139; Metz v. Asheville, 22 L.R.A. (N.S.) 940; Hines v. City of Rocky Mount, L.R.A. 1915C, 751.
In support of the contention that a municipality of this state, in the construction and maintenance of a sewerage system, discharges a public function, or, otherwise stated, exercises a governmental function, attention is directed to Sections 2396 and 2414 of the Code of 1930, which is the same law as that theretofore in force. By the former section a municipality is empowered to make regulations to secure the general health of the municipality, and to prevent, remove and abate nuisances, whereas, by the latter section, it is given power to exercise full jurisdiction in the matter of sewers and construct the same.
Hartman v. May, 151 So. 736; McLeod v. State, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161; Stephens v. Drainage District, 123 Miss. 884.
If a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents and employees, it necessarily follows that a municipal corporation, in the discharge of such a public function, is not liable for such negligence.
City of Hattiesburg v. Gigor, 118 Miss. 676; 19 R.C.L. 1117.
In actions against municipalities by third parties for the negligence of its firemen, the municipality has been held not liable for the reason that in maintaining and operating a fire department the city was performing a governmental function.
Cunningham v. City of Seattle, 42 Wn. 134, 84 P. 641, 4 L.R.A. (N.S.) 629, 7 Ann. Cas. 805; Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62; Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann. Cas. 507.
A municipality, in the exercise of its police powers, acts in a governmental and not in a private capacity, and is not liable for torts committed by its officers and agents in attempting to carry out and enforce its ordinances and other regulations adopted by it in pursuance of such powers.
Bradley v. Jackson, 119 So. 811.
The construction, maintenance and operation of a fire department is for the protection of property of the inhabitants of a municipality. The construction, maintenance and operation of a sewerage system is for the protection of the health of the inhabitants of a municipality. If there is a difference in the power of granted and exercised, it is merely one of degree and not of kind. Surely health is more important than property.
Appellants, husband and wife, brought this action in the circuit court of Sunflower county against appellee to recover damages for injuries to their health and comfort and that of their family, and to their land, including the income therefrom, alleged to have been caused by the improper and negligent maintenance by appellee of its septic tank connected with its sewerage system. At the conclusion of the evidence, the court directed a verdict for appellee; judgment was accordingly entered, from which judgment appellants prosecute this appeal.
Drew is a town of about one thousand three hundred inhabitants. A good many years ago it constructed and put into operation a sewerage system for its inhabitants. A necessary part of the system was a septic tank located near the outskirts of the town; into this tank all the sewerage was emptied and treated, and from the tank it emptied through an underground passage into Blue Lake, something like fifty feet away.
The evidence tended to show that, if the septic tank had been maintained as originally constructed, it would have been harmless to the health, comfort, and property rights of those around it. The evidence for the appellants, which for the purposes of considering the propriety of the directed verdict for the town is to be taken as true, showed that beginning about the year 1930 the town permitted the septic tank to fall into disrepair to such an extent that the sewerage overflowed it and ran out over a considerable area of land and into Blue Lake. This condition has continued since. The result is that the overflowing sewerage not only contaminates the surrounding land but the waters of the lake as well, and emits most offensive and nauseating odors. Because of these odors appellants and their children have suffered great discomfort and have been made sick, and tenants and laborers on their farm, on which the septic tank and Blue Lake, in part, are situated, refuse to plant, cultivate, and gather crops on a substantial part of the land around the tank; thereby the income from their farm is reduced.
The farm of appellants consists of thirty-four acres; the title is in appellant Mrs. Hodges and not her husband. Her predecessor in title, about the time the sewerage system was established, granted the town an easement to erect and maintain the septic tank on this land. Appellants' home is situated on this land south of, and between three hundred and four hundred feet from, the septic tank. Appellants and about seventy other residents in the area around the septic tank petitioned the town authorities to repair the tank so as to remedy its defective condition. No action was taken in response to the petition. The evidence showed that, although the title to the land and to the home was in the wife, the husband had complete charge of it; he owned and collected all the rents from the crops thereon, and financed the farming operations of the tenants and laborers out of his own funds; he paid the taxes out of his own means; and suffered any loss that occurred from the operation of the farm. He controlled the place for himself and his family and not as agent for his wife. He paid all the living expenses for the family. In other words, the beneficial interest in the land belonged to him for the use and support of himself and his wife and children.
With its plea the town gave notice that on the trial it would insist that the case be dismissed upon the ground that there was a misjoinder of plaintiffs — that their interest was not common but independent and distinct; therefore they could not maintain a joint action. On the trial, it developed that the title to the land, as above stated, was in the wife. Objection was thereupon made by the town on the ground stated, and the court sustained the objection, to which action of the court appellants excepted. In obedience to the ruling, appellants dismissed the cause as to the wife and left the husband as the sole plaintiff. That action of the court is assigned and argued as error.
The reasons for not permitting a misjoinder of plaintiffs are to avoid the trial of more than one suit at a time; to promote certainty and clarity of issues; to prevent confusion in the evidence and certainty of judgment to be rendered; in different words, to provide for the efficient and effective administration of justice.
Although the legal title to the land is in the wife, under the evidence the entire beneficial interest belongs to the husband for the benefit of himself, his wife, and his children. The offensive odors affect them all alike; the injury to the productiveness of the land is an injury to both. They live together in their home located on the land. The cause of the injury to the husband and wife is common to both. It is difficult to conceive how separate and distinct judgments could be rendered in favor of each. It is true that separate and distinct causes of action of the husband and wife cannot be joined in one action by both of them, 1 C.J., p. 1096, section 260, but, where the issues are the same and the recovery goes to both of them, or to one for the benefit of both, there is only one cause.
It is now generally held by the courts that lawful possession of land, although unaccompanied by title, is sufficient to support an action for damages for interference with the lawful enjoyment of the premises by the person in possession. A lessee is entitled to recover damages sustained by him during his tenancy from the maintenance of a nuisance which affects his enjoyment and use of the premises. A person in possession of the land may recover damages for injuries caused by a nuisance to the health or person of himself or other occupants who are members of his family. 46 C.J. 738, sections 318 1/3, 318 1/4.
Sections 605 and 606, Code of 1930, authorize in proper cases the rendition of as many separate verdicts and judgments as may be necessary to the adjustment of the rights of several parties to the action. See Aven v. Singleton, 132 Miss. 256, 96 So. 165, construing these two sections of the Code. We do not mean to hold that they enlarge the common-law rule against misjoinders of plaintiffs, but that they do enlarge the rule in reference to varying verdicts and judgments in the same cause. We are of opinion that there was no misjoinder in this case, and therefore the court erred in requiring a dismissal as to one of the appellants.
The town contends that appellants are not in a position to challenge the propriety of the directed verdict, for the reason that the giving of the instruction was not excepted to in the record, nor a motion for a new trial made assigning as a ground the giving of the instruction. The town refers to decisions to support its contention rendered prior to the adoption of section 586, Code of 1930, and rule 6 of this court. Under the statute and the rule, it is no longer necessary to except to the giving or refusing of instructions during the progress of the trial, nor make their giving or refusal the ground of a motion for a new trial. The statute provides in unmistakable terms that the clerk shall mark all instructions asked by either party or given by the court as being given or refused, as the case may be, and all instructions so marked shall be a part of the record on appeal without bill of exceptions; and section 3 of the rule provides that the right of review in the Supreme Court of any ruling of the trial court shall not depend in any wise upon appellant having made a motion for a new trial. Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257.
The town seeks to justify the directed verdict on two grounds: First, that the evidence failed to show that appellants suffered any peculiar or special damage on account of the maintenance of the nuisance not common to the general public; second, that in the construction and maintenance of the waterworks system, including the septic tank, the town was in the exercise of one of its police powers, that of conserving the public health, which is a governmental function, in the exercise of which, although wrongful, the town is not liable for damage to property.
We will consider those contentions in the order stated. We think there is little to be said about the first. It is the law, as contended by the town, that it was incumbent on appellants to show some special and different damage not common to the general public. Appellants' evidence, if true, established that fact. As to the second ground, section 17 of the Constitution is a complete answer. It prohibits both the taking or damaging of private property for public use, 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. 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 Thompson v. Winona, supra, the damage was caused by the city discharging its sewerage into a stream flowing through the plaintiff's land. The city was held liable under this constitutional provision. In the Porterfield Case the city permitted a drain sewer to become obstructed, impounding the rainfall, and damaging plaintiff's property. The city was held liable.
The town relied largely on City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846. In that case one of the city firemen was injured through the negligence of the fire chief. It was an injury to the person, not to property. The cause of injury was a tort by the fire chief. The court held there was no liability on the part of the city because in the maintenance and operation of its fire department it was exercising a governmental function. It is manifest that section 17 of the Constitution had no application; by its plain terms it applies only to the taking or damaging of property. It has nothing to do with torts causing injury to persons.
Reversed and remanded.