Opinion
No. 25631.
October 13, 1936.
(Syllabus.)
1. Municipal Corporations — Liability for Damages From Nuisance Caused by Manner of Maintaining Sewer.
The manner of maintenance by a city of a sewer may constitute a nuisance and where it does so, immunity from damages does not ensue under the theory that the city is engaged in a governmental function.
2. Nuisance — Personal Inconvenience, Annoyance, and Discomfort to Occupant of Real Estate as Distinct Element of Damage.
The personal inconvenience, annoyance, and discomfort to the occupant of real estate caused by the maintenance by another of a temporary nuisance in the immediate vicinity of said real estate is a separate and distinct element of damage from that of the depreciation of the usable or rental value of the real estate occupied; the measure of such damages being reasonable compensation for injury.
Appeal from District Court, Oklahoma County; W.G. Long, Assigned Judge.
Action by George M. Myers against the City of Oklahoma City. Judgment for plaintiff, and defendant appeals. Affirmed.
Harlan Deupree, Municipal Counselor, and P.E. Gumm, Asst. Municipal Counselor, for plaintiff in error.
Dabney, Lawson, Rakestraw Benson, for defendant in error.
George M. Myers, as plaintiff, sued the city of Oklahoma City, as defendant, in the district court of Oklahoma county to recover damages arising from the negligent operation of the city's sewer system. The cause was tried to a jury, and a verdict was rendered in favor of plaintiff for $800. From a judgment thereon, defendant has appealed.
Plaintiff was the owner and occupant of a tract of land situated northeast of the city of Oklahoma City and adjacent to the North Canadian river. The city of Oklahoma City emptied its sewage into said river. It appears that either by the negligent operation of the sewage system or by improperly treating the sewage there was created foul, noisome, and noxious odors in the vicinity of plaintiff's residence and farm which caused discomfort, annoyance, and inconvenience to plaintiff and his family.
An examination of the briefs discloses that the identical propositions relied upon by defendant herein were this day determined in City of Oklahoma City v. Eylar, 177 Okla. 616, 61 P.2d 649, and the opinion of the court in that case is hereby adopted as controlling of the issues involved herein.
The judgment of the trial court is affirmed.
McNEILL, C. J., and BAYLESS, BUSBY, WELCH, PHELPS, and CORN, JJ., concur. RILEY and GIBSON, JJ., dissent.