Summary
In City of West Point v. Womack, 178 Miss. 808, 174 So. 241 (1937), cited by appellants, this Court affirmed a damages award to a private citizen for injuries to his property resulting from the city's operation of a sewage ditch in a manner constituting a public nuisance.
Summary of this case from Robinson v. Indianola Mun. Separate Sch. DistOpinion
No. 32673.
May 17, 1937.
1. EASEMENTS.
Right secured by prescription is limited by character and extent of right exercised during prescriptive period.
2. NUISANCE.
City, maintaining and using sewer line and outlet for about fifteen years in connection with open artesian well, which constantly flowed enough water to dilute and carry away sewage without damage or inconvenience to adjacent landowner, acquired no prescriptive right to maintain and use them in such manner as to cause him damage after well ceased to flow and volume of sewage was largely increased because of many new residences being constructed and connected with sewer line.
APPEAL from the circuit court of Clay county. Hon. W.W. MAGRUDER, Judge.
Thos. J. Tubb, of West Point, for appellant.
It is our position that the law is when a body politic acquires by grant or condemnation land for a specific public purpose or use or the right to use the land for such specific public purpose, that the consideration for the grant or right or the award by the eminent domain court, is full and complete payment and award for not only the right but for all damages to the land on which it is acquired, present and future, resulting from the use of the right.
If our position is correct then under the facts of this case the appellant by its grant not only acquired the right to run its sewer in and upon Block 149 and empty the sewage therefrom into the ditch in question, but to empty into the ditch as much sewage in volume as could be emitted by an eight inch sewer, the size sewer originally constructed, and to operate said sewer as an open sewer as it was originally constructed, and the appellant would not be liable for any damage to Block 149 because thereof; and it would not be the duty of the appellant to do anything or to take any measures to lessen the offensiveness of the odors therefrom. The only duty the appellant would owe would be to maintain the sewer properly as an open mouth sewer. We concede that the appellant owes the duty to properly maintain the sewer as originally constructed and that it would be liable for such damages as resulted from its negligence in such maintenance, i.e., for permitting breaks in the sewer to remain an unreasonable time after notice or for permitting the mouth of the sewer or the ditch into which it flows to become stopped so as to materially impede the flow of sewage and remain for an unreasonable time, after notice, if such increased the offensiveness of the odors.
The damages awarded in a condemnation proceeding for the taking of private property for public use, is not only damages for taking the property, but is an award for all damages present and future resulting as a consequence of the taking and use. And where private property is acquired by grant for public use, it is conclusively presumed that the owner has demanded and received full compensation for all damages present and future resulting as a consequence of the use.
Y. M.V.R.R. Co. v. Davis, 73 Miss. 678, 19 So. 487; Sullivan v. Supervisors, 58 Miss. 790; Board v. Harkelroads, 62 Miss. 807; Richardson v. Board, 68 Miss. 539, 9 So. 351; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Y. M.V.R.R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459; Braham v. Meridian Home Tel. Co., 97 Miss. 326, 52 So. 485; 43 C.J. 1147, 1149; 10 R.C.L. 155; Moore v. Swamp Dredging Co., Inc., 88 So. 522; Canton v. Cotton Warehouse Co., 84 Miss. 268, 36 So. 266; 65 L.R.A. 561; Railroad v. Brown, 64 Miss. 479, 1 So. 637; Railroad v. Stingily, 111 Miss. 237, 71 So. 376; City of Greenwood v. Guinn, 121 So. 160.
It must be borne in mind that the damages here claimed are to the property or land all of which was owned by the owner from whom the appellant acquired its right by grant at the time the right was acquired and that appellant's right was excepted in the deed by which appellee acquired his land and that the original right, contemplated, granted and acquired was that of emptying the sewage from an eight inch sewer into the ditch upon the land here in question. The original construction and operation twenty years or more ago was an open mouth sewer, which is the same construction and operation now. There is not involved here damages to land not a part of the land on which the right was originally acquired.
Harvey v. I.C.R.R. Co., 111 Miss. 835, 72 So. 273.
This court in the case of Thompson v. City of Winona, 96 Miss. 591, 51 So. 129, held that the emptying of sewage in a ditch by a municipality was a public use and within the provisions of section 17 of the Constitution.
In Sturges v. City of Meridian, 95 Miss. 35, 48 So. 621, this court held the city had the right to maintain a drain, "as originally constructed" where the right had been acquired by prescription.
B.H. Loving and Frank A. Critz, of West Point, for appellee.
We take the position in this case that the trial court was correct in the rulings upon the instructions in question, for the reason, first, that appellant acquired no right to maintain a nuisance at the point in question by the Lagrone deed, nor by any prescriptive right that it might have obtained, and second, because appellant was negligent in the operation and maintenance of its sewage line and outlet at the point in question, because it failed to handle the sewage disposal there in a reasonable manner so as to prevent the same from being a nuisance.
No right to maintain and operate the nuisance was acquired by the Lagrone deed or by prescription.
State Hwy. Dept. v. Duckworth, 172 So. 148.
The action of appellant in maintaining and operating the nuisance in question to the damage of plaintiff without any grant, or authority so to do, is clearly tortious, and appellant is liable to appellee therefor under section 17 of the Constitution, and under previous decisions of this court.
Hodges v. Town of Drew, 159 So. 298.
A municipality has no right to maintain a nuisance any more than an individual has.
Crawford v. Town of D'Lo, 80 So. 377; Vicksburg v. Richardson, 90 Miss. 1, 42 So. 134.
Rights gained by prescription are limited in extent by the previous enjoyment and cannot be varied to the injury of others.
Harvey v. I.C.R.R. Co., 111 Miss. 835, 72 So. 273; Sturgess v. City of Meridian, 95 Miss. 35, 48 So. 620; Gould on Waters, sec. 342.
This court held, specifically, in the Harvey case that the easement acquired by prescription could not be enlarged by the construction of more culverts, or in doubling the capacity of those in use, and that the right to discharge the water through the culverts "must be limited by the character and extent of the right exercised during the prescriptive period."
Miss. Mills Co. v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546.
Not a single one of the cases cited by appellant involve the creation and the maintenance of a nuisance upon the property which is being used for public purposes, to the damage of an adjacent property owner, and the creation and maintenance of such nuisance is in its nature unlawful, and is an improper use by an owner of his land, unless the right so to do had been legally acquired by deed or contract or prescription, which is not the situation in this case.
Appellant was negligent in the operation of said sewage system in creating and maintaining said nuisance.
Hodges v. Town of Drew, 159 So. 298; Vicksburg v. Richardson, 90 Miss. 1; 6 McQuillin on Municipal Corporations, page 5535, sec. 2693; Tate v. City of St. Paul, 56 Minn. 527, 45 Am. St. Rep. 501.
Appellant created the nuisance in question by negligently failing to adopt reasonable and standard methods to meet changed conditions in its operation of its sewerage system, when such changed conditions caused the nuisance to come into being, and it is liable to appellee, and as a matter of fact, the damages awarded appellee are not adequate to compensate him for the injuries suffered, but of course this question is not here raised as we have not cross appealed.
Argued orally by Thos. J. Tubb, for appellant.
Appellee instituted this suit in the circuit court of Clay county against the City of West Point, seeking to recover damages alleged to have been sustained by him by reason of the emptying of sewage from an open mouth sewer onto the land of appellee and into an open ditch or creek flowing through and adjacent to lands of the appellee, which constitute his homestead. There was a verdict and judgment in favor of appellee for $500, from which the city prosecuted this appeal.
In the year 1915, the owner of block 149 in the City of West Point, which block contained about 49 acres, by warranty deed, conveyed to the City of West Point a strip of land through said block 30 feet wide and 1,030 feet long, the center line of this 30-foot strip being described as the center of a creek flowing the entire length of the strip. By mesne conveyances, the title to the said block 149 passed to the appellee in the year 1922, the deed to appellee containing an exception of "the right of way for sewage through said land of the City of West Point."
Shortly after it acquired this strip of land in 1915, the appellant constructed an 8-inch sewer line into the said block 149 with an open outlet emptying into the said ditch about 3 feet north of the line of the strip of land which it had acquired by purchase. At that time, and at all times thereafter until about 1930, there was an open artesian well flowing into this ditch at or near the mouth of the sewer, which caused the sewage to be diluted and carried away, so that there was no resulting damages or inconvenience to the adjacent property owner from offensive odors. About the year 1929 or 1930, there were many new residences constructed and connected with this sewer line, thereby greatly increasing the volume of sewage passing out of the sewer, and also about that time the open flowing artesian well, which had previously flowed into this ditch by the outlet of the sewer, failed entirely, and thereafter, according to the evidence, the sewage accumulating in the ditch from the mouth of the sewer southward became so offensive on account of nauseating odors therefrom, especially in dry weather, as to constitute a public nuisance, and to greatly damage the appellee in the use and enjoyment of his home.
The minutes of the board of mayor and selectmen of the City of West Point bearing upon the question of the purchase of the strip of land in block 149, and the contract for the construction of said sewer line, were offered in evidence. So far as these minutes bear upon the purchase of the land from the then owner, they merely show the appointment of a committee to secure a dumping ground for sewage, an order for the purchase of a strip of land "running from the end of the proposed sewer line north following the sewer line 1,030 feet to the public road, price to be paid $600.00," and the recommendation of the city attorneys that the purchase price be paid upon the delivery of the deed. This deed was a mere conveyance to the city of a fee-simple title to the 30-foot strip of land through the said block, which grant conferred only the right to use the land so acquired for any proper and legitimate purposes, with the limitation that the use of the same should not be of such nature as to unreasonably damage and injure the adjacent landowner or the general public by the creation and maintenance of a nuisance or otherwise. This view was embodied in the several instructions granted the appellee, and particularly in the instruction numbered 8.
It is contended, however, that the city has secured by prescription the right to maintain its sewer outlet as now constructed and used. A right secured by prescription is limited by the character and extent of that exercised during the period of prescription. Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546; Sturges v. City of Meridian, 95 Miss. 35, 48 So. 620. This sewer line and outlet were constructed during the year 1915, and for about fifteen years thereafter were maintained and used in connection with an open artesian well which flowed a constant stream of water of sufficient volume to cause the sewage to be diluted and carried away without causing any damage or inconvenience to the adjacent landowner. The only prescriptive right acquired by the city during that period was the right to maintain and use the sewer in the manner and to the extent exercised for the prescriptive period. The evidence shows that about the year 1929 the artesian well ceased to flow entirely, and about the same time the volume of sewage flowing out of the sewer was largely increased by reason of many new residences being constructed and connected with the sewer line, and immediately thereafter damage and injury to the adjacent landowner became apparent, and proper complaints were registered with the city authorities. The appellant acquired no prescriptive right to maintain and use this sewer and outlet in the manner and to the extent shown to exist at the time of the filing of this suit in the year 1934. We think the judgment of the court below is manifestly correct and should be affirmed.
Affirmed.