Messer v. City of Dickinson

This is an action for damages against the city of Dickinson for maintaining a nuisance. The plaintiff is the owner of a building used as a second-class hotel. It is located on the south side of the city near the Heart River. The main sewer of the city empties into the Heart River at a point downstream approximately 600 feet east by north of plaintiff's building. The plaintiff is not a riparian owner. The Heart River is a non-navigable stream. The plaintiff claims that since December, 1932, offensive and nauseating odors, stenches, and gases have been generated by and because of the pollution of the stream resulting from the sewage emptied therein by the city. It is claimed that in the summer time and when the wind is in an easterly direction or the air is calm, the offensiveness of the odors is so intense that guests in the plaintiff's hotel are unable to sleep and it is impossible to serve meals at the hotel. On December 13, 1937, the plaintiff filed her claim for damages with the city. Payment thereof has been refused. The plaintiff seeks damages in the sum of $4,000 and interest. The defendant pleads that it has established and does operate a sewerage system as a governmental function and pursuant to specific statutory authorization. It relies upon § 3697, ND Comp. Laws 1913, which authorizes cities to establish and maintain sewers and upon § 7231, ND Comp. Laws 1913, which provides, "nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." It appears that subsequent to the institution of this suit and prior to the trial thereof, a sewage disposal plant was installed and is in operation. The plant now renders the sewage free from the properties which resulted in the situation that is the basis of the suit. Thus, the nuisance, if any, has now been abated. The trial court denied an application for an injunction but awarded damages for injury prior to abatement in the sum of $1,152 for which judgment was entered. The defendant demurred to the complaint, the trial court overruled the demurrer, the defendant then answered and the case was tried on the merits. The plaintiff not being a riparian owner, the law pertaining to the *Page 572 rights of riparian owners is not directly applicable to this case. There has been no encroachment upon the plaintiff's property unless the invasion of the air above the premises by the noxious odors and gases be so considered. The complaint clearly attempts to allege the creation and maintenance of a nuisance on the part of the City of Dickinson. The plaintiff so interprets her complaint when she says in her brief, "While the invasion of the air by a putrid odor is a substantial taking of property, nevertheless a reading of the Complaint will show that this is not an action based upon implied contract for taking of property without due process of law or under the eminent domain theory. A reading of the Complaint will show that this is purely a tort action based upon the unlawful interference by the creation of a nuisance on the part of the Defendant with the Plaintiff's business. There is no allegation in the Complaint that Plaintiff's property has been taken without due process of law. The Complaint alleges a nuisance, tortious conduct. And the discussion of eminent domain is not pertinent. Neither is the discussion which follows therefrom as to the riparian ownership." The plaintiff contends that where a municipal corporation creates and maintains a nuisance it is liable for damages to any person suffering special injury therefrom and that such liability exists irrespective of any question of negligence. The defendant on the other hand contends that it is authorized by statute to do the thing complained of in this action and as authority cites § 3697, ND Comp. Laws 1913, which vests in cities the power to establish and maintain a general sewerage system in the manner and under the regulations prescribed by the city council. This section also provides "that any city may empty or discharge its sewerage into any river." The city contends that in emptying its sewage into the Heart River it did so strictly in accordance with specific statutory authority and that it cannot be charged with maintaining a nuisance in so doing. In support of this position, the city cites § 7231, ND Comp. Laws 1913, which states "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." From the foregoing statutes it appears that in performing the acts that *Page 573 are made the basis of this action the city of Dickinson has acted in accordance with statutory authority. Here we have the situation where the legislature has authorized the city of Dickinson by general statute to empty its sewage into the river and has declared that nothing done under authority of statute shall be deemed a nuisance. The action of the city has, according to the contention of the plaintiff, so polluted the air above plaintiff's premises that it has resulted in a diminution of the value of her property. We find the case of Jacobs v. Seattle, 93 Wn. 171, 160 P. 299, LRA 1917B 329, very much in point. In that case, in one cause of action, it was alleged that a garbage incinerator maintained and operated by the city caused a large amount of ashes, cinders, dust, and disagreeable and noxious odors and gases to permeate the atmosphere in the vicinity of the plaintiff's premises to such an extent as to be a menace and danger to the health of the occupants, and injured, lessened and destroyed the value of the property in such a manner as to create a nuisance. The court cited the statute authorizing the installation of plants for garbage disposal and quoted a section of the Washington Code identical with our § 7231, Comp. Laws. The court then held that by virtue of those statutes the maintenance of a garbage incinerator in a proper manner and place would not constitute a nuisance in a legal sense. However, the court also held that recovery could be had upon another cause of action based upon a constitutional inhibition against the taking or damaging of property without just compensation. In Joyce on Nuisances, § 69, it is said that, "The power of the legislature is here recognized as omnipotent within constitutional limits, while it may legalize an act which might otherwise be a nuisance, it cannot authorize the taking of private property for public use without just compensation. And the rule may be stated to be that where one has the sanction of the state for what he does unless he commits a fault in the manner of doing it, he is completely justified, provided the legislature has the constitutional power to act. And the legislature may, except so far as it may be limited by constitutional restrictions, when deemed necessary for the public good, permit or require that to be done which would, on common law principles, and without the statute, be deemed a nuisance. And it is a general rule that where an act is made *Page 574 lawful by legislative sanction, annoyances in connection therewith must be borne by the individual subject to this qualification that the act must be done without negligence or unnecessary disturbance, by the one doing it, of the rights of others." The plaintiff cites People v. Reedley, 66 Cal.App. 409,226 P. 408, as authority for the proposition that an act specifically authorized by statute may be treated as a nuisance by the courts despite the fact that the statute says that "nothing which is done or maintained under the express authority of a statute shall be deemed a nuisance." Civil Code of Cal. § 3482. In that case the court had under consideration an application to enjoin the city of Reedley from discharging sewage into a river. It appears that the city had a permit, to so discharge sewage, issued by the State Board of Health under statutory authority. The court held that this permit was not a conclusive or absolute defense to an action to abate what was alleged to be a public nuisance resulting from the disposal of the city's sewage. The court denied the city's contention upon the ground that the power of the court to abate nuisances was found in the Constitution and could not be eliminated or abridged by statute. The California Constitution (Art. 6, § 5), vests in the court, power to abate nuisances. Our Constitution is wholly silent with regard to this subject. Neither constitutional nor inherent rights of courts of equity to abate nuisances are involved on this appeal. The only question before us is the right of the plaintiff to maintain a suit for damages. The supreme court of California in Pasadena v. Stimson, 91 Cal. 238, 27 P. 604, had before it the question of the right of a municipality to acquire by eminent domain property over which to lay a sewer. One of the grounds for resisting the acquisition was that the proposed sewer would be a nuisance injuriously affecting private rights. In rejecting this contention, the court had this to say, "A sewer in the neighborhood of dwellings may be an evil, but it is evident that the legislature regards it as a necessary evil, since it allows private property to be taken for the construction of sewers. Sewers are in fact a necessary evil; but when they are planned and constructed with reasonable regard to the results of sanitary teachings they are authorized by statute, and `nothing which is done or maintained under the express authority *Page 575 of a statute can be deemed a nuisance.' Civil Code, § 3482. In short, the plaintiff, being a city with sewage to dispose of, and having a sewer farm to which it has apparently a right to conduct it, has necessarily the right to construct such a sewer as the statute (Code Civ. Proc. § 1238) contemplates, and such a sewer cannot be a nuisance in the strict sense of the term." In Northern Transp. Co. v. Chicago, 99 U.S. 635, 25 L ed 336, the Supreme Court of the United States said, "That cannot be a nuisance, such as to give a common-law right of action, which the law authorizes. We refer to an action at common law such as this is. A legislature may and often does authorize and even direct acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it. If this were not so, the suffering party would be entitled to repeated actions until an abatement of the erections would be enforced, or perhaps he might restrain them by injunction." Among the cases sustaining the general proposition that courts will not hold conduct to be a nuisance where it is authorized by legislative enactment are the following: Law v. Spartanburg,148 S.C. 229, 146 S.E. 12; Frazer v. Chicago, 186 Ill. 480, 57 N.E. 1055, 51 LRA 306, 78 Am St Rep 296; Murtha v. Lovewell, 166 Mass. 391, 44 NE 347, 55 Am St Rep 410; Levin v. Goodwin, 191 Mass. 341, 77 NE 718, 114 Am St Rep 616; Pine City v. Munch, 42 Minn. 342, 44 NW 197, 6 LRA 763; Hinchman v. Paterson Horse R. Co. 17 NJ Eq 75, 86 Am Dec 252; Cogswell v. New York, N.H. H.R. Co. 103 N.Y. 10, 8 NE 537, 57 Am Rep 701; also Wood, Negligence, 2d ed. §§ 753-764. The authority of the legislature to define what shall or shall not constitute a nuisance is subject to constitutional limitations. If an act on the part of a municipality is in the nature of a nuisance it may be subject to the constitutional provision that private property cannot be taken or damaged for public use without compensation regardless of *Page 576 what the legislature may have said regarding nuisances. Section 14 of the North Dakota Constitution guarantees compensation to the owner of private property taken or damaged for public use. Mayer v. Studer M. Co. 66 N.D. 190, 262 N.W. 925; Gram Constr. Co. v. Minneapolis, St. P. S. Ste. M.R. Co. 36 N.D. 164, 161 N.W. 732; 20 RCL 388. See also McLaughlin v. Hope, 107 Ark. 442, 155 S.W. 910, 47 LRA(NS) 137; Jacobs v. Seattle, 93 Wn. 171, 160 P. 299, LRA 1917B 329, supra; Riggs v. Springfield, 344 Mo 420, 126 S.W.2d 1144, 122 ALR 1496; Platt Bros. Co. v. Waterbury, 72 Conn. 531,45 A. 154, 48 LRA 691, 77 Am St Rep 335. The law applicable to the recovery for property damaged under the provisions of § 14 of the Constitution is not the law of nuisances. Actions for damages founded on such constitutional provisions are closely related to the law of eminent domain, and recoveries are permitted upon the theory of implied contract. Mayer v. Studer M. Co. supra; King v. Stark County, 67 N.D. 260,271 N.W. 771; Jacobson v. State, 68 N.D. 259, 278 N.W. 652. Each theory of recovery has its own consequent rules and statutes by which are determined such incidental questions as the accrual of the cause of action, the applicable statute of limitations, the admissibility of evidence and the measure of damages. Many states have no legislative declaration regarding nuisances comparable to our § 7231, ND Comp. Laws 1913. Many state Constitutions are silent with reference to the damaging of private property for public use. This accounts for much of the seeming conflict of authority on the question of the right to recover consequential damages for injury to property resulting from acts of a municipality done in accordance with or pursuant to legislative authority. The legislature has power to define and declare what are and what are not nuisances. In this state the legislature has seen fit to declare that an act which it has expressly authorized shall not be deemed a nuisance. It is the duty of the courts to respect that declaration to the limit of the legislature's constitutional power. On the other hand, it is not to be presumed that the legislature intended that the acts so authorized might be performed in an unreasonable or improper manner. It is said in Morse v. Worcester, 139 Mass. 389, 2 N.E. 694, that "when the legislature authorizes *Page 577 a city or town to construct sewers, or to use a natural stream as a sewer, it is not to be assumed that it intends to authorize the city or town so to construct its sewers or so to use the stream as to create a nuisance, unless this is the necessary result of the powers granted. On the contrary, if it is practicable to do the work authorized without creating a nuisance, it is to be presumed that the legislature intended that it should be so done." In Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 6 LRA 763, the court says: "If the legislature expressly authorizes an act which must inevitably result in public injury, what would otherwise be a nuisance may be said to be legalized; but if they authorized an erection which does not necessarily produce such a result, but such result flows from the manner of construction or operation, the legislative license is no defense. In order to justify a nuisance by legislative authority, it must be the natural and probable result of the act authorized, so that it may fairly be said to be covered by the legislation conferring the power." The immunity conferred by the legislature must be strictly construed. The protection of the statute is lost if the authority given is exceeded or is exercised in a negligent or unreasonable manner. 39 Am Jur 485, Nuisances, § 207. The trial court found "That the defendant, in the use and operation of its sewer system during the period aforesaid, cast into the said Heart River an excessive amount of sewage matter, consisting of sewage from toilets and washrooms of residences, office buildings and other buildings, and sewage from other sources in said city, and industrial sewage and waste from creameries and other industrial plants in the city of Dickinson, together with other sewage and waste with improper and insufficient treatment thereof, thereby placing in the stream of said river considerable waste matter, offal and effluent from the sewerage system of said city, including human offal and waste containing germs and bacterial elements from the human body, all of which matter is allowed to and does pollute the stream and stream bed of said Heart River; and such waste matter, effluent and offal from the Defendant's sewer system does at the point of emission therefrom into the said Heart River cause and create and generate gases, stench, and diminishes *Page 578 the oxygen content of the water creating and causing nauseating and offensive odors and stenches." With respect to the amount of damages suffered by the plaintiff, the court found "that by reason of the acts of the defendant aforesaid, the plaintiff has been damaged in the sum of eleven hundred fifty-two dollars ($1,152) during the period of six years prior to the commencement of such action, or prior to March 24, 1939, which sum represents the diminution in rental value of the said premises caused by the acts of the Defendant aforesaid." We have given exhaustive study to the record. It amply sustains the findings of the trial court with respect to the conduct of the defendant and the damages suffered by the plaintiff. There is no specific finding of negligence but the court does find that the defendant cast into the Heart River an excessive amount of sewage that was improperly and insufficiently treated with the result that the rental value of plaintiff's property was decreased in the sum of $1,152. The ultimate question, therefore, is whether the legislative immunity conferred upon cities by authorizing them to empty their sewage into rivers (§ 3697, ND Comp. Laws 1913) and by further providing that nothing done or maintained under express authority of statute can be deemed a nuisance (§ 7231, ND Comp. Laws 1913), protects the defendant against responding in damages under the facts disclosed by this record. It is clearly the rule that the mere naked grant of power to a municipality to do acts which may result in injury if improperly or negligently done does not immunize the municipality against all claims of damages resulting from the exercise of the power. The legislature by its provision with regard to nuisances did not intend to sanction or legalize acts of a municipality resulting in private damage where that damage was not an inherent result of the act performed but flowed from the manner of performance. In this case, the city had legislative authority to empty its sewage into the river but that authority was limited by the duty resting upon the city to exercise its authority in a reasonable manner and to take all reasonable precautions against damaging private property. By casting its sewage into the river with improper and insufficient treatment for a long period of time, the city was remiss in its duty and it may not now rely upon its legislative immunity to protect it from responding *Page 579 in damages. The issue as to the amount of damages was presented extensively and thoroughly to the trial court. He confined his award to the diminution of the rental value of the premises during the six year period prior to the commencement of the action. The record clearly shows that the sum awarded was reasonable and that the damages were the direct result of the manner in which the defendant operated its sewage disposal system. Affirmed. BURKE and NUESSLE, JJ., concur.