Meeker v. City of Kerrville

POPE, Justice. This is an appeal from an instructed verdict against appellants, Burton Meeker and Franklin W. Meeker, who sued for damages to their property caused by the erection and operation of a sewer plant by the City of Kerrville. Appellants undertook to prove that the noxious odors from the plant damaged their adjoining 125 acres of land which is potential suburban residence property. The suit' is hot grounded on negligence. See Bennett v. Brown County Water Imp. Dist. No. 1, Tex., 272 S.W.2d 498; Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70; Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565; Bexar Metropolitan Water District v. Kuntscher, Tex.Civ.App., 274 S.W.2d 121. Appellants sued on the theory that the defendant City is operating a nuisance. Brewster v. City of Forney, 223 S.W. 175, by the Commission of Appeals, held that a municipality may be liable in damages by reason of the operation of a sewage, plant which constituted a nuisance. Other authorities are to the same effect. City of Houston v. Shilling, Tex.Civ.App., 235 S.W.2d 929, affirmed on different grounds, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935; City of Ft. Worth v. Crawford, 64 Tex. 202; Id., 74 Tex. 404, 12 S.W. 52; City of Ft. Worth v. Wiggins, Tex.Com. App., 5 S.W.2d 761; Bates v. City of Houston, Tex.Civ.App., 189 S.W.2d 17; City of Temple v. Mitchell, Tex.Civ.App., 180 S.W.2d 959; 30 Tex.Jur., Municipal Corporations, § 296. Since appellee has filed no brief, we shall accept as true all facts stated by appellants in their brief and shall render judgment in conformity with those facts. Rule 419, Texas Rules of Civil Procedure; Van Pelt v. McCabe, Tex.Civ.App., 236 S.W.2d 685. On the basis of the facts asserted in appellants’ brief, the intensity and frequency of the odors emanating from the sewage plant substantially damaged the appellants’ property. The case should have'been submitted to the jury. The judgment is reversed and the cause remanded.