Central Consumers Co. v. Pinkert

122 Ky. 720

• Court: Court of Appeals of Kentucky
• Decided: April 15, 1906
• Status: Published

Opinion

OpiNioN op the Court by

Judge Settle.

This action was originally brought by appellee against the S;enn & Ackerman Brewing Company, hut by amended petition the appellant, Central Consumers’ Company, its vendee and successor, was made defendant, and the action thereafter1 abated as to the original defendant. The action as set forth by the petition and amendments wlas one to recover for alleged injury to- appellee’s- house and lot, situated on "Walnut street, west of Eighteenth street, ini the city of Louisville, by the escaping of water thereon from a large tank situated on appellant’s lot, adjoining that of appellee, whereby her yard, the walls of her house-, and the walkway leading to and around same, were made and kept damp, to the injury of the property. It was in substance averred in the petition, as amended, that the water tank Was supplied with water from- two wells, also situated on appellant’s lot, only a few feet from the tank, the water being pumped by machinery and run through pipes from the wells into- the tank, which rested on and was elevated by a supporting frame, situated so near and against appellee’s lot and by the side of her house as to almost cause the tank to overhang her lot; at any rate, so near as to enable the water almost constantly leaking, overflowing, or otherwise escaping from it, ■ and the pipes connecting it with the wells, to fall upon or run into her lot, and that the dampness thus produced injured her house-, and the loud and unusual noise made-, day and night, by the pumping of -water into the tank, together with the damp condition of the lot and building, caused such annoyance and discomfort to, and so threatened the health of, the inmates of her house and lot as to make them remove, and at times leave the house vacant, and at times prevent her from renting the property. It further appears from the petition that the wells were drilled and tank erected, a year or more before they became the property of appellant, by the Senn & Ackerman Brewing Company, for supplying with water a brewery two squares distant it wias operating, and of which appellant also became owner, and that the latter had been operating the brewery and using the wells and water tank for about two years before it was sued by appellee. The answer of appellant specifically denied all affiffirmative matter contained in the petition, as amended, and interposed the further defense that, if there was any injury to appel-lee’s house and lot from the wells and tank, it was not chargeable to it, as they were made and erected by the Senn & Ackerman Brewing Company, its vendor, and, in addition, that it could not in any event be made liable in this case for the damage sustained to appellee’s property by its operation of the pump or use of the wells and tank, as. it had received neither complaint nor notice from appellee that her property had been, or was being, injured by its maintenance and use of the wells and tank, or been asked by her to1 discontinue their use or abate the nuisance. The trial in the lower court resulted in a verdict and judgment in appellee’s favor for $500. Appellant, having been refused a new trial, now asks of this court a reversal of the judgment in question.

Our reading of the record satisfies us that the peremptory instructions asked by appellant at the conclusion of appellee’s evidence1, and again after all the evidence was introduced, was properly refused by the trial judge; for there was. considerable evidence tending to show that appellee’s house and lot had been injured in the manner, if not to the .full extent, claimed in the petition and that such injury occurred and resulted during the two- years of appellant’s ownership and operation of the pumping plant. It is therefore safe to say that the evidence established her right to recover some amount in damages for the injury sustained to her property. It was the province of the jury to determine the amount, and in view of the fact that some of the witnesses fixed the damage as high ar $1,500, though the weight of the testimony placed it at a far smaller sum, we are not prepared to say that the amount awarded her was excessive. It was, however, liberal.

It is insisted for appellant that the jury was improperly instructed as to the measure of damages., as they were in substance instructed by the court, if they found for appellee, that the measure of recovery was the diminution, if any, in the fair market value of her property caused by the injury complained of, whereas it is appellant’s claim that she could only’' recover for loss of rents during such time, if any, as her property was rendered tenantless by the maintenance and use of the pump and water tank by appellant, or for the diminution of its. rental value caused thereby. We think the. jury were properly instructed as to the measure of damages. Fairly construed, the petition does not seek a recovery for loss of rents, or diminution of the rental value of appellee’s property, hut for the alleged permanent injury to same; the diminution in the rental value being but an incident of the; permanent injury to the property. If she were seeking to recover for the diminution of its rental value alone, any future or additional injury to her property, and consequent diminution in its rental value, that might result from appellant’s continued use of the pump' and water tank, would entitle her to sue and recover of appellant again, and as often as such additional injury might occur. As it is apparent from the evidence found in the record that the wells, water tank, and pumping apparatus, on the lot «adjoining that of appellee, are of a permanent character, and will doubtless continue to be used, probably with like injurious results to appellee’s property, it would seem eminently proper that all the damages claimable should be recovered in one action. In Wood’s Law of Nuisances, 1005, it is said: “So, too, where a nuisance is of such a character that its continuance is necessarily an injury, and it is of a permanent character, so that it will continue without change from any cause but human labor, it is held that the damage is original, and may be at once fully compensated.” In 4 Sutherland on Damages (3d Ed.), section 1046, it is said: “The apparent discrepancy in the American cases' on this subject may, perhaps, be reduced by supposing that where the nuisance consists of a structure of a permanent nature, and intended by defendant to be so, or of a use or invasion of the plaintiff’s property or a deprivation of some benefit appurtenant to it for an indefinitely long period in the future, the injured party has an option to- complain of it as a permanent injury, and recover damages for the whole time, estimating its duration according to the defendant’s purpose in' creating or continuing it, or to treat it as a temporary wrong, to he compensated for while it continues; that is, until the act complained of becomes rightful by grant or condemnation of property, or ceases by abatement. The recovery of damages on a declaration alleging the permanency of the nuisance, on principle, would estop the plaintiff, not only from recovering future damages, but also from taking any steps to abate the nuisance during the period for which damages had been recovered. This is apparently the law in Kentucky, Illinois, Indiana, Missouri, Ohio, and G-eorgia. * * * While no infallible test can be applied to enable us to determine whether a structure is permanent or not, inasmuch as nothing is absolutely permanent, yet) when a structure is practically determined to be a permanent one, its permanency, if it is a nuisance and will necessarily result in damages, will make the damages, original.” 4 Sutherland on Damages (3d Ed.), pp. 3044, 3045, section 1043. This view of the matter, it seems to us, should not be objected to by .appellant, and may be said to be favored by the law, which frowns upon a, multiplicity of actions. Besides!, .having sued for the permanent injury to her property, appellee must be understood as having elected to recover all of the damages she had sustained, or might thereafter sustain, from the maintenance of appellant’s water tank, pipes, and' pumping apparatus, in one action.

It is contended' by counsel for appellant that as the pumping plant was erected by its vendor, Senn & Ackerman Brewing Company, and liad been operated by that company for a year or more before it became the property of appellant, the latter can not be held liable in damages for an injury to appellee’s house and lot resulting from its continued operation, in the absence of a previous complaint thereof or request to discontinue its use. It is the general rule that if one who has erected a nuisance on his land conveys the land to a purchaser, who continues the nuisance, the vendor remains liable, and the purchaser is not liable, unless, on complaint or request, he does not remove it. A. & E. Ency. of Law, Vol. 16, p. 980; Wood’s Law of Nuisances, 968; Ray v. Sellers, 1 Duv., 254; West v. L., C. & L. R. R. Co., 8 Bush, 404. But the doctrine is also recognized that the continuer of the nuisance is liable without a request to remove it, if by some positive act he adopts it, or the nuisance results from the use, rather than from the erection itself. Wood’s Law of Nuisances, 969; Whitenach v. Phila. & R. R. Co. (O. C.), 57 Fed., 901; Morris Canal Co. v. Reyessou, 27 N. J. Law, 457. The injury to appellee’s property complained of was, we think, such as resulted from appellant’s use of its pumping plant, and not from its erection. Therfore, under the rule last stated, no complaint to it, or notice from appellee to abate the nuisance, was necessary before the institution of the action. We do not regard Ray v. Sellers and West v. L., C. & L. R. R. Co., supra, cited by appellant’s counsel, as in conflict with the conclusion 'herein expressed. They belong- to the class of cases embraced by the first or general rule above indicated. In the Ray case the defendant was sued for creating a nuisance by depositing a dead horse near the plaintiff’s house. The defense was that the place where the dead horse was deposited had for a long time been nsed for that purpose without' objection from plaintiff. In passing on the question of defendant’s liability, the court said: “But if during several years before the act complained of plaintiff permitted the place in question to be used by the neighbors generally as a common receptacle for carcasses, the defendant had a right to infer that she consented to such use of it by him, and we believe it would be unjust to hold him liable for damages, unless she gave him some notice, or request, informing Mm of her dissent, of which there was neither proof nor allegation. ” In the West case, a railroad company had erected on the plaintiffs land an embankment and culvert, and, the latter being insufficient to carry off the water, in flood time it was backed upon and overflowed plaintiff’s land. The defendant railroad company, a remote vendee of the company that had created the nuisance, was sued by the plaintiff for the damages thereby sustained, and the court held it not liable, in the absence of notice requiring it to enlarge the culvert or otherwise abate the nuisance. This decision of the question involved was undoubtedly correct. The defendant’s continued use of the embankment in the condition in which it acquired title to¡ it did -not cause the injury to plaintiff’s land, for such injury would have resulted without any use of it by defendant. The injury was caused by the insufficient culvert, which was constructed by the: former owner of the railroad track and right of way, and therefore resulted wholly from the -creation of the nuisance, and in no sense from defendant’s use of the right of way; hence notice to- the defendant was indispensably necessary to make it liable. The case at bar rests, as we have attempted to show, on a wholly different basis, and is unlike those supra.

Other alleged errors are presented by appellant, but, as they were not prejudicial, and are not seriously relied on, wle will not discuss them. The instructions of the trial judge seem to be free from error.

Finding no sufficient reason for reversing the judgment complained of, it is affirmed.