City of Port Arthur v. Bowling

551 S.W.2d 155, 1977 Tex. App. LEXIS 2952

• Court: Court of Appeals of Texas
• Decided: May 5, 1977
• Docket: 7924
• Status: Published

Opinions

KEITH, Justice.

City appeals from a judgment based upon jury findings that its maintenance of a sewer line constituted a nuisance amounting to a constitutional damaging of plaintiffs’ property and the jury fixed the amount of damages at $11,800. City has prosecuted the appeal upon four points of error but we do not find it necessary to discuss each since we are of the opinion that the second point, interposing the two-year statute of limitations, is valid and dispositive of the cause. We reverse the judgment of the trial court and now render judgment for City for the reasons now to be stated.¹

On June 26,1975, several weeks after the motion for rehearing in Bowling I had been overruled by this court, and while the application for writ of error was still pending, plaintiffs filed this suit seeking damages. They alleged, in general terms, that City, in the operation of its sanitary sewer system near plaintiffs’ home, permitted noxious gases to escape therefrom; that because of the obnoxious odor, plaintiffs were deprived of the enjoyment of their home; that, because of the escape of hydrogen sulfide gas from the City’s mains, the copper drain waste pipes in plaintiffs’ home were so damaged and injured that sewer water and waste materials emptied into the walls of plaintiffs’ home causing extensive damage “which in turn caused tremendous mental anguish and aggravation.” A further allegation was made that the hydrogen sulfide gas was present in “greater concentrations than normal, causing additional personal injuries to the Plaintiffs.”

The jury found that because of the odors escaping from defendant’s sewer line near plaintiffs’ property there had been both a “taking” and a “damaging” thereof which caused a diminution in the market value of such property in the sum of $11,800. Other issues found that the operation of the sewer line “constitutes a nuisance” as defined in the charge; that the nuisance was a proximate cause of plaintiffs’ damage; that the nuisance was not permanent but temporary. Other answers established that the nuisance “was created before June 26, 1973”, and in answer to an inquiry as to when the odors and fumes from the defendant’s sewer line constituted a nuisance, the jury responded “on 1967”. The jury did not find defendant guilty of negligence but did. find that the difference in rental value immediately prior to and immediately after the creation of the nuisance up to the time of trial was $3,240.

The qnasi-tort of which plaintiffs complained in the trial court was one arising under the doctrine of inverse condemnation or the so-called “constitutional takifig”² In the seminal case of City of Abilene v. Downs, 367 S.W.2d 153, 158 (Tex.1963), the Court was “called upon to consider the troublesome problem of damage occasioned by the invasion of air space by noxious odors, flies, and insects occasioned by the construction of a municipal sewage treatment plant.³ The Downs Court held that where the odors result in personal discomfort and annoyance to those who live upon the land — as in the case at bar:

“The damages consequent therefrom are recoverable as a taking or damaging of private property for a public use under Article I, Section 17, of the Constitution only if, and after, the operations of the sewer farm constitute a nuisance.” (367 S.W.2d at 158, emphasis supplied)

The Court quoted at length from Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119, 120 (1909), concluding with this language:

“ ‘If there be no nuisance, there can be no recovery of damages for such annoyance as may exist, nor for diminution in the value of the property.’ ”

The Downs Court also held:

“Liability arose against Petitioner [City] when, and not until, the operations of its sewage disposal system were such as to constitute a nuisance . . ..” (367 S.W.2d at 160)

Where there has been a taking of the property by a physical invasion or appropriation thereof, “the land limitation rather than the general limitation statutes apply to such inverse condemnation proceedings.” Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99,109 (1961). Thus, in Brazos River the flooding of the sewage disposal plant amounted to a physical invasion thereof and the 10-year statute controlled.

The jury in our case found as a fact, based upon a great deal of evidence of probative nature, that the nuisance was created more than two years before plaintiffs brought their suit (in 1975), and had existed since 1967. The two-year statute of limitations, Art. 5526, subdiv. 1 (1958), applies for “injury done to the estate or the property of another.” See Atlas Chemical Industries, Inc. v. Anderson, 524 S.W .2d 681, 685 (Tex.1975).⁴

Plaintiffs rely principally upon City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n. r. e.), but we do not find this case to be persuasive in the case at bar. In Downs, supra, it was held that the nuisance amounts to a “damaging” of the property, whereas, McFadden holds that the continual flying of noisy airplanes over plaintiff’s house amounted to a “taking” under the constitutional provision noted earlier. Other cases have held that the type of injury found in McFadden amounted to a taking. See, e. g., authorities discussed in Jefferson County v. Farris, 476 S.W.2d 457, 459 (Tex.Civ.App. — Beaumont 1972, orig. proceedings); Jefferson County v. Cohrt, 487 S.W.2d 444 (Tex.Civ.App. — Beaumont 1972, no writ), wherein it was held that eminent domain proceedings constituted the proper method of acquiring such an easement.

From the undisputed evidence, and based upon the jury verdict, the nuisance affected plaintiffs’ lands more than two years before the present suit was instituted, therefore, the two-year statute of limitation controls the liability question. Thus, when the jury found, in answer to Special Issue No. 18 that the odors and fumes from City’s sewer line had constituted a nuisance since 1967, judgment should have been entered for defendant City.

We do not find it necessary to discuss the remaining points of error brought forward. It now becomes our duty to render the judgment which the trial court should have rendered: that the plaintiffs take nothing by reason of their suit.

The judgment of the trial court is reversed and judgment rendered that the plaintiffs take nothing.

REVERSED and RENDERED.

1 . This is the second time we have reviewed a controversy between the same parties involving the same subject matter. See Bowling v. City of Port Arthur, 522 S.W.2d 270 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.). Since we are authorized to take judicial notice of our own records under the line of authorities collated in Barnett v. Maida, 523 S.W.2d 325, 327 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.), We know that the application in Bowling I, supra, was refused, no reversible error, on July 7, 1975, and the motion for rehearing on said application was overruled on July 30, 1975.

2 . Tex.Const. art. I, § 17: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . ..

3 . The quotation is from the late Justice Norvell, “Compensable and Noncompensable Damages”, SW. Legal Foundation Institute on Eminent Domain 1, 19 (1963).

4 . This holding in Anderson was not affected by the subsequent action of the majority in reinstating, on rehearing, the award of exemplary damages.