Frank v. Environmental Sanitation Management, Inc.

687 S.W.2d 876, 1985 Mo. LEXIS 250

• Court: Supreme Court of Missouri
• Decided: April 2, 1985
• Docket: 66244
• Status: Published

Opinions

BILLINGS, Judge.

Plaintiff landowners sued Environmental Sanitation Management, Inc., [ESM], owner of a landfill, and the individuals owning ESM, for damages by reason of ESM’s maintenance of a permanent nuisance. A jury awarded plaintiffs actual damages against ESM and the court of appeals affirmed. We granted transfer to reexamine existing law and review the case as an original appeal. Mo. Const, art. V, § 10, 1945. We affirm.

ESM opened the landfill in 1973 and operated it until 1979. The landfill was located near Jefferson City and on land that had previously been used for farming. Although the land was not of the proper amount or type of soil to insure leachate would not escape into the groundwater, it was assumed leachate could be contained by proper management.

A creek runs along a part of the landfill and across lands of plaintiffs. Plaintiff used their lands to farm, raise beef cattle, and maintain dairy herds. The water in the creek had been used by plaintiffs in their various farming operations since the 1960’s.

ESM deposited all types and kinds of household, commercial and industrial garbage and waste in the landfill, including paint thinner, chemicals, fingernail polish and remover, hand cream, perfume, sewage sludge, oil and dead animals. As waste was deposited in an area of the landfill, it would be compacted and a layer of soil spread over it. This regular procedure was followed until the particular area was full. Then a final layer of soil was applied and the area seeded.

Rainwater and surface water can infiltrate the compacted layers, or “cells”, of the landfill. Such water picks up contamination from the organic and chemical wastes. The contaminated water moves both down and laterally and can invade underground and surface sources of fresh water — such as the creek. The contaminated water, together with the residue it carries, is called leachate — described as polluted, discolored, foul-smelling scum.

In 1974 there was a small outbreak of leachate at the landfill but it was quickly brought under control. However, beginning in 1977 substantial amounts of leac-hate from the landfill ended up in the creek. The creek was still polluted with leachate at time of trial in November, 1982. Prior to 1977 the creek water was clean and pure and free of pollution. Plaintiffs were able to use it in their farm operations, including the watering of their livestock. After 1977 the leachate polluted the stream to the extent that the water was dirty and discolored; the creek and adjoining areas had the odor of decaying organic material described as smelling like rotten eggs or hog manure. Aquatic life in the creek died. Because the leachate polluted the creek water with certain chemicals considered harmful to humans and animals, plaintiffs prevented their livestock from drinking the water. Additionally, there was expert testimony that the continued leachate contamination of the creek had permanently reduced the value of plaintiffs’ lands.

Defendant contends the verdict directing nuisance instruction was improper because the pleadings and evidence did not show that an intentional act caused the leachate to escape. The trial court used MAI 22.06 as the nuisance verdict director for all plaintiffs:

Your verdict must be for plaintiffs and against defendant Environmental Sanitation Management, Inc., if you believe: First, plaintiffs used their property as a farm, and

Second, defendant Environmental Sanitation Management, Inc. operated a landfill upstream to plaintiffs’ farm, and

We recognize there is a conflict between the instruction and its notes on use.¹ The notes on use say the instruction has limited application as explained in the Committee’s Comment. The comment cites as authority the Restatement (Second) of Torts § 822 (1965) which requires a focus on a defendant’s conduct.² The instruction makes no mention of defendant’s conduct. Defendant relies upon the Restatement view. We hold the Restatement does not accurately reflect Missouri’s nuisance law and the trial court, properly instructed the jury.

Nuisance is the unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to peacefully enjoy his property. Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo.1943). The focus is defendant’s unreasonable interference with the use and enjoyment of plaintiff’s land. Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787, 791 (Mo.App.1980). Nuisance is an effect rather than a cause of tort liability and conduct antecedent to the interference may be irrelevant. Id.3 Nuisance is a condition and does not depend on the degree of care used; it depends on the degree of danger existing with the best of care. White v. Smith, 440 S.W.2d 497 (Mo.App.1969). The law of nuisance recognizes two conflicting rights: property owners have a right to control their land and use it to benefit their best interests; the public and neighboring land owners have a right to prevent unreasonable use that substantially impairs the peaceful use and enjoyment of other land. Clinic & Hospital, Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384 (1951). The unreasonable use element of nuisance balances the rights of adjoining property owners. Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983).

The crux of a nuisance case is unreasonable land use. The broad categories within which previous cases fit illustrate ways to prove unreasonable land use; they are not exclusive. It may be beneficial for plaintiffs to attempt to plead their cases into recognized categories but the law of nuisance, which is based on a balancing of interests, must remain uniquely receptive to new ways of demonstrating unreasonable use.

The easiest way to show a nuisance is to prove defendant’s conduct is unreasonable as a matter of law. This category may be called nuisance per se. In Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119 (1940), a funeral home in a purely residential neighborhood was held to be a nuisance. The unreasonable use element was assumed and an injunction issued. There was no allegation of improper conduct. The court cited previous authority rather than the facts of the case to demonstrate the injury funeral homes impose on residential neighborhoods. Operation of a landfill in a rural area is not a nuisance per se.

A nuisance may be found as a factual matter independent of prior cases and conduct. In Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo.1943), the Court noted:

There is no exact rule or formula by which the existence of a nuisance or the nonexistence of a nuisance may be determined. ‘Necessarily each case must stand upon its own special circumstances, and no definite rule can be given that is applicable in all cases, but when an appreciable interference with the ordinary enjoyment of property, physically, is clearly made out as the result of a nuisance, a court of equity will never refuse to interfere,_’ Wood, Nuisances, § 801

Id. at 805. In Kelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728 (1948), plaintiffs were injured because of fumes and mists that eminated from defendant’s plant. Although the court held for defendants on a negligence issue it emphasized that it could sustain an award if nuisance was its basis. As a factual matter defendant’s use of land was unreasonable. In Fuchs v. Curran Carbonizing and Engineering Co., 279 S.W.2d 211 (Mo.App.1955), a tavern owner sued for injuries sustained because defendant’s plant emitted air pollution. A submissible case of nuisance was established on three facts. First, emissions of fumes from defendant’s plant invaded plaintiff's premises. Second, the emissions injured plaintiff. Third, proper circumstances were shown — probably unreasonable use. In Clark v. City of Springfield, 241 S.W.2d 100 (Mo.App.1951), plaintiff proved defendant operated a sewer with a drainage system near his property. When too much water accumulated the drainage system would flood and deposit garbage and manure on plaintiff’s land. This was a nuisance whether the action was done intentionally or negligently. In Greene v. Spinning, 48 S.W.2d 51 (Mo.App.1931), the fact that cars pulling into defendant’s filling station cast bright lights into plaintiff’s house created an actionable nuisance. Finally, in Haynor v. Excelsior Springs Light, Power, Heat & Water Co., 129 Mo.App. 691, 108 S.W. 580 (1908), the court held defendant liable in nuisance because it operated a gas manufacturing plant that polluted nearby water and a well. Plaintiff’s action arose because defendant used the water course as a sewer, plaintiff sustained injury to her property, and there was a causal connection between the two facts.⁴ In the instant case, the verdict director required a finding of unreasonable use. That was sufficient. The jury had sufficient evidence to conclude ESM’s use of its land in a manner that created leachate was unreasonable.

Nuisance may also rest upon a continuing known invasion. Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. banc 1974), involved consolidated nuisance suits for damages resulting from the flooding of plaintiffs’ property. Construction on defendant’s property diverted water and caused floods and the evidence was ample to show a continuing intentional nuisance after the first flooding because numerous complaints were made, and in light of the early and numerous complaints, defendant failed and refused to remedy the situation. Similarly, in Vaughn v. Missouri Power & Light Co., 89 S.W.2d 699 (Mo.App.1935) plaintiffs sued for damages resulting from defendant’s operation of a spray pond. Wind carried spouts of water and chemicals which damaged plaintiffs’ land. Defendant continued to run the pond after being told of its effects. This was a nuisance. In the instant case the jury had sufficient evidence to conclude defendant continued to operate the landfill after it knew of the leachate problem, even though leachate indicated the landfill contained its capacity.

An intentional act may constitute a nuisance. The requisite intent may be merely that “defendant intentionally did an act which happened to interfere with plaintiff’s land.” Comment, The Law of Private Nuisance in Missouri, 44 Mo.L.Rev. 20, 51 (1979). In Genova v. City of Kansas City, 497 S.W.2d 555 (Mo.App.1973), the court approved a modified MAI 22.06, which required the jury find: (1) Plaintiff owned the damaged buildings, (2) defendant diverted the normal flow of water, (3) defendant allowed the deterioration of a drain near plaintiffs land, (4) water collected on defendant’s land and was discharged on plaintiff’s land in unnatural volumes, (5) defendant used his land unreasonably, and (6) plaintiff was damaged as a direct result. A similar instruction was approved in a nuisance suit where defendant’s hog farm polluted the air and water on plaintiff's property. Bower v. Hog Builders Inc., 461 S.W.2d 784 (Mo.1970). In the instant case the jury had sufficient evidence to conclude circumstances surrounding the construction of the landfill constituted a sufficiently intentional act to impose liability for a nuisance.

Negligence may also constitute a nuisance. In Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787 (Mo.App.1980), plaintiff alleged defendant negligently maintained a levee that caused the flooding of his land. The court allowed a cause of action in negligence to describe a temporary nuisance. It must be noted that negligence is not needed to prove a nuisance. Hawkins, supra; Proper v. City of Independence, 328 S.W.2d 55 (Mo.App.1959). Negligence alone does not create a nuisance. Lentz v. Schuerman Building & Realty Co., 359 Mo. 103, 220 S.W.2d 58 (banc 1949); Bollinger v. Mungle, 175 S.W.2d 912 (Mo.App.1943). Negligence will only support a finding of nuisance when it constitutes an unreasonable use of land.⁵

MAI 22.06 requires the necessary finding of unreasonable land use. It was properly given in the instant case because liability for nuisance may rest on a finding of unreasonable use whether or not the use had been previously encountered. The instruction afforded sufficient flexibility to allow the jury to evaluate the instant case on its particular facts.

Second, defendant claims trial court committed error by refusing to give proposed converse instructions. With the exception of the names of the individual plaintiffs, the proposed instructions were identical:

Your verdict must be for defendant Environmental Sanitation Management, Inc. and against Plaintiffs Andrew Frank and Anna Pearl Frank if you believe:

First, defendant Environmental Sanitation Management, Inc. did not act with the purpose of causing ill-smelling odors and leachate to escape onto Andrew and Anna Pearl Frank’s property, and

Second, defendant Environmental Sanitation Management, Inc. did not act knowing that ill-smelling odors and leac-hate were escaping onto Andrew and Anna Pearl Frank’s property as a result of its conduct or knowing that ill-smelling odors and leachate were substantially certain to escape onto Andrew and Anna Pearl Frank’s property as a result of its conduct.

Defendant’s affirmative converse instructions are governed by MAI 33.01. “The facts hypothesized in an affirmative converse instruction must be sufficient in law to defeat plaintiff’s claim” MAI 33.01 at 489. See Morse v. Johnson, 594 S.W.2d 610 (Mo. banc 1980); Oliver v. Bi-State Development Agency, 494 S.W.2d 49 (Mo.1973). Defendant’s hypothetical facts merely eliminate two of many ways to show unreasonable land use. The converses were properly rejected.

Third, defendant claims the jury should have been instructed on damages for a temporary rather than a permanent nuisance. Damages for a permanent nuisance are measured by the difference in the land’s market value immediately before and after injury; damages for temporary nuisances include the decrease in rental or useable value of property during the injury. Spain v. City of Cape Girardeau, 484 S.W.2d 498 (Mo.App.1972). The character of the source of injury often distinguishes temporary and permanent nuisances. Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787 (Mo.App.1980). A nuisance is temporary if it may be abated, and it is permanent if abatement is impracticable or impossible. See Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626 (banc 1942); Bartlett v. Hume-Sinclair Coal Mining Co., 351 S.W.2d 214 (Mo.App.1961). Evidence showed expensive and sophisticated leachate control plans failed to stop the outbreaks. This justified the instruction on permanent damages. Ruppel v. Ralston Purina Co., 423 S.W.2d 752, 756 (Mo.1968). Evidence also showed a stigma from repeated leachate outbreaks permanently devalued plaintiffs’ property. This independently justified the instruction on permanent damages. Amish v. Walnut Creek Development, Inc., 631 S.W.2d 866 (Mo.App.1982). The instruction on permanent damages was properly given and the record reveals sufficient evidence to support the jury’s findings.

Fourth, defendant claims trial court erred by sustaining an objection to certain testimony. Defense counsel asked James Penfold, an expert with DNR, a hypothetical question:

Mr. Penfold, assuming that ESM maintains any seep that might develop on the landfill area, that isn’t picked up by the present collection system, and assuming the hauling capabilities that you testified to, do you have an opinion as to whether or not this leachate collection system is going to work in terms of preventing leachate from getting into the creek.

Trial court sustained plaintiff’s objection that the question “assumes facts into the future and therefore calls for the witness to speculate and would be an improper question because there could be no evidence as to what will be done in the future.” No offer of proof was presented by defense counsel. Generally, appellate courts will not review excluded evidence without a specific and definite offer of proof. Karashin v. Haggard Hauling & Riggins, Inc., 653 S.W.2d 203 (Mo. banc 1983). We carved out an exception to this rule in State ex rel. State Highway Commission v. Northeast Building Co., 421 S.W.2d 297 (Mo.1967). In Northeast we recognized the purpose of an offer of proof is to insure the trial court and opposing counsel understand the proposed evidence. Additionally, an offer of proof enables appellate courts to understand claims of error. In Northeast an offer of proof was not needed because everybody at trial knew what the testimoy would be. Because the objection was based on a category of evidence and could be adequately reviewed, we created an exception to the rule requiring offers of proof. This exception is very narrow. First, it requires a complete understanding, based on the record, of the excluded testimony. Second, the objection must be to a category of evidence rather than to specific testimony. Third, the record must reveal the evidence would have helped its proponent. See Brooks v. Travelers Insurance Co., 515 S.W.2d 821 (Mo.App.1974). The instant evidence does not fit into the Northeast exception. The objection was to specific content not to a category of questioning. In Northeast we could review whether piecemeal valuation was improper. Here, we would have to guess whether the content of the witness’ answer would have been improper evidence. The point was not properly preserved for review. See State ex rel. State Highway Commission v. Ankrom, 588 S.W.2d 172 (Mo.App.1979).

We have reviewed defendant’s remaining allegations of error and we incorporate that part of the court of appeals’ opinion which addresses the allegations.

“Next, defendant asserts certain evidence was erroneously admitted at trial. Defendant first complains of the admission of evidence that it had violated Missouri’s Clean Water Law.

“In December of 1980, defendant and the State of Missouri entered into a stipulation and consent order in resolving an action brought by the state charging defendant with various violations in the operation of the landfill. Defendant motioned in limine to exclude reference to the consent order and plaintiffs agreed not to raise the issue. On the third day of trial, defendant produced evidence approximately $328,000 had been spent by it to arrest the leachate problem. The next day, plaintiffs, in conference with the trial court, sought permission to refer to the consent order to shed light on the evidence of defendant’s expenditures. The trial court granted permission for plaintiffs to ask defendant’s president if the Missouri Department of Natural Resources pressured it to make changes in the landfill’s operation.

“When the president was asked this question he answered ‘no.’ The trial court then permitted plaintiffs to ask whether the Attorney General had brought an action against defendant for violations of the Clean Water Law. The president stated the action had to do with a notching of the leachate collection system. There was no evidence of the outcome of the action or the consent order. In controlling the scope and content of cross-examination, the trial court enjoys broad discretion. Wilkins v. Cash Register Service Co., 518 S.W.2d 736, 750 (Mo.App.1975). Here the cross-examination was closely supervised. We find no abuse of the court’s discretion in allowing plaintiffs’ questioning in response to defendant’s evidence of the amount spent to improve the landfill.

“Defendant argues three exhibits should not have been admitted because they contain witnesses’ opinions as to conclusions of law. This ground for objection was never submitted to the trial court when the exhibits were introduced nor in the motion for a new trial. A party may not advance on appeal an objection to evidence different from the one presented to the trial court. Phillips Pipe Line Co. v. Ashley, 605 S.W.2d 514, 518 (Mo.App.1980).

“Defendant also complains the trial court allowed witnesses Crawford and Williford to testify because their testimony was ‘irrelevant, injected a false issue, and was privileged.’ This part of the point relied on presents nothing for review. Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978). Our reading of the briefs and the record on appeal convinces us no reversible error was uttered out of the mouths of Crawford and Williford when weighed with the objections interposed by defendant.

“Finally, defendant complains the trial court abused its discretion by denying its motion for new trial and remit-titur on the basis of excessive verdicts. Plaintiff Hoskins said his loss was $27,000, a real estate expert said it was $12,900 and the jury awarded $6,500. Plaintiff Curren-der put his loss at $109,250; a real estate expert at $71,134 and the jury awarded $43,888. Plaintiff Frank put his loss at $75,000; a real estate expert at $41,000; and the jury awarded $23,222. The matter of excessiveness is to a great extent within the province of the trial court. Morris v. Israel Bros., Inc., 510 S.W.2d 437 (Mo.1974). Because the verdicts were within the evidentiary limits, we will defer to the discretion of the trial court.”

Judgment affirmed.

RENDLEN, C.J., and HIGGINS and GUNN, JJ., concur. BLACKMAR, J., concurs in separate opinion filed. WELLIVER, J., dissents in separate opinion filed. DONNELLY, J., dissents and concurs in separate dissenting opinion of WELLIVER, J.

1 . This conflict was discussed in Comment, The Law of Private Nuisance in Missouri, 44 Mo.L. Rev. 20, 53 (1979). The comment correctly concluded that the verdict director is consistent with Missouri law, which does not require a plaintiff to prove negligence or intent. The comment continued to explain that there is little authority for the Committee to have adopted the Restatement:

John S. Divilbiss served as Reporter for MAI from 1962 until his death in 1967. His unpublished notes cite Clinic & Hosp., Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384 (K.C.1951) and Fuchs v. Curran Carbonizing & Eng’r Co., 279 S.W.2d 211 (St.L.Mo.App.1955) as authority for the proposition that Missouri had adopted the Restatement. In Clinic, the court cited § 822 of the Restatement and listed factors for determining whether a private nuisance exists. The court did not discuss

Third, ill-smelling odors and leachate escaped from defendant Environmental Sanitation Management, Inc.’s premises onto plaintiffs’ property and this substantially impaired plaintiffs’ use of their property, and Fourth, such use by defendant Environmental Sanitation Management, Inc. of its property was unreasonable. whether intent and/or negligence are required in order to maintain a private nuisance action. A subsequent case, Lee v. Rolla Speedway, Inc., 494 S.W.2d 349 (Mo.1973), used the Restatement balancing test in a similar manner, but did not mention the requirement of intent and/or negligence.

Id. at 53 n. 251.

2 . Committee’s Comment (1969 New)

Section 822, the Restatement (Second) of Torts § 822 (1965), states:

The actor is liable in an action for damages for a non-trespassory invasion on another’s interest in the private use and enjoyment of land if,

(a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and

(b) the invasion is substantial; and

(c) the actor’s conduct is a legal cause of the invasion; and

(d) the invasion is either

(i) intentional and unreasonable; or

(ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.

The above instruction is intended to cover only those cases where the invasion is intentional and unreasonable.

The Restatement points out in § 825 comment d:

An invasion of another’s interest in the use and enjoyment of land is intentional when the actor

(a) acts for the purpose of causing it; or

(b) knows that it is resulting or is substantially certain to result from his conduct.

Comment b following states:

Most of the litigation over non-trespassory invasions of interests in the use and enjoyment of land involves situations in which there are continuing or recurrent invasions resulting from continuing or recurrent conduct. In such cases the invasion resulting from the actor’s conduct may be either intentional or unintentional, but when the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional.

3 . Rebel indicated, in dicta, that modern law requires intentional, negligent, reckless or abnormally dangerous conduct by defendant. The court noted cases that disagree with this position. To the extent Rebel holds nuisance cannot be maintained without proof of the described conduct, it is disapproved. A more accurate statement of the law may be found in White v. Smith, 440 S.W.2d 497 (Mo.App.1969). The court held defendant’s negligence, intention, design, or motive are immaterial to his liability for nuisance.

4 . Courts have declined to impose liability for land use that injured adjoining land owners. In Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983), property owners sued neighbors for damages from water runoffs. Defendants dug a garden and installed a tie border. Plaintiffs alleged the improvements rerouted water onto their land in destructive quantities. The jury was given an instruction that required a finding of unreasonable land use by defendant. It returned a verdict for defendant. In Schott v. Appleton Brewery Co., 205 S.W.2d 917 (Mo.App.1947), a brewery was held to be a reasonable use of land and therefore not a nuisance.

5 . There is an old distinction in nuisance cases that inaccurately describes this requirement. Things lawfully done which may cause injuries if done improperly were held to need proof of negligence before constituting a nuisance. Things which caused injuries by their very nature were held to not need proof of negligence before constituting a nuisance. Greene v. Spinning, 48 S.W.2d 51 (Mo.App.1931); Schindler v. Standard Oil Co., 207 Mo.App. 190, 232 S.W. 735 (1921). It was thought that the nuisance must be inherent in the source of injury. Pearson v. Kansas City, 55 S.W.2d 485 (Mo.1932). It is more accurate to say negligence may constitute an unreasonable use of land and thereby create a nuisance, but negligence alone does not create the nuisance.