Missouri-Kan.-Texas R. Co. v. Williams , 5 S.W.2d 575 ( 1928 )

Appellant insists that the court should have given the requested peremptory instruction to the jury, and that the judgment should be reversed and rendered on appeal for the following reasons: (1) The alleged nuisance being only temporary, and the suit being only for permanent injuries to his premises, the plaintiff was not entitled to recover. (2) The cause of the alleged nuisance, and the nuisance, was shown to have existed more than two years prior to the filing of the suit, and the suit was therefore barred by limitation. (3) The company, being a riparian owner, had the right to the reasonable use of the creek, and there was neither allegation nor proof of unnecessary or negligent use of its premises, and no substantial injury otherwise to plaintiff was shown.

It is a factor of importance, affecting the relief, whether the claimed nuisance is a continuing, constantly recurring and permanent one, or merely a temporary one in its nature or character. It is admitted that a single recovery may be had where the injury is an appreciable, continuing, and permanent one. The appellee alleged that the nuisance was a continuing and permanent one, and the evidence offered to this effect tends to establish that fact. It was shown that, arising from the conditions of the work and the usual use of the premises in the operation of the extensive terminal yards, deleterious substances, such as waste water in the cleaning of engines and cars, wastage of oil, and water as it leaves the septic tank, to some extent find their way to, and commingle with, the waters of Corn creek, and thence are carried to, and cast upon, the appellee's farm. Such substances, as shown, are discharged and flow in more or less appreciable quantities, and are deleterious in nature, affecting the adjoining premises of others in use and habitation, and lessening the market value thereof. The discharge of such deleterious substances into the creek is continuing and constantly recurring, as testified to by witnesses. The inference is allowable that it is not a casual or infrequent, but practically a daily occurrence. And, in the circumstances, it is believed that the nuisance may properly be treated as permanent; for, as appears, the flow of the deleterious substances into the creek is the necessary consequence of the operation of the extensive terminal yards on the premises on which they are located, and the duration of the presence of such deleterious substances depends upon the duration of the operation of the terminal yards. The terminal yards, as admittedly shown, are permanent, and are intended, in their very nature, to be permanently used and operated without change of manner of use. Although the nuisance complained of is from an artificial agency, yet there is evidence to show that the discharge is not reasonably likely to be removed by any agency. As appears, practical agencies have been constructed and maintained to lessen and prevent overflow and drainage of such substances into the creek, but, notwithstanding such reasonable precaution, overflow and drainage to some extent occur. Denison P. S. Ry. Co. v. O'Maley (Tex.Civ.App.)45 S.W. 227; Missouri, K. T. R. Co. v. Green, 44 Tex. Civ. App. 247,99 S.W. 573; Rosenthal v. Ry. Co., 79 Tex. 325, 15 S.W. 268; Baugh v. Ry. Co., 80 Tex. 56, 15 S.W. 587. As stated in the Rosenthal Case, supra, a fair test of permanency is:

"If it [the injury] results from a cause which is either permanent in its character or which is treated as permanent by the parties, it is proper that the entire damage should be assessed with reference to the past and probable future injury."

The test has been further stated as follows:

"In all those cases where the cause of the injury is in its nature permanent, and a recovery for such injury would confer a license on the defendant to continue the cause, the entire damage may be recovered in a single action; but where the cause of the injury is in the nature of a nuisance and not permanent in its character, but of such a character that it may be supposed that the defendant would remove it rather than suffer at once the entire damage which it might inflict if permanent, then the entire damage cannot be recovered in a single action." Hargreaves v. Kimberly, 26 W. Va. 787, 53 Am.Rep. 121.

The test may be followed in the present facts, because the use of the premises and the operation of the yards in the manner complained of appear to be necessary for the company to do, and to continue to do, and the company has used reasonable, practical agencies to lessen the overflow and drainage. Therefore the recovery for the injuries therefrom in a single suit would operate to "confer a license on the defendant to continue the cause." There is distinguishment between this case and the cases cited of City of Graham v. Moseley (Tex.Civ.App.) 254 S.W. 130; Sanders v. Miller, 52 Tex. Civ. App. 372, 113 S.W. 996; and defective culvert cases. Whether there was injury, and the extent of it, to appellee's land and the use thereof by reason of the deposits, were questions of fact to be decided by the jury.

The court did not err in refusing to peremptorily instruct a verdict on the ground that the statute of limitation had barred the suit.

Under the special facts, the drainage of noxious matters from the terminal yards to appellee's land constituted a nuisance which entitled the appellee to relief, although the appellant may have the right to the reasonable use of the creek as a riparian owner, and regardless of negligence. The case is comparable to Teel v. Oil Co.,47 Tex. Civ. App. 153, 104 S.W. 420, and Benjamin v. Ry. Co., 49 Tex. Civ. App. 473, 108 S.W. 408; also Stubblefield v. Ry. Co. (Tex.Civ.App.) 203 S.W. 936; 4 Sutherland on Damage, § 1035; Joyce on Nuisances, § 44. The present case is unlike Gulf, C. S. F. Ry. Co. v. Oakes, 94 Tex. 160, 58 S.W. 999, 52 L.R.A. 293, 86 Am. St. Rep. 835, and Texas S. Ry. Co. v. Meadows, 73 Tex. 32,11 S.W. 145, 3 L.R.A. 565. The appellant may not justify the results of nuisances committed in and about its terminals and shops upon the ground that they arise in the operation of a railroad. Rainey v. Ry. Co.,99 Tex. 276, 89 S.W. 768, 90 S.W. 1096, 3 L.R.A. (N. S.) 590, 122 Am. St. Rep. 622, 13 Ann.Cas. 580.

We have considered the remaining assignments of error and propositions thereunder, and have concluded that each of them should be overruled.

The judgment is affirmed.