Pate v. City Of Martin

614 S.W.2d 46 (1981)

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Nature of the Case

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Facts

In 1969, D built a lagoon into which raw sewage is piped from the city's sewer system. In a properly constructed and maintained sewage lagoon, sewage sinks to the bottom of a lagoon, where it is decomposed through bacterial action with little if any, odor. Things went well for two-three years, but afterward, on many instances, the surface of the lagoon had a thick scum of raw sewage floating on top of the water. The odor made habitation of dwellings in the vicinity almost impossible. The condition could have been remedied by the adding of additional enzymes to the sewage and by scattering or churning the surface scum so that it will settle to the bottom of the lagoon. D tried using a motorboat but stopped after a short while and never added more than a minimal amount of enzymes to the sewage. P sought an abatement of a nuisance and damages to real property resulting from the nuisance. The chancellor found that a sewage lagoon was a permanent nuisance and awarded P $10,000.00 in damages. The chancellor also found that 'an injunction would be too harsh a remedy and should be denied.' The Court of Appeals classed the nuisance as temporary rather than permanent, reversed the award of damages which was based on the before and after value of P's property, and dismissed P's action for failure to prove damages for impairment of the use and enjoyment of property, which is the basis for damages resulting from a temporary nuisance.