The appeal is brought by the plaintiff in error, plaintiff below, from the judgment of the district court of Canadian county in favor of the defendant in error, defendant below, in an action by plaintiff for damages on account of a sewer, discharged from the city onto or in proximity to plaintiff's land, amounting to a nuisance.
The facts as disclosed by the record are substantially as follows:
The plaintiff was the owner of a tract of land consisting of about 120 acres, situated in what was once a horse shoe bend of the North Canadian river, just north of the city of El Reno. This bend in the river runs completely around the tract of land coming south near the city and bending to the east a short distance and turning back north about one-half mile and then turns east, and where it turns east is only a short distance across to the west to the channel of the river coming south in the bend toward the city. The bend was like a horse shoe opening to the north.
Plaintiff bought this land from a man by the same of Simpkins, in February, 1920. Simpkins bought the land from McIlwain and McIlwain, bought the land from R. J. Sheldon, the original owner. While Sheldon was owner of the land it was considered overflow land, and to remedy this condition Sheldon and two other landowners owning land on the river constructed a channel between the points of the horse shoe bend across the north side of Sheldon's land straightening the channel of the river and conducting the water away from this bend and carrying it across the short way into the main channel of the river turning off to southeast. Prior to this time the city of El Reno had a sewer system which emptied into the Canadian river at the south end of this horse shoe bend, which was next to the city, and the river coming around the bend carried the sewage away and down the river.
When the channel was changed, as above stated, it left the old channel around the bend to go dry except for the sewage from the city, and, for a time, this sewage ran away freely to the river channel as changed, but from time to time where the old river bed joined onto the living stream at the north and east side of the new channel, filled up by the back wash and sand and dirt, leaving very much of the sewage in the old channel, and this continued for several years, and the water backed up part of the way on the west side of the horse shoe bend and within a short distance from where the plaintiff and his family resided. The change of the channel improved the overflow conditions, but caused a stagnant condition of the sewage from the city in the horse shoe bend, and this sewage emptying into and standing in the old river bed tainted the atmosphere with noxious and offensive odors which were disagreeable and unhealthful for the plaintiff and his family and his dwelling place unfit for habitation; and was in fact a nuisance.
During the year 1920, on recommendation of the state board of health, a sewage disposal plant was constructed by the city of El Reno some distance back from the mouth of the sewer, which sewage disposal plant takes the sewage from the city, extracts from it all solid matter and discharges the water into the main sewer line, which emptied into the old river bed as before. This did not relieve the foul situation, because the sewage as cleansed by the disposing plant was not sufficient to cleanse and carry off the solid matter that had been deposited in the old river bed, and held there by the back wash of sand and dirt where the new channel cut across the old channel at the north, and so the nuisance continued.
Complaint was made to the city and the officials cut a ditch along the old channel on the east side going north for the discharge from the disposal plant to run away to the new channel of the river, a distance of about one-half mile, and, for a time, the water ran in this ditch and the foul water backed up in the old channel dried up entirely. It could be crossed at a few places, but the city did not feel able to keep a man on guard at this ditch all *Page 113 the time to keep it open, and the hogs, in the neighborhood, owned by the landowners or tenants, got into the ditch and rooted down its walls, and again the water poured out of the ditch into this old river bed, and prevented the stagnant water from drying up; and the plaintiff did not assist in any way to keep the hogs out of the ditch. A fence could have been placed on each side of this ditch and protected it from cattle and hogs, and the water from the sewer would have continued its course to the river channel at the north, and the stagnant water would have dried up.
The plaintiff claimed that the value of his land was damaged by reason of the nuisance, and he charged that the city created the nuisance, and was liable to him for damages, and brought this suit against the city for the same.
There was a great deal of testimony as to the bad conditions on account of the stagnant water, and the value of the land, and the case was tried to a jury and resulted in a verdict in favor of the defendant, and the plaintiff appeals, alleging various assignments of error, but urging only instructions of the court. The plaintiff requested four instructions, which were refused by the court, and which were as follows:
"1. If you find from the evidence that the condition in the abandoned river bed could be corrected by the reasonable expenditure of money and labor after the plaintiff bought the land in controversy and that defendant has failed to make said corrections and that on that account the market value of the land in controversy has been injuriously affected or his reasonable use of the land has been interfered with on account of the odors, if any, resulting from said failure, if any, you will find for the plaintiff, notwithstanding he bought the land after the objectionable condition has been erected.
"2. If you find that the defendant since plaintiff bought the land has abated the objectionable condition or relieved the same to some extent then you are charged that if the defendant has resumed and renewed the practice then plaintiff will be entitled to recover for what damage that has been occasioned to the land by reason of said renewal.
"3. The court instructs the jury that the defendant would have no authority to increase the volume of sewage which entered into the old river bed after the plaintiff bought the land and if you find from the evidence that after plaintiff bought said land the defendant turned additional sewage and that plaintiff was damaged thereby you will find for the plaintiff, if you find he was damaged thereby.
"4. If the defendant caused the contents of its sewer to be emptied into the old river bed around the farm of plaintiff and the market value of his farm has thereby been decreased, you will find for plaintiff and assess his damage to the farm at the difference between the market value thereof if it was free from said sewage and the present market value."
1. Plaintiff contends that the facts in the case showed the nuisance to be one affecting the public in general and the plaintiff in particular, and that the defendant had no right to taint the waters of a stream to the damage of landowners, citing many authorities to support his contention, and especially Oklahoma cases as follows: Colbert v. City of Ardmore, 31 Okla. 537, 123 P. 508; City of Chickasha v. Looney, 36 Okla. 155, 128 P. 136; City of Cushing v. High,73 Okla. 151, 175 P. 229; City of Cushing v. Luke, 82 Okla. 189,199 P. 578.
Plaintiff's contention and authorities cited are based upon the theory that the city created and maintained a nuisance, but plaintiff does not contend for a nuisance by reason of sewage being emptied into the living stream, but into the bend of the river from which the waters had been diverted. This is shown by plaintiff's statement in his brief to the effect that the nuisance could have been abated by extending the sewage around through this abandoned river bed to the present bed of the North Canadian river. This being plaintiff's contention and the foundation of his argument and authorities, there is just one question in this appeal, and that is, Who is liable for the nuisance? The undisputed evidence in the case shows that at the time the defendant constructed its sewerage system and conducted the sewage into this bend of the river the natural flow of the water came down from the north and around the bend where the sewage flowed into it and up one-half mile north, and then turning away to the southeast; and since that time the plaintiff's grantor, with other landowners, diverted the flow of the water from this horse shoe bend by a channel constructed on the north side of the plaintiff's land and without the consent or assistance of the city, and for the purpose of saving the lands from overflows, and the nuisance resulted from this diversion of the water from the horse shoe bend channel. If the waters had continued to flow around this bend there would be no complaint of the nuisance. *Page 114
Plaintiff contends that the defendant should have conducted the sewage through a pipe or channel to the living water stream, which would have burdened the defendant with a great expense. We do not think this is the requirement of the law. It is clear that the plaintiff knew at the time he purchased the land from Simpkins that the river channel had been changed, and he could have known whether or not the city had anything to do with making the change, and he could have known whether or not his immediate grantor or any of the grantors in the chain of his title had anything to do with this change. The change was made about the year of 1912, and in order to abate the nuisance it was only necessary, at any time, to close the cut off at the north and send the waters of the river channel around the bend, and, under these circumstances, we cannot see how the city could be charged with creating or maintaining the nuisance complained of. The general rule laid down by 29 Cyc. 1201, is as follows:
"The person primarily liable for a nuisance is he who actually creates it."
And in 20 R. C. L. 362 we have this rule:
"The grantee of land upon which there is a nuisance is liable therefor, if he continues it with knowledge of the nuisance."
And again in 29 Cyc. 1202-1203, we have this rule:
"Where the owner or person in possession of land continues a nuisance originated by his predecessors in title or possession, he is liable therefor."
The evidence discloses that the plaintiff's land was greatly benefited and enhanced in value by being relieved from the overflows in the change of the channel and straightening the river by the cut-off, and plaintiff in buying this land obtained the benefits from this change; and where the benefits are received and accepted by one in the approval of the acts of another and a nuisance is created by the acts that also produce the benefits, he will not be heard to complain and claim damages for such nuisance 20 Cvc. 1259; 20 R. C. L. 495; 20 R. C. L. 492; Bellamy v. City of Hamilton, 4 Upper. Can. Com. Pleas, 526, and Richards v. City of Waupun (Wis.) 17 N.W. 975; Shahan v. Ala. Great So. Ry. Co., 115 Ala. 181; Chaffee v. Telephone Company (Mich.) 43 N.W. 1064, 6 L. R. A. 455.
2. There is another good reason why the defendant is not liable for the nuisance complained of, and that is that plaintiff's grant or in changing the course of the river by the cut-off took away from the defendant the flow of the waters to carry its sewage down the stream, and an easement for the flow of the sewage in the old channel was implied. 9 R. C. L., page 785, section 43.
Defendant's right to the river for the purpose of its sewerage system is conceded, as there is no complaint that the sewage was a nuisance emptying into the flowing river, and when plaintiff's grantor changed the flow of the river further down than where defendant had access to the flow, an easement was given for the flow of the sewage in the same channel where it had been flowing, and, although this channel was one-half mile long before it reached the river, as changed, defendant used it for about 10 years by the consent of and without complaint on the part of plaintiff's grantor, and, the easement being obvious, the grantee could not complain against either party to the grant.
In 29 Cyc. 1260, the rule is stated as follows:
"A person is not precluded from recovering damages for a nuisance injuring his property by the fact that his grantor brought no action for it and made no complaint against it; but if the owner of property has charged it with servitude as to the matter complained of, a subsequent grantee cannot recover damages therefor." 9 R. C. L. page 805, section 61.
In the case of Troy v. Coleman, 58 Ala. 570, the Supreme Court of Alabama in passing on a case very similar to the one at bar uses the following language:
"Appellant proposed to prove that one of the sewers complained of by plaintiff was put there at the request of Joel D. Murphree, who owned said lot at that time, that is, the lot now belonging to plaintiff, to which damage was done. But the circuit judge ruled that this could not be done. It seems to us that in this there was error. If the former owner, who had power to charge the lot with any servitude in favor of the public, expressly authorized the building of one of the structures complained of, in such a situation and manner that it would naturally turn upon the lot a larger portion of the water which they desired to divert from the street, he thereby deprived himself of any right of action against the corporation for that which he, with knowledge of the consequences to his property, induced the authorities to do. And he would not, by a transfer of the lot to another, invest his alienee with larger rights than he himself had. The purchaser would take the property cum onere. As for this error, the judgment will have to be reversed." Union Springs v. Jones. 58 Ala. 654.
When this case was assigned to the writer of this opinion and submitted for consideration, *Page 115 defendant was in default of brief and the case was decided on the brief and authorities of plaintiff, and after the opinion was prepared by the Commissioners, defendant obtained leave to file its brief out of time, and the opinion prepared withdrawn, and upon full consideration of the entire record and the briefs of both parties we are forced to change our ruling in the first opinion, and taking the view of the case as above expressed, we think the instructions requested by the plaintiff were erroneous under the facts of the case and those given by the court were correct, and we are of the opinion that judgment of the court should be affirmed.
By the Court: It is so ordered.
On Rehearing.