Sunray Oil Corp. v. Sharpe

HOLMES, Circuit Judge.

This is an action by the appellees to recover damages for personal annoyance, inconvenience, and depreciation in the value of property, caused by the operation of appellant’s gas dehydration and compression plant, located in Texas near the residences of the appellees. The ap-pellees complain of the maintenance of a temporary and permanent nuisance by the appellant in the operation of said plant. The court below granted appellant’s motion for a directed verdict as to all damages for a temporary nuisance, and as to all allegations of negligence by the defendant; and submitted only the issue of a permanent nuisance to the jury, which found that both appellees were entitled to damages for the decrease in value of their property and for personal inconvenience and annoyance. From the judgment entered upon the verdict, the defendant appealed. The main issue is whether the appellees are estopped to claim damages for a permanent nuisance. If they are not so estopped, there is an issue as to whether their claim is barred by the two-year statute of limitations.

In September, 1945, Mrs. Marek, one of the appellees, conveyed by deed to appellant’s predecessor four acres of her fifty-acre tract, said land to be used by the latter for the construction and maintenance thereon of a gas compression plant, or dehydration station, with equipment and apparatus therefor. Prior to the conveyance, Mrs. Marek asserts that a representative of the appellant assured her that the operation of said plant would not interfere with her enjoyment of her residence, which was located about eleven hundred feet from the site of said plant. Her daughter corroborates this representation, but the appellant denies that any such statement was made to her. Again, in January, 1949, Mrs. Marek made a similar conveyance to appellant of additional land, the deed reciting the purpose of the conveyance and containing a reversionary clause in the grantor’s favor. In July, 1949, M. L. Sharpe, who was Mrs. Marek’s son-in-law, purchased from her son John a house located upon the property of Mrs. Marek. This house had been built by John Marek in 1938 under an oral agreement that he should have the opportunity to purchase a portion of the property, including that on which the house was built. By the consent of all interested parties, it was agreed that Sharpe should have the right to purchase the land under the same terms that had been extended to his grantor. Sharpe exercised this right in May, 1952, several months after filing this suit, and bought one acre. He *939and his family had lived with Mrs. Marek prior to their moving into said house in July, 1949.

There is substantial evidence to support the verdict, which settled all controverted issues of fact in favor of the appellees. The appellant had enlarged its plant in 1949, and again in 1951, by adding additional engines and cooling towers. After these enlargements the noise and vibration and the deposits of water vapor from the operation of said plant increased to such an extent as to become a nuisance.

The evidence shows that the operation of the plant created a nuisance of such a character as to annoy the appellees, to deprive them of the full enjoyment of their property, depreciate its value, and otherwise injure them in their personal and property rights. Also, it is a nuisance that will continue without change and one that cannot be readily abated at small expense. It is appellant’s primary contention that Mrs. Marek is estopped to recover damages or to claim that the operation of said plant constituted a nuisance to her, for the reason that the price paid by appellant for the land is presumed to have included damages to the remainder of the tract. The evidence also clearly indicates that the offensive noise and vibration were not necessary incidents of the operation of said plant. It is not the knowledge of the fact that a plant is to be constructed, but knowledge of the objectionable consequences thereof, which would estop the grantor. Mrs. Marek is not estopped, as the evidence is clear that she did not know or appreciate the effect of the erection and use of said plant; and she did not have reason to believe or to foresee that it would be a nuisance, for the nuisance could be established only by actual operation. See Richardson v. Lone Star Salt Company, 20 Tex.Civ.App. 486, 49 S.W. 647; Marvel Wells, Inc., v. Seelig, Tex.Civ.App. 115 SW.2d 1011; 39 Am.Jur., Nuisance, Sec. 198.

Appellee Sharpe likewise was not charged with knowledge that the erection of the plant would cause the objectionable consequences. In 1949, when Sharpe purchased his house, there was no indication that the plant would cause vibration or water vapors to be blown over his house. It was only after the enlargement of the plant in 1949 that substantial harm was caused to his property. Sharpe had a possessory interest in being when he commenced this action, and such an interest was sufficient for him to maintain an action for damages resulting from the nuisance, as the gist of such action is interference with the use and enjoyment of the property rather than with the interest in exclusive possession.

Mrs. Marek is not barred by the Texas two-year statute of limitations if her cause of action arose after the 1951 enlargement. The earlier pleadings filed by her alleged that the conditions after the 1949 enlargement were sufficiently offensive to constitute a nuisance; but, by amended pleadings, she alleged that the nuisance arose at a later date. She testified at the trial that, while the 1949 enlargement caused a considerable amount of noise and vibration to her premises, it was not substantial or highly offensive until 1951. The issue as to when the plant’s operations became a nuisance to Mrs. Marek was submitted to the jury, which found in her favor. There was sufficient evidence to support such findings by the jury, as liability in damages for a nuisance begins only when the interference causes substantial harm. Hooker v. Farmers’ Irr. Dist., 8 Cir., 272 F. 600. See Town of Jacksonville v. McCracken, Tex.Com.App., 232 S.W. 294; American Smelting & Refining Co. v. Godfrey, 8 Cir., 158 F. 225, 89 C.C.A. 139, 14 Ann.Cas. 8.

There was sufficient evidence upon which the jury could ascertain the damages and return a verdict for permanent injury resulting from the nuisance. Furthermore, there was no abuse of discretion on the part of the court below in allowing the amendments, because the appellant was in no manner preju*940diced thereby. The judgment appealed from is affirmed.

Affirmed.