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The full case caption appears at the end of this opinion. Opinion Summary: Certain residents of Atherton in Jackson County sued Little Blue Valley Sewer District for odors, alleging temporary nuisance intort for personal injuries and taking in inverse condemnation for property damage. The trial court awarded compensation forphysical suffering and loss of the use and enjoyment of their property, based on inverse condemnation as opposed to personalinjury tort. REVERSED. Court en banc holds: By emphasizing their property damage, amending their pleadings to conform to an inverse condemnation case, and disclaimingnegligence and sovereign immunity, the residents abandoned their nuisance claim for personal injury. When private property is damaged by nuisance operated by an entity with power of eminent domain, the remedy is inversecondemnation. The Constitution provides that property shall not be damaged for public use without just compensation. Where landis temporarily taken or injured, the measure of damages in not the market value but what the property is fairly worth for the time itis injured. A calculation of damages is also affected by whether the odors constituted a partial taking of property. The residents offered no evidence about the value of their property. The court erroneously applied the law to award the residentsdamages for their physical suffering and loss of use and enjoyment of their homes, while their nuisance-based inversecondemnation claim only seeks compensation for property rights injury, which is measured by its effect on the market or rentalvalue of their property. Citation: Opinion Author: Ronnie L. White, Judge Opinion Vote: REVERSED. All concur. Opinion: The Little Blue Valley Sewer District (Sewer District) appeals the judgment of the trial court awarding damages to Robert L.Byrom and other residents of the Atherton community (Residents) in their suit for nuisance and inverse condemnation. The SewerDistrict claims the Residents’ nuisance suit was barred by sovereign immunity. It also claims that even if the residents wereentitled to recover for inverse condemnation, the trial court erred in computing damages. Reversed. I. BACKGROUND The Sewer District is a political subdivision of the State of Missouri, created, existing, and operating under water pollutionprovisions of chapters 204 and 644, RSMo. The Sewer District has operated a wastewater treatment plant in Jackson Countysince 1985, approximately two miles from Atherton, Missouri. Raw industrial and residential sewage, consisting in part of humanwaste from more than 300,000 people, flows into the plant. Some of the sewage is “digested” by microscopic organisms in aerationclarification basins, yielding clean water that is returned to the Missouri River and sludge. The sludge is dried out in a decant tankand burned in an incinerator at the plant. The Residents all have lived, for varying lengths of time, within two miles of the plant since it opened. They and other non-partyresidents testified at trial about the foul odors produced by the plant. They smelled rotten eggs from the hydrogen sulfide emittedby the sewage, sulfur from the sulfur dioxide in smoke emitted by the incinerator, ammonia, and smells described as burnt feathers,an overused outhouse, and chemical smells. They testified they experienced some or all of the following physical effects causedby these odors: nausea, headaches, loss of sleep and appetite, runny noses, and watery and itchy eyes. Due to the unpredictabilityof the odors, the Residents also lost the use and enjoyment of their homes because they often could not engage in outdooractivities or invite guests to their homes for outdoor socializing. While the Residents were not constantly bothered by the odors, thetrial court found most suffered these injuries between twelve and twenty days each month they lived near the plant. The Residents called frequently to the plant and the Missouri Department of Natural Resources (MDNR) to complain between1985 and trial. During that time, MDNR issued numerous notices of excess emission because the strength of the odor violatedstate clean air regulations. MDNR also cited the Sewer District multiple times for violations of these regulations. At differenttimes and to varying degrees, multiple parts of the plant caused odor problems, including the intake area, peak flow clarifier, sludgeholding tank, decant tank, and incinerator. A review of the trial transcript also shows that before construction the Sewer Districtdid not expect odor to be a problem for its neighbors. Once it realized a problem existed, the Sewer District believed it could besolved. The Sewer District regularly assured the Residents and the MDNR there would be no odor problem and that it would fixthe plant to stop the odors. It also consistently modified and replaced the equipment and capabilities of the plant in attempt to stopthe odors. The Residents sued the Sewer District in 1994. They brought a temporary nuisance claim for general damages and partial andtotal taking claims in inverse condemnation. In their petition, they alleged the Sewer District negligently operated the plant in adangerous condition. Thus, they appeared originally to have intended to litigate a tort claim for their personal injuries undersection 537.600.1, RSMo 1994, in addition to a condemnation claim for their property damage. The trial court found the plantwas in a “dangerous condition at the time of the injury due to offensive, noxious and potentially dangerous emissions emanatingfrom defendant’s plant.” It found the Residents’ physical injuries and their loss of the use and enjoyment of their homes were”directly attributable and resulted directly from the dangerous condition of defendant’s treatment plant.” The trial court also foundthe dangerous condition created a reasonably foreseeable risk of injury of the kind incurred and the Sewer District knew of thedangerous condition in time to have taken measures to protect against it. It never found, however, the Sewer District actednegligently, nor do the Residents make any such claim on appeal. The trial court awarded all the Residents who suffered physical injuries from the odors per diem compensation for their physicalsuffering and loss of the use and enjoyment of their property. It appears the award was based on inverse condemnation, asopposed to a personal injury tort, because the trial court concluded, “the doctrine of sovereign immunity is inapplicable to plaintiffs’claim,” which the Residents reiterate on appeal. It also concluded the Residents amended their pleadings at the end of trial to relyexclusively on inverse condemnation. This conclusion seems consistent with the position of the Residents on appeal that theybrought a nuisance claim only for the loss of use and enjoyment of their property caused by the odors. On appeal, the Residentsdisclaimed that sovereign immunity or negligence mattered to their claim for inverse condemnation. They also explicitly assertedthat whether the sewage plant was negligently operated in a dangerous condition was immaterial to their inverse condemnationclaim. Finally, at oral argument, counsel for the Residents admitted he abandoned a negligence suit based in tort before trial beganin this case. By emphasizing their property damage, amending their pleadings to conform to an inverse condemnation case, and expresslydisclaiming negligence and sovereign immunity, we find the Residents abandoned their nuisance claim for personal injury both attrial and on appeal. We also find it significant the trial court, while finding a dangerous condition, notice, foreseeablility, andcausation under section 537.600.1, never found the Sewer District acted negligently. Accordingly, we do not review the judgmentof the trial court as one awarding damages for personal injury based on tort principles. Instead, we review it as one awardingdamages for property injury based on principles of inverse condemnation. The judgment of the trial court will be sustained “unlessthere is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law,or unless it erroneously applies the law.” [FOOTNOTE 1] II. NUISANCE CLAIMS AGAINST A PUBLIC ENTITY 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. The focus is defendant’s unreasonable interference with the use of and enjoyment of plaintiff’s land . . . The unreasonable use element of nuisance balances the rights of adjoining property owners. [FOOTNOTE 2] The Sewer District does not contest their plant constituted a nuisance, so we accept the implicit finding by the trial court that theplant did constitute a nuisance. In general, plaintiff in a successful nuisance case can recover the diminished value of its property,”for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment andoccupancy of his home, as well as for any actual injury to his health or property caused by the nuisance.” [FOOTNOTE 3]We reiterate the Residents only claim is that the odors caused them to lose the full use and enjoyment of their property. Absent aclaim for personal injury and a waiver of sovereign immunity under section 537.600.1, recovery for nuisance is more limited when,as here, a public entity is the defendant. In Heins Implement v. Highway & Transport Commission, we noted, “when privateproperty is damaged by a nuisance operated by an entity having the power of eminent domain, the proper remedy is an action ininverse condemnation.” [FOOTNOTE 4] The Residents, therefore, are constitutionally entitled to just compensation from the Sewer District.Article I, section 26 of the Missouri Constitution provides, “that private property shall not be taken or damaged for public usewithout just compensation.” If a public entity permanently damages property rights of plaintiff, then it is liable for the fair market value lost in thatproperty. [FOOTNOTE 5] “The fair market value of land is what a reasonable buyer would give who was willing but did not have topurchase, and what a seller would take who was willing but did not have to sell.” [FOOTNOTE 6] “The value compensable is only that valuewhich is capable of being transferred from owner to owner and thus of exchange for some equivalent.” [FOOTNOTE 7] If the public entityonly temporarily damaged the property rights of plaintiff, by contrast, the loss in market value of the property is not the propercriterion. [FOOTNOTE 8] Instead, the proper measure is the “diminution in value of the use of occupancy of the property for [the] period”taken or damaged. [FOOTNOTE 9] Usually, this value is equivalent to the rent that probably could have been obtained for suchperiod. [FOOTNOTE 10] In City of Cape Girardeau v. Hunze, this Court agreed: Where land is taken, not to be held permanently, but only for temporary use, the measure of compensation is not the market value but what the property is fairly worth for the time during which it is held, and the same rule applies where property, no part of which is taken, is temporarily injured. The criterion for determining the compensation is held, in some cases, to be the rental value of the property. [FOOTNOTE 11] Whether permanent or temporary the lost value of the property for the appropriate period of time must be shown. A calculation ofdamages is also affected by whether the odors constituted a partial taking of plaintiff’s property rights. Missouri recognizes thatthe taking or damage of only part of plaintiff’s property by a public entity may cause consequential damage to plaintiff’s remaining property. [FOOTNOTE 12] Thisconsequential damage is in addition to the value of plaintiff’s property actually [permanently or temporarily] taken ordamaged. [FOOTNOTE 13] These damages are also measured by the depreciation in value of the remaining property. [FOOTNOTE 14] Recovery for a physical injury and loss of the use and enjoyment of property itself is not appropriate for an inverse condemnationclaim, although such injuries may be relevant to calculating the lost value of the property. [FOOTNOTE 15] Therefore, the trial courterroneously applied the law to award the Residents damages for their physical suffering and loss of the use and enjoyment of theirhomes apart from its effect on the market or rental value of their property. Furthermore, no evidence of any kind was presentedabout the value of the Residents’ property. The Residents did not testify what they paid for their property interest, nor did theyoffer testimony from a property valuation expert. In fact, shortly after trial began the Residents expressly decided against suchtestimony. The only evidence showed their physical injuries and the subjective use and enjoyment they lost in their homes due tothe odors. Accordingly, we also find no substantial evidence supports the damages awarded by the trial court. Consequently, weneed not determine whether the odors, in fact, constituted a temporary or permanent or partial taking, nor discuss how todistinguish among these varieties or combinations thereof. Although the Residents’ inverse condemnation claim is based on nuisance, compensation in this case is not determined accordingto the law of nuisance as recited in McCracken. [FOOTNOTE 16] We hold the attempt to award damages for personal injuries in anuisance-based inverse condemnation case for injury to property is erroneous as a matter of law. The Residents sufferedphysical injury, but their nuisance-based inverse condemnation claim only seeks compensation for injury to their property rights.Accordingly, they are not entitled to recover for the loss of use and enjoyment of their property caused by the odors apart fromhow that loss affects the overall lost value in their property rights. The judgment of the trial court is reversed. All concur. :::FOOTNOTES::: FN1 Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). FN2 Frank, 687 S.W.2d at 880 (emphasis in original). FN3 McCracken v. Swift & Co., 265 S.W. 91, 92 (Mo. 1924). FN4 859 S.W.2d 681, 693 (Mo. banc 1993) (emphasis added); see also Owen v. City of Springfield, 741 S.W.2d 16 (Mo. banc1987). FN5 See City of St. Louis v. Union Quarry & Constr. Co., 394 S.W.2d 300, 305 (Mo. 1965). FN6 Id. FN7 Kimball Laundry Co. v. United States, 69 S. Ct. 1434, 1437-1438 (1949). FN8 See City of Cape Girardeau v. Hunze, 284 S.W. 471, 480 (1926); see also First English Evangelical Lutheran Churchv. Los Angeles, 107 S. Ct. 2378, 2388 (1987) (“temporary takings which, as here, deny a landowner all use of his property, are notdifferent in kind from permanent takings, for which the Constitution clearly requires compensation”). FN9 4 Nichols on Eminent Domain section 12E.01, at 12E-2 (3rd Ed. 1999). FN10 See Kimball, 69 S. Ct. at 1437-1438. FN11 284 S.W. at 480. FN12 See State ex rel. Missouri Highway and Transp. Comm’n v. Beseda, 892 S.W.2d 740, 741 (Mo. App. 1994); see alsoUnion electric Company v. Saale, 377 S.W.2d 427, 429 (Mo. 1964) (stating “just compensation . . . generally speaking, is the fairmarket value of the land actually taken, and the consequential damages, if any, to the remainder of the land caused by the taking”);State ex rel. Missouri Highway and Transp. Comm’n v. Horine, 776 S.W.2d 6, 10 (Mo. banc 1989). FN13 See Kamo Electric Cooperative v. Baker, 287 S.W.2d 858, 862 (Mo. 1956). FN14 See id. FN15 See Stewart v. City of Marshfield, 431 S.W.2d 819, 824 (Mo. App. 1968) (stating that, while relevant to figuring thediminished market value of plaintiffs’ farm, damage to livestock “as such were not recoverable”); see also United States v. PettyMotor Co., 66 S. Ct. 596, 599 (1946) (stating “condemnation proceedings are in rem”). FN16 See supra text accompanying notes 3 & 4.
Byrom v. The Little Blue Valley Sewer District Supreme Court of Missouri Robert L. Byrom, et al., Respondents, v. The Little Blue Valley Sewer District, et al., Appellants. No. SC82039 Appeal From: Circuit Court of Jackson County, Hon. Jack E. Gant Handdown Date: April 25, 2000 Counsel for Appellant: Spencer J. Brown, Brett C. Coonrod and Thomas F. Gordon Counsel for Respondent: Jimmie D. James and M. Ellen Bigge
 
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