
    CONSUMERS LIGHT & POWER CO. v. HOLLAND.
    No. 16231
    Opinion Filed March 9, 1926.
    Rehearing Denied June 8, 1926.
    1. Action — Splitting Cause of Action— “Permanent Injury” to Home Owner from Operation of Spray Pond of Electricity Plant.
    An injury in the' nature of personal annoyance and inconvenience to an owner of real estate, in the possession of said proxi-erty. occasioned by the construction and operation of a spray p< nd by a public utility, as a part of its plant for generating and distributing electric current, there being .no negligence charged against such public utility in the construction or operation of said spray pond, isj a permanent injury. . Th« damages occasioned by such injury may al' be recovered in one action, and successive actirns therefor may not be maintained.
    
      2. Same — Limitation of Actions.
    A cause of action for injury occasioned by such operation of such spray pond arises, and the statute of limitations begins to run, from the time the public utility company begins to operate such spray pond and occasions such injury.
    (Syllabus by Foster, O.)
    Commissioners’ Opinion, Division No. 5.
    Error from District Court, Carter County; Asa E. Walden, Judge.
    Action by T. L. Holland against the Consumers Light & Power Company. Judgment for plaintiff, and defendant brings error.
    Reversed.
    Rainey & Flynn. Lyd’ick, McPherren & Wilson, and Champion, Champion & George, for plaintiff in error.
    Ledbetter & Brown, for defendant in error.
   Opinion by

FOSTER, C.

Tbis action was commenced by tbe defendant in error, hereinafter called plaintiff, in tbe district court of Carter county on tbe 16tb day of May, 1923, against tbe plaintiff in error, hereinafter called defendant, to recover damages consisting of tbe alleged depreciation in tbe value of certain property owned and occupied by tbe plaintiff during a period of two years nest preceding the institution of tbe action, and for annoyance, discomfort, and inconvenience because of tbe construction and operation by the defendant of a spray pond.

There were two causes of action incorpora'-' ed in plaintiff’s petition. In tbe first cause of action the plaintiff s< light a recovery for injury to bis property on account of tbe operation of the spray pond during tbe two years immediately preceding the institution of tbe action, and in bis second cause of action lor personal annoyance and inconvenience during tbe same period of time.

Tbe defendant demurred to tbe petition and each cause of action thereof, upon the ground that tbe petition showed on its face that plaintiff’s aetii n was barred by ibe statute of limitation, which demurrer was overruled, and exceptions reserved. Thereupon tbe defendant filed its answer, consisting, among other things, of a general denial of any damage to plaintiff’s property and a plea of the statute of limitation. A reply was filed by tbe plaintiff, consisting of a general denial, and upon these issues tbe cause ’was submitted to tbe court and’ a jury. The jury found that plaintiff should recover nothing- upon bis first cause of action, but returned a verdict upon bis second cause of action against the defendant in tbe sum of $S00. By demurrer to tbe evidence of tbe plaintiff, which was overruled, the defendant again interposed tbe bar of tbe statute of limitation as a defense to plaintiff’s action. Motion for a new trial was filed by tbe de:endant, heard, and overruled, and tbe matter comes on regularly to be beard in this court on appeal by tbe defendant from said judgment.

Numerous specifications of error are relied on by tbe defendant for a reversal of the judgment, but in our view of tbe case it is necessary only to consider whether or not the trial court erred, as a matter of law, in refusing to sustain defendant’s plea of tbe statute of limitation.

Tbe record discloses that tbe defendant was a public utility, owning and operating an electric lighting plant in the city of Ard-more and engaged in the business of genera ting and distributing electric, current to its patrons residing in said city. In tbe month of October, 1918, tbe delendant constructed on lots 4, 5, and 6, block 348, in tbe city of Ardmore and as a part of its plant for tbe generation of electric current, tbe spray pond in question. It was located about tbe middle of tbe sout-h line of block 348, and consisted of a concrete basin built into the earth, 86 feet wide, 110 feet long, and about 4 feet deep. Tbe water from a turbine engine was pumped from tbe main plant of the defendant, on the block immediately to tbe southeast of block 348, through a 12-inch line to this spray pond, where the water was forced by pressure into perforated pipes, located in tbis spray pond, where tbe water comes out as fine spray, cools, and falls back into tbe spray pond, and from there goest back to the boilers located in the main plant.

Tbe plaintiff owns and occupies a bouse situated on lot 12, block 461, in the city of Ardmore. It is located on the northeast corners of block 461 and southeast of tbe spray pond of the defendant, a distance of some 160 feet across Third avenue. Plaintiff filed bis action on May 16, 1923. and in bis amended petition, which was filed September 6, 1923, charged that because of tbe manner of the operation of said spray pond, mist and vapors were blown across Third avenue and precipitated upon tbe property of tbe plaintiff, causing depreciation in the value thereof in the sum of $1,900, and causing annoyance. discomfort, and inconvenience to him and tbe members of bis family in tbe further sum of $2.000 during tbe two years immediately preceding tbe filing of tbe action.

Tbe only question- necessary to determine in disposing of tbis case, is whether or not the injury occasioned to tbe plaintiff, by the construction and operation of tbe spray pond by tbe defendant, was such that the plaintiff might recover all of his damages occasioned thereby 'in one action. Plaintiff asserts the right to maintain successive actions, on tbe ground that the injuries of which be complains resulted from tbe manner of the operation of the spray pond and not from its construction. He contends that although tbe structure under consideration may be considered in the nature of a permanent improvement, yet be has a right to maintain successive actions for injuries resulting to him, from tbe operation of tbe improvement, where tbe cause of tbe injury depends for its continuance upon tbe acts of persons from day to day. and he cites authorities from other jurisdictions, which, it is claimed, support the rule contended for. In this state, however, the mere operation of a legally non-abatable structure, permanent in its nature, does not give rise to successive actions for injuries resulting from the construction and operation of such improvements, unless it is shown that the injuries are due to' negligent construction or operation, where the injury is the obvious or necessary result, assuming the continuance of ordinary conditions, of the erection of the permanent structure.

The record shows and it is not disputed that, in the generation of electrie current by means of a turbine engine, it is necessary to continually cool the water pumped from the engine by spraying the same into the air, and that in no other way could the pond be operated so as to cool the water sufficiently to keep the steam turbine in operation. It is likewise undisputed that the use of a turbine engine and spray pond is the most economical method known for the generation of electric current. Therefore the injuries of which the plaintiff complains in the instant suit were obviously certain to occur with the continuance or recurrence of ordinary conditions at the time defendant erected its improvement in 1918, and began the operation thereof.

It is not claimed that the defendant was guilty of any negligence in the construction of the improvement so as to make it liable, by the operation of the spray pond, for the continuance of a pre-existing negligent act, occurring when the improvement was constructed. While it is true there is some evidence that the defendant might have used a different type pf machinery for the generation of electric current, less economical in its operation, it is not contended that its failure so to do under the circumstances amounted to negligence.

In must be bonne in mind that the defendant, by the laws of Oklahoma, is made a public utility and subject to the regulation and control of the Corporation Commission of this state, and it is not to be presumed, therefore, that the conditions of which plaintiff complains will in the future be abated by the voluntary act of the defendant, since the cause of plaintiff’s injury cannot be regarded as a negligent condition in the structure which the defendant would seek to remedy. The effect, therefore, of the rule contended for by the plaintiff would be to involve the defendant in continuous litigation to protect its rights without any negligence on its part being made to appear. Tha rule applicable to this situation is stated in City of Mangum v. Sun Set Field, 73 Okla. 11, 174 Pac. 501, in the first paragraph of the syllabus as follows:

“The injury occasioned to a riparian owner by the operation of a sanitary sewer system of a municipal corporation, emptying its sewage into a water course, thus polluting such water course so as to constitute a nuisance, there being no negligence charged against such municipal corporation in the construction and operation of said sewer system, is a ‘permanent injury.’ The damages occasioned by such injury may all be recovered in one action, and successive actions therefor may not be maintained.”

The second paragraph of the syllabus reads as follows:

“The cause of action for injury occasioned by such operation of such sewer system arises and the statute of limitation begins _ to run from the time the municipal corporation begins to oiaerate such sewer system and occasions such injury.”

Continuing, our court said in the body of the opinion:

“In the instant -case it had been made to appear that there was want of care in the construction and operation of the sewer system, or that by the exercise of ordinary care injury could have been avoided, the rule laid down in City of Ardmore v. Orr[35 Okla. 305, 129 Pac. 867], supra, would apply, and the plaintiff could maintain successive actions for injuries recurring within the period of limitation. We cannot presume negligence. As the injury.arose from a permanent cause, and necessarily results from 'the continuance of ordinary conditions, if the plaintiff may maintain successive actions, a new cause of action would arise each day. The plaintiff and defendant could therefore be involved in continuous litigation to protect their respective rights without any negligence on the part of the defendant being made to appear, * * * It does not appear that the injury was occasioned by any negligent construction of the sewer which might be remedied, as in the case of City of Ard-more v. Orr, supra. It therefore became and was a permanent nuisance under the reasoning of any of the varying lines of authorities above referred to, and particularly under the rule in the Pahlka Case, and the measure of plaintiff’s damages was the depreciation of the value of his property because of such nuisance. The damages could all be recovered in one action, and plaintiff’s cause of action arose when the defendant constructed and began to operate such sewer. We therefore conclude that the plaintiff’s cause ef action was barred by the statute of limitation.”

This court in the above case cited and followed the earlier case of Pahlka v. C., R. I. & P. Ry. Co., 62 Okla. 223, 161 Pac. 544, quoting from tliat case this statement with approval:

Note. — See under (1) 1 O. .T. pp. 1119, 1120 § 303; anno. L. E. A. 1916E, 1050; 3 A. L. R. 083; 1 E. C. R. p. 350; 1 R. O. R. p. Supp. p. 112. (2) 37 C. J. p. 887 § 251.

‘‘We must hold that when a cause of an injury is abatable, either by an expenditure of labor or money, -it will not be held permanent, it being clear that the abatement of the causal negligent condition in a structure, rightfully maintained except for the negligence, is consistent with the rightful use and maintenance of the structure if the structure is otherwise permanent in its nature; * * * and that, in cases of injury from permanent cause, where the injury is the obvious or necessary result, assuming the continuance or recurrence of ordinary conditions, the cause of action arises at the time of the creation of the cause, viz., the construction of the improvement.”

Whether the injuries which plaintiff might sustain were in the nature of personal annoyance and inconvenience while in the lawful occupation of his property, or in the nature of a phs'sieal injury to the property itself, they were obviously certain to occur and equally capable of estimation at the time of the erection of the improvement, and were recoverable in one action at the time the defendant constructed and began to operate the spray pond.

Under the uncontroverted facts, as disclosed by the record, we conclude that plaintiff’s cause of action was barred by the statute of limitation, and that the trial court erred, as a matter of law, in not so holding.

The judgment of the trial court is therefore reversed, and the cause remanded, with instructions to dismiss plaintiff’s action.

By the Court: It is so ordered.  