
    
      No. 25,883.
    J. A. Knotts et al., Appellees, v. The City of Coffeyville, Appellant.
    
    SYLLABUS BY THE COURT.
    1. Damages' — Flooding Land Witíi City Sewage — Measure oj Recovery. In an action against a city for damages caused by the city so constructing a sewer as to divert sewage into a stream running across the plaintiffs’ land, a trial resulted in a verdict for the plaintiffs. A new trial was granted upon the sole item of damage to the land. On the new trial damages were allowed for the loss of the usable value of the land, for the expense of procuring a new water supply, and for discomfort resulting from the sewage. Held, No error was committed.
    2. Same1 — Loss oj Usable Value — Excessive Damages. The amount allowed for the loss of the usable value of the land was not excessive.
    3. Municipal Corporations — Discharge oj Sewage — Liability jor Damages. That a city sewer becomes clogged by the wrongful acts of some unauthorized person does not justify the city in diverting the sewage over the adjoining land of another without paying to the .latter compensation for the damage sustained by him.
    Appeal from Montgomery district court; Joseph W. Holdren, judge.
    Opinion filed April 11, 1925.
    Affirmed.
    
      A. R. Lamb, of Coffeyville, for the appellant.
    
      Thurman Hill, of Independence, for the appellees.
   The opinion of the court was delivered by

Marshall, J.:

The plaintiffs sued to recover damages occasioned by the city so constructing a sewer as to cause sewage to flow into an open stream running across land owned by the plaintiffs. They recovered judgment, and the defendant appeals.

The facts shown by the evidence were that the plaintiffs owned about 100 acres of land adjoining the city on the southwest; that the city had constructed á sewer on a street which ran east and west through the city; that the sewer became so clogged that sewage could not flow through it; that the city, to remedy the defect in the sewer, constructed a “by-pass” and diverted the sewage to a creek running through the plaintiff’s land; that the sewage caused the water in the creek to become foul; that the creek overflowed part of the land of the plaintiffs and deposited sewage thereon, which resulted in the loss of part of the crops and in the loss of the use of pasture land; that the plaintiffs suffered great personal inconverbenee caused by the sewage; that they were compelled to secure a new source of supply of water by attaching to the water pipes of the city; and that they filed with the city clerk a claim for the damages sustained by them.

There were two trials of this case in the district court. The first trial resulted in a verdict for the plaintiffs for $2,500. Special questions were then answered by the jury as follows:

“1. Q. If your general verdict is in favor of the plaintiffs and against the defendant city, what do you find to be the fair and reasonable market value of their land immediately prior to the injury complained of? A. $200 per acre.
“2. Q. If your general verdict is in favor of the plaintiffs and against the defendant city, what do you find to have been the fair and reasonable market value of the land after the injury and at the end of four months after said sewer was diverted? A. $175 per acre.
“3. Q. If your general verdict is for plaintiffs and against the city, what, if anything, do you allow plaintiffs as damages for expense of securing a new water supply? A. Nothing.
“4. Q. If your general verdict is for plaintiffs, what do you find is the fair, reasonable value of plaintiffs’ farm at this time? A. $175 per acre.
“6. Q. Did the defendant offer to construct a water'line from its. main across the farm of the plaintiffs so that they might have city water for domestic and other purposes? A. Yes.”

A motion for a new trial was filed, which was sustained in the following language, as shown by the journal entry of judgment:

"The court, being fully advised in the premises, finds that a new trial should be granted herein upon the sole item of damage to the land of the plaintiffs by reason of the wrongful and unlawful action of the defendant, if any.
“Therefore, it is by the court ordered, decreed and adjudged that the defendant be granted a new trial upon the item of damages to the land belonging to the plaintiffs, to which the plaintiffs at the time duly excepts and excepted.”

Upon the second trial a verdict was returned for the plaintiffs for $1,550, and special questions were answered as follows:

“1. Q. If you find for the plaintiffs, what amount, if anything, do you allow them for the loss, if any, of the usable or rental value of plaintiff’s land? A. $400.
“2. Q. If you find for the plaintiffs, what amount, if any, do you allow them for damages in securing a new water supply? A. $150.
“3. Q. If you find for the plaintiffs, what amount, if any, do you allow them for the discomfort suffered as a result of noxious odors emanating from said stream? A. $1,000.
“4. Q. Did the defendant offer to construct a water line from its main across the farm of the plaintiffs so that they might have city water for domestic and stock purposes? A. No.
“5. Q. Could plaintiffs by fencing their pasture have used said pasture for stock in the summer of 1922? A. No.”

Upon the motion for a new trial filed after the second verdict was rendered, the following order was made:

“The above-entitled cause comes on to be heard upon the motion of the defendant herein for a new trial, and the court having heard the argument of counsel for the defendant, and plaintiffs being duly advised in the premises, finds that the verdict of the jury is excessive, and that the plaintiffs should remit thé sum of $500 from the item allowed by the jury for discomfort and inconvenience, and thereupon the plaintiffs in open court offer to remit said sum of $500, and the motion of the defendant for a new trial herein is by the court overruled and denied.”

Judgment was then rendered in favor of the plaintiffs for $1,050.

The defendant claims that “the court erred in refusing to limit the issues.” The issues submitted on the first trial were fairly stated in the answers of the jury to the special questions. The issues submitted on the second trial were also fairly stated by the answers of the jury to the special questions. The defendant objected to the court submitting more than damage to the land. What was included in the answers to the special questions on the last trial? Loss of the use of the land, the expense of securing a new water supply, and discomfort caused by the sewage in the creek. None of these, strictly speaking, was damage to the land in the sense that the soil was removed, material taken from the real estate, or injury to buildings or other property on the land; but each of the three items named arose out of the injury to the land caused by sewage flowing through the stream thereon. That the plaintiffs had a right to recover for those items cannot be seriously questioned. That they' grew out of the injury to the land must be conceded. The restriction as to the issues should be liberally construed, and the interpretation placed on that restriction by the trial court on the second trial should be upheld unless it clearly appears to be erroneous. Applying this rule of construction, it does not appear that the defendant has any just cause for complaint.

The defendant urges that “the amount allowed for damages to usable value of farm is excessive and not sustained by the evidence.” The plaintiffs, by the wrongful act of the defendant, lost their water supply for their live stock, of which they had a goodly number, and lost the water for use in their home; they lost the pasturage of a portion of their land, and they lost a portion of the crops on some of the land. There was evidence which tended to show that the rental value of the pasturé was $48 a month, and there was evidence to show that the polluted water caused the death of some of their live stock, although nothing was allowed for that item. The use of the farm comprehended the use of the land for growing crops, the use of the stream for water for live stock, the use of the wells for water for the home, and the use of the property as a place in which to live. Some of these items were not capable of being measured in dollars and cents. The rental value of the land could have been proved, but that would not have measured the damage to the plaintiffs. They were not compelled to abandon their home and then accept as damage the rental value of the entire farm for the period that they were compelled to remain away from it. The court is unable to see why the judgment should be disturbed on account of the amount allowed by the jury for the loss of the usable value of the farm.

The defendant attempted to prove that the sewer became clogged as the result of the wrongful acts of the Missouri Pacific Railroad, of which the defendant had no knowledge and to which the defendant did not consent. That evidence was excluded. Whatever may have been the truth concerning that matter, the defendant was not justified in diverting the sewage from the city into the stream on the land of the plaintiffs without compensating them for the damage they sustained. It was a taking of their property without compensation.

The judgment is affirmed.  