Udall & Udall, of Tucson, for appellant.
Darnell, Robertson & Holesapple, Knapp, Boyle, Bilby & Thompson, of Tucson, for appellees.
Phelps, Justice. Stanford, De Concini, and La Prade, JJ., and Faires, Superior Court Judge, concur. Udall, C. J., having disqualified, C. C. Faires, Superior Court Judge, of Gila County, was called to sit in his stead.
[74 Ariz. 100] This is a case in which a number of persons joined as parties plaintiff in an action against the city of Tucson to recover damages alleged to have been sustained by them as a result of water being cast upon their premises due to the closing of an adjacent arroyo and negligently failing to construct openings or conduits of sufficient size to adequately carry away the water which they say would otherwise have flowed unobstructed down through the arroyo. Judgment was rendered in favor of plaintiffs from which this appeal is prosecuted.
The city of Tucson did the construction work of which complaint is made, between February 1925 and February 1931. It undertook to make the improvements upon the written petitions of the property owners along the arroyo, some of whom are plaintiffs in the instant case.
The arroyo in question runs in a northwesterly direction in down town Tucson and drains a watershed of approximately 21 square miles lying in a southeasterly direction from the area alleged to have been affected by such surface flood waters. These floods occur intermittently and only
when the rainfall is heavy in all or part of the above mentioned watershed. The first flood occurred in 1933. Repetitions thereof occurred in 1935, 1937, 1939, 1940, 1943 and again in 1948, the latter being the subject of this litigation.
In 1940 after suits had been filed the city made settlements with most of these plaintiffs who were then owners of the property now involved and which was flooded at that [74 Ariz. 101] time. After the 1943 flood, actions were brought by a number of property owners including most of the plaintiffs in the instant case based upon the negligence of the city in failing to provide adequate openings to contain and carry away the flood waters flowing down the arroyo without damage to the plaintiffs. The plaintiffs prevailed in those actions and the judgments of the trial court were affirmed by this court in the cases of City of Tucson v. O'Rielly Motor Co., 64 Ariz. 240, 168 P.2d 245; City of Tucson v. Apache Motors Co., 64 Ariz. 251, 168 P.2d 253. The outlets provided by the city to carry the water away consisted of two concrete culverts 10 X 10 feet which were laid in the bed of the arroyo or on a level therewith.
The arroyo has a large swale or lower area on both sides of the actual stream bed arising gradually to slightly higher land. The evidence does not disclose just how wide the swale is but the property of plaintiffs is situated in the immediate vicinity of the stream bed and within the adjacent swale area. The culverts have been covered and buildings have been erected over them by some of the plaintiffs.
The city has presented a number of assignments of error for our consideration, the first of which is that the court erred in entering judgment for plaintiffs and in denying its motion for judgment notwithstanding the verdict. This assignment of error is based upon the proposition of law that the construction of the culverts in question was permanent in character and therefore constituted a permanent nuisance. This being true, the city claims that plaintiffs had but one cause of action against the city which they exercised in 1943. Plaintiffs, on the other hand, claim that they have a new cause of action for each successive injury sustained.
We believe the general rule to be that if a nuisance falls within the definition of a permanent nuisance ordinarily the cause of action arises immediately upon the creation of the nuisance and all damages past, present and future, must be recovered in one cause of action and that the measure of damages to the realty is the difference between the market value of the premises immediately before and its market value immediately after the completion of the structure creating the nuisance. This is not always the rule, however, as will be hereinafter shown. On the other hand if the nuisance is temporary or continuing, a cause of action arises upon the occurrence of each successive injury sustained. Much confusion has arisen in the various jurisdictions of the United States as to just what constitutes a permanent nuisance as distinguished from a temporary or continuing nuisance so as to entitle the injured person to recover all damages sustained in one cause of action and what elements must concur to start the statute of limitations to running against the injured party. Perhaps it might be more accurate to say that the confusion arises more from an application [74 Ariz. 102] of the facts in each case to the rule of law defining a permanent nuisance.
We said in City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30, 35, that:
"* * * if a nuisance is of such a nature that although the thing itself may continue, yet its injury to another may be abated by human agency, and the owner or perpetrator of the nuisance fails to abate it, the nuisance is a continuing one, and one action does not exhaust the remedies of the parties injured. If, however, the thing is of such a character that it cannot be maintained without continuing to be, in the legal sense, a ...