[78 Ariz. 423] Carl D. Hammond, County Atty., Mohave County, Frank X. Gordon, Kingman, for appellant.
Brice I. Bishop, Phoenix, for appellee.
Defendant (appellant) County of Mohave, one of the political subdivisions of the State of Arizona, has appealed from a judgment for damages in the sum of $5,000 entered against it in favor of plaintiff (appellee) Lila Chamberlin. The case was tried to a jury and a general verdict rendered. No formal written judgment was
entered nor were any special findings made. The parties will be herein referred to as they were designated in the lower court-plaintiff and defendant (or the County).
While the suit was instituted in the superior court in Mohave County, on plaintiff's motion for a change of venue under section 21-106, A.C.A.1939, it was ordered transferred to Yavapai County for trial. Later, by order of court, the [78 Ariz. 424] City of Kingman, a municipal corporation, was made a party defendant to the action under an amended complaint, but at the close of plaintiff's case the court granted the city's motion to dismiss and they are not a party to this appeal.
The amended complaint undoubtedly states a claim for relief upon the theory of inverse eminent domain and it was upon this theory that the case was tried and judgment entered. It is alleged (a) that without instituting condemnation proceedings and without consent of plaintiff the County did appropriate for its own use and benefit certain lands owned by plaintiff by causing sewage effluent to flow upon said lands and pool around the base of her water well, thus contaminating and rendering unusable for domestic purposes the water therein; (b) that this sewage effluent has since said time polluted the air over said lands with foul odors so that plaintiff is unable to enjoy the use of said lands; (c) that these acts of defendant have caused plaintiff's sole water supply to be of no value and thus rendered the land unfit for occupation, and (d) that by reason of the wrongs committed by the County the plaintiff has been damaged in the sum of $10,000 as and for depreciation in the value of her property.
The defendant's answer claims that the complaint fails to state a claim upon which relief can be granted; it makes certain admissions and denials; and sets up contributory negligence on the part of plaintiff in that she or her predecessors in interest had caused an unnatural depression near the well by the removal of sand and gravel from a pit near thereto and that this act was the direct and proximate cause of the sewage effluent pooling on the lands of plaintiff.
Other than objections to the giving or failing to give certain instructions, the principal assignment of error is in substance that the evidence does not make out a prima facie case justifying the permanent relief granted under the theory of inverse eminent domain. A consideration of this assignment requires a careful recitation of the facts.
Plaintiff, Lila Chamberlin, a resident of Kingman, acquired the property in question from F. E. Buchanan, et ux. on January 7, 1948. This land is a portion of the NW1/4 of Sec. 4, Twp. 20-N., R. 17 W., described by lot numbers, comprising approximately 137 acres, situated about 5 miles southwest of the town of Kingman. The southeast portion of lot 3 and part of lot 4 thereof is traversed by U. S. Highway 66 (both the old and new route) which there parallels the west bound track of the A. T. & S. F. Railway. Plaintiff testified that she had never lived upon the property; that it was not bought for a cattle ranch as she owns no cattle, nor has she ever done any farming thereon-though her predecessor utilized a small garden plot and had raised a few chickens; that it was acquired primarily for its value as frontage property along this heavily travelled highway. During the period in question[78 Ariz. 425] the only occupant of her holdings was a tenant operating 'Pete's Drive Inn', an eating place conducted in a 20 X 20 foot frame building. The tenant paid a monthly rental of $50 plus $20 for the adjacent small house in which he lived. The source of domestic water for the tenant's use was a well, located in a northwesterly direction approximately one-fourth mile distant, from which it was piped to a nearby water tank.
Some 3.6 miles northeast of plaintiff's property there is a sewage disposal plant which is located just within the Kingman city limits. In the early days the Santa Fe Railway Company built a sewer line leading to this plant, to care for the sewage from its properties in Kingman. The plant, which now serves all of the inhabitants of Kingman as well as the Railroad,
was rebuilt during the depression days of 1932. Beginning in the year 1936 it was operated by Mohave County until the City of Kingman, after being incorporated on January 21, 1952, took over its operation on July 1 of that year. Apparently it is a badly overloaded plant.
Normally the effluent being discharged from the plant ran into an adjacent settling pool and then on into the nearby large arroyo known as 'Railroad Pass Wash' which it followed for a mile or so before disappearing in its sands as the arroyo does not normally carry a living stream-i. e., it only has running water following a heavy rainfall on the water shed. This was the pattern until some time in the Spring of 1952 (March) when a party employed by the County with a grader bladed out two ditches from the settling pool on down the wash to the neighborhood of plaintiff's land.
Thereafter on May 21, 1952 heavy rains fell and flood conditions ensued, causing some of the sewage effluent to flow down the wash and be deposited in a gravel pit within 25 to 50 feet of plaintiff's well. The sanitary engineering division of the State Department of Health learned of this condition and on May 26th their inspector gave to plaintiff a written notice that she was violating the sanitary code. In the blank therein entitled 'Remarks' it was stated:
'Due to sewage effluent pooled within 40 of well, water must be properly treated for human consumption or another source of ...