Brown v. County Commissioners Of Scioto County

622 N.E.2d 1153 (1993)

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Nature of the Case

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Facts

In 1968, Ds and the state entered into an agreement in which the county would construct a wastewater treatment facility upon land owned by the state near Lucasville, Ohio. In 1969, the state leased the land to appellees to operate and maintain the sewage treatment plant for fifteen years. For the sum of $50,000, Ps purchased a house located approximately one-quarter of a mile from the sewage treatment plant. They moved into the house on March 12, 1978. Prior to moving, they did not perceive any odor from the plant. However, within the first week, after they moved in, they noticed some odor coming from the plant. During Ds' period of operation of the plant, the condition of the plant was deplorable. The Ohio, Environmental Protection Agency, cited the plant for violations concerning the level of bacteria and suspended solids contained in the effluent discharged into an adjacent stream. Most of the equipment was old and worn out. A comminutor, which was utilized to break down the raw sewage, had not been operable for several months, and the screen used to filter the sewage through the treatment process had a large hole in it. One of the two oxidation ditches was idle, and the other ditch was only operating at twenty-five to fifty percent of its capacity. The idle oxidation ditch had become septic, breeding anaerobic bacteria that emitted the gaseous substance causing the noxious odors. They rarely stocked an inventory of spare parts for the plant machinery. Consequently, there were occasions when an old part malfunctioned and the plant would be shut down until a new part was back-ordered. The plant shut-downs caused untreated sewage to remain idle and contributed to the noxious odors. The odor was not very noticeable the first few years but became worse and more frequent during the early 1980s. The odor was particularly bad when the weather was hot and humid or when the wind was blowing in a particular direction. The worst period for the noxious odors emanating from the sewage treatment plant was the summer of 1983, when there was an odor [comparable to having their septic tank cleaned. The extreme odor during that period lasted twenty-four hours every day and prompted the Ps to file their initial complaint. The odors from the plant increased the number of insects of all kinds on Ps' property, requiring them to call an exterminating company two or three times a month during one period of time. The Browns became nauseated due to the odors, and in 1984, a physician indicated that it was a 'probability' that appellant's stomach problems, including loss of appetite, were related to the treatment plant odors. The odors made it uncomfortable and, at times, impossible to be outside their house. Although unsure of the exact date, P had their home listed for sale at $65,000 and a woman interested in purchasing it was driven away by the plant odors. In 1983, Ps filed a complaint seeking damages and injunctive relief against Ds. Ps' third amended complaint alleged that Ds had created a nuisance and trespassed on their property by negligently and/or willfully and wantonly constructing, operating, and maintaining a sewage treatment plant in the immediate vicinity of Ps' real property. As a result of Ds' tortious conduct, noxious gases and odors were emitted from the plant which settled on and diminished the value of Ps' and their neighbors' property, created health hazards, denied them the use and enjoyment of their property, and caused extreme emotional and 'intestinal' distress. Ps sought injunctive relief against 'each defendant' and compensatory and punitive damages against Ds in the total amount of $500,000. Ds filed a motion for summary judgment based upon the following grounds: (1) P lacked standing; (2) there was no government 'taking'; (3) there was no trespass; (4) the nuisance claim was not actionable; (5) the entire action was barred by the statute of limitations; and (6) the issuance of injunctive relief was not warranted. The trial court granted Ds' motion for summary judgment and P appealed.