# City of Springdale v. Weathers > Supreme Court of Arkansas · January 16, 1967 · 241 Ark. 772 URL: https://www.frixlaw.com/law-library/cases/9680613 ## Case - **Full name:** City of Springdale, Ark. v. Sam Weathers Et Ux - **Court:** Supreme Court of Arkansas - **Decided:** January 16, 1967 - **Citations:** 241 Ark. 772; 410 S.W.2d 754; 1967 Ark. LEXIS 1350 - **Precedential status:** Published - **Opinion:** Dissent by Fogleman - **Judges:** Ward, Fogleman, Brown, Jones - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680613 ## Opinion text John A. Fogleman, Justice, dissenting. While the cases cited by the majority to support their position as to the time of accrual of the cause of action in a case such as this are in tort, based on negligence, I concur in their position as to the beginning of the running of the statute of limitations, i. e., at the- time when it can be ascertained with reasonable certainty that pollution of the stream will result in-a nuisance of a permanent and continuous character, as this indicates an intention to take a permanent right to so pollute the stream. See McLaughlin v. City of Hope, 107 Ark. 442 , 155 S. W. 910 ; El Dorado v. Scruggs, 113 Ark. 239 , 168 S. W. 846 ; Sewer Improvement District No. 1 of Wynne v. Fiscus, 128 Ark. 250 , 193 S. W. 521 . I see no reason why the same rules governing the accrual of the cause of action for permanent damage applied in tort actions should not also he applied when the permanent damage to the realty is the result of the exercise of the power of eminent domain. Cases decided by this court in which damages were sought by reason of eminent domain have been cited as authority in opinions on appeals where recovery was asked because of permanent damage for tortious action polluting a stream. See, for example, International Shoe Company v. Gibbs, 183 Ark. 512 , 36 S. W. 2d 961 . It is true that the cause of action sometimes accrues when a sewer plant is constructed, as when the design and construction is of such type or nature as to make permanent damage to the land of a lower riparian owner inevitable, as in the McLaughlin and El Dorado cases. But in this case there is substantial evidence to indicate that, in 1937, when this stream was first used as an outlet, no one would have foreseen any pollution or permanent damage to lower riparian owners and an action by the then owners of the Weathers lands would seem to have been, even in retrospect, inevitably unsuccessful. There is substantial evidence in this record from which the jury might have found that appellees’ right to compensation accrued within three years prior to the date of taking, but there is no substantial evidence to support the finding that the “permanent damaging” was in 1963. This record clearly shows that the permanent damage from which the intention to take is inferred was sometime in the period from 1953 to 1962. In considering this facet of the case it must be remembered that the action of the Fluid Milk Control Division of the State Board of Health in December of 1963 does not in any way indicate that this was the date of “taking”. This is simply the time when the Director of that division discovered the situation. The resulting action closing the Grade A operation was not the exercise of the power of eminent domain by the city, nor was it evidence thereof, but it was the exercise of the police power of the State of Arkansas. It must also be remembered that Dr. Dick, the Director of the Division, would not have permitted this dairy operation at any time when the discharge from the Springdale sewer system ran into Spring Creek, regardless of the efficiency of the plant and its operation and regardless of the purity of the water in the stream. A brief review of the testimony will illustrate the reason for my dissent from the holding of the majority. Appellee Sam Weathers testified in part, in substance: There was no obnoxious odor and nothing to alert me of the receiving of sewerage when I acquired the first part of the property in 1946. In 1951 I began to use the water for irrigation and my dairy cattle used the creek for water. In 1953 the condition of Spring Creek began to change with the first thing we noticed being an odor and an off color. The pollution worsened constantly until I began to notice dead fish about two years later. When it first started we had about two months in the Fall at the lowest flow and the rest of the year was comparatively clean. The period during which the contamination was obvious began to increase until in about 1961 when we filed our injunction against the City of Springdale it was a twelve-month situation. The odor from my house was unbearable and the cows quit drinking from the stream and they wouldn’t even cross it without forcing them. I couldn’t irrigate from the stream beginning in 1959 because it was so badly polluted. I did make complaints to the City of Springdale in 1952 or 1953 and in the middle nineteen fifties. They did build a new plant in 1957 and after that I filed an injunction suit which ended in a consent decree. It was as bad after they built the new plant as it was before. Under the conditions that prevailed in my dairy in the years 1962 and 1963,1 was not getting maximum utility out of my cows and equipment. The situation got worse and reached its culmination in 1961 when I sought the aid of an attorney. While there was other testimony, none of it supports the jury finding as to the year 1963, even though it is true that one Jack Benton, called by appellees, testified that Mayor Davis of Springdale told him the city had been ordered by the Health Department to buy four miles of land down the creek, and that they had made a deal in February of 1963. This was hearsay admitted over the objection of appellant. He also said that the stream was unusable for him from 1956 on, and the condition on the Sam Weathers property was the same as on his. Mayor Davis did state that the Benton land was acquired and that the Health Department had required the city to buy lands one and one-quarter miles downstream for the sole purpose of additional oxidation ponds. The finding of the jury was based upon an instruction of the court to the effect that permanent damage occurred when the contamination and pollution existed to the extent of denying the landowners the use of the lands for which they were intended and adapted, over the objection of the appellant. The court then submitted an interrogatory to the jury asking them to find the year in which the city permanently damaged the land. I feel that this instruction was inherently erroneous in that the permanent damage occurred when it could have been ascertained with reasonable certainty that there would be contamination and pollution which would result in a nuisance of a permanent and continuous character such as would deny the landowner the use of the lands for which they were adapted so as to affect the market value thereof. In all other respects I concur with the majority. While appellant did not specifically list the lack of substantial evidence to support the 1963 “date of taking” as a point to be relied upon in its original brief, it did list the failure of the trial court to direct a verdict, urging that there was no substantial evidence to support a finding of a date of taking at any time within three years next preceding the filing of the complaint. Appellant then specifically argues the objection to the instruction on the “date of taking”. Although the pleadings were not before the jury, it is not insignificant that in response to a motion to make the complaint more definite and certain, appellant alleged a date of taking in October, 1961. A second amendment to the complaint might be construed to allege a date of taking in 1954. While it could be urged, with some justification, that there is still substantial evidence that the permanent damage occurred at some other time within three years next preceding the filing of the complaint, still this question was not submitted to the jury. Its finding as to the year the permanent damage occurred, based on the erroneous instruction, makes the conclusion that the jury based its finding on the action taken by Dr. Dick, rather than on the acts of appellant, inescapable. I, therefore, respectfully dissent from the holding of the majority and I would reverse and remand for a new trial. I am authorizd to state that Justice Brown joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680613. Public record. Not legal advice.