Crawford v. Town of D'Lo

Ethbidgb, J.,

delivered the opinion of the court.

Miss Emma Crawford files suit against the town of D’Lo, alleging that she was the owner of a place in the town of D’Lo, and that the municipality of D’Lo in March, 1917, through its hoard of mayor and aider-men, passed an ordinance preventing swine or hogs from running at large, and soon thereafter built a small pen or pound within the corporate limits of said municipality and about twelve feet from the residence of the plaintiff, on a small plot of ground owned by the municipality, over the protest of the plaintiff, and that in March, 1917, the officers of said municipality impounded a hog in said pound or pen, which hog was at the said time sick with some disease and died, and was not removed from said pound by the municipal authorities, though notified that the said hog was dead and requested to move same, and that it remained on *34 said lot near said plaintiff’s residence for about four days, and that it made such offensive odors as were almost unbearable, and caused plaintiff to be uncomfortable, and tbe said odors were offensive and nauseating, causing plaintiff great discomfort and bodily suffering and great mental anguish, so much that she was made sick thereby; that she protested against the impounding of said animal in said pound on account of its distance from her residence, and almost immediately after said animal died she notified the mayor of said municipality of the death of said animal and requested its immediate removal, but that her said request was willfully ignored, and said request was again and again made to said mayor, but the dead animal was suffered to remain for a period of ninety-six hours. She brought suit for one thousand dollars damages. The town filed a demurrer to the declaration on the following grounds: First, the declaration shows that the pen or pound mentioned was built or caused to be built in conformance with an ordinance passed by the mayor and board of aldermen; second, the declaration made said ordinance the basis of plaintiff’s suit, and that the defendant is not liable for the reason that the enforcement of said ordinance is committed to the marshal of the municipality; third, because the municipal corporation, being a governmental agency, is not liable for damages sustained by the . tort of any of its officers or agents, unless it is made so by its charter or some statute to that effect, which is not true in this instance; fourth, because a municipal corporation cannot be held liable for the acts or omissions of its marshal, who is a public officer and whose duties are public and fixed and limited by law.

The court sustained the demurrer, and final judgment was entered for the town, from which judgment this appeal is prosecuted. We think it is a settled law *35 in this state that the municipality is liable for damages in cases of this kind if it fail to remove the cause of the nuisance after due notice. In the case of Vicksburg v. Richardson, 90 Miss. 1, 42 So. 234, it is stated that a city is liable for damages if it fail after notice to prevent private sewerage being emptied into the gutters along the sides of its streets whereby the offal is carried to a vacant lot, creating a nuisance and rendering a nearby dwelling house uninhabitable. • In that case the same kind of damage was done as in this case; the offensive odors rendering the dwelling' uninhabitable. In that case the court said:

“The city officers were repeatedly notified of this, but took no steps to remedy the evil. If the city had regular sewerage, it could not, without • liability, so debouch its contents, and it cannot permit connection of private sewerage with its gutters to effect the same injury. [Cites authorities.] A municipality cannot avoid its ministerial duty to prevent befoulment of its own gutters after notice of the nuisance so created.”

It will be noted that the nuisance in the present case was caused by the town from the use of its own property; the animal dying being impounded on the property of the town through the act of the town over the protest of the plaintiff. It was wrongful and negligent to build the pound or pen so close to the' plaintiff’s residence, and it was actionable negligence to fail to remove the dead animal after notice of its death. It follows that the judgment must be reversed, and the cause remanded for a new trial.

Reversed and remanded,