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O'brien v. City of O'fallon

OPINION FILED JANUARY 10, 1980.

ROBERT F. O'BRIEN ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF O'FALLON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. STEPHEN M. KERNAN, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant city appeals a judgment entered upon a jury verdict for $30,000 in an action for nuisance brought by plaintiffs-homeowners. Plaintiffs' action was founded upon contamination of a private lake by raw sewage from defendant's sanitary sewer system purposefully discharged by defendant's employees.

Defendant presents two issues for review: "* * * whether the Trial Court erred in allowing the jury to consider diminished market value of the plaintiffs' property as an element of damage," and "* * * whether the trial court erred in granting the plaintiffs' Motion in Limine thereby denying the defendant the right to present evidence as to the reasonableness of its conduct." We affirm.

In 1961 the defendant city installed an "overflow valve" in a sanitary sewer line, the origin of the problem giving rise to this lawsuit. The purpose of the valve was to relieve pressure in the line during episodes of heavy or persistent rainfall. The pressure apparently resulted from infiltration of surface or other unanticipated waters into the system. By opening the valve during periods of heavy rainfall pressure in the system was relieved, but raw sewage was then discharged into a ditch and thence into plaintiffs' lake which is downgrade from the valve.

At the time the valve was originally installed the lake was located on undeveloped land. However, in time the area was developed as residential. In 1969 plaintiffs purchased about half of the lake and two adjacent lots, choosing the site in part for the recreational value of the lake. It was said that the developer represented at the time that the waters of the lake were purer than drinking water. At a cost of between $60,000 and $65,000 plaintiffs built what was described throughout the trial as a luxury type home. Construction began in June 1969 and plaintiffs and their eight children moved into the home in December.

Occasionally during the summer of 1970 plaintiffs became aware of foul odors emanating from the lake. With passing time the odor grew worse and the presence of human waste in the lake waters became unmistakable. Eventually plaintiffs discovered that the cause of the odors and the presence of human waste was the defendant's sewage system overflow valve located about a block and a half distant.

In warmer weather plaintiffs found themselves generally unable to enjoy their property whenever they were indoors with the windows open or outdoors. They were, of course, unable to swim or fish in the lake, although when a freeze would occur they could ice skate on it. Plaintiffs noticed that the lake was rapidly silting in and that a dense growth of grasses was filling in its shallow end. The addition of chemicals to the lake to purify it was of no avail.

In 1971 or 1972 plaintiffs made the first of what was to become a long series of complaints to the defendant city. After a substantial fish kill in the lake, they made the first of what was also to become a long series of complaints to the Illinois Environmental Protection Agency (hereinafter referred to as EPA). After an investigation by the EPA in which test results indicated the presence of raw sewage in plaintiffs' lake, the EPA declared the city in violation of Illinois Pollution Control Board Rules and Regulations, chapter 3, Rule 602(b), prohibiting overflows from sanitary sewers. In or about 1974 the EPA ordered the overflow valve immediately closed. It was not.

In 1975 the city installed a manually operated overflow valve to replace the valve which had been installed in 1961. Rising waters had merely spilled out of the old valve as overflow but by the use of the new valve the discharge of overflow waters could be controlled. The city could determine precisely when and for how long the valve should be opened to allow the escape into plaintiffs' lake of sewage water which would otherwise inundate basements and lower living levels of some dwellings on the sewer line, as had happened on prior occasions. In addition to changing the valve the city attempted to determine the sources of infiltrating waters. By eliminating some of the means whereby nonrefuse water could infiltrate the sewers, the city was able to reduce the amount of water encroaching and thus the amount of time the manually operated valve had to remain open during times of heavy rainfall. The "open" time was reduced to somewhere between one-sixth and one-twelfth of what it was before some of the sources of infiltration were detected. Whereas formerly the valve might normally have been left open for 24 hours (and 72 hours was apparently not unusual), following the diminution of infiltrating waters it had to be left open for from two hours to as little as 30 minutes. The city has thus been successful in diminishing the amount of sewage which is deposited in plaintiffs' lake but has not eliminated completely the intermittent discharge of waste.

The city's engineer testified that, given the difficulty of the task of finding the sources of infiltration in a system like the city of O'Fallon's and the attendant cost, he knew of no time in the future when he could say with certainty that the city would no longer discharge waste into plaintiffs' lake. He indicated that he would not want to testify under oath that the overflow will be eliminated by the year 2001.

The city remains in violation of law. During one occasion of heavy rainfall with sewage backups into homes along the sewer line, the EPA expressly stated that it could not approve the operation of the overflow valve. There is no indication in the record that the city has applied to the Pollution Control Board for a variance as was once suggested by the EPA in correspondence with the city. The city was there advised that if it believed that compliance would impose an arbitrary and unreasonable hardship upon it, it could so apply. There was, of course, no indication whether a variance would have been granted.

Prior to trial both parties filed motions in limine. Plaintiffs asked in their motion, which was subsequently granted, that defendant not be permitted to introduce any evidence of its reasons for diverting the sewage into the lake. Defendant asked in its motion, which was subsequently denied, that plaintiffs not be permitted to put on evidence through their appraiser of the diminution of the market value of their property.

At trial both parties called appraisers as experts to testify to the value of plaintiffs' property. Plaintiffs' appraiser testified that after complete inspection of the property in 1977 he determined that without the presence of foul odors from the lake its fair market value would then have been $130,000. He found that as a result of the odors the value of the property was diminished by $20,000 so that its market value in 1977 was $110,000. He further testified that in 1971 the market value of the property without diminution of value as a result of the odors would have been between $80,000 and $85,000.

Defendant's appraiser, on the other hand, found that the value of plaintiffs' property was in no way diminished by the presence of the odors. After having inspected the exterior of the residence with some glancing in windows the evening ...


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