State v. City of Bowling Green

C.A. No. 1047; C.P. No. 41531 (Ohio Ct. App. December 22, 1972)

A statute appointing the state trustee of state wildlife gives the state a cause of action in tort against a municipality which destroys that wildlife. The judicial doctrine of governmental immunity does not protect a municipality from a statutory cause of action brought by the state. In addition, the municipal sewage disposal which destroyed the wildlife is merely a ministerial function and is not protected by the immunity doctrine. The municipality could be sued on a negligence or public nuisance theory even in the absence of a statutory cause of action.

Counsel for Appellant
John T. Davidson Assistant Attorney General
William J. Brown Attorney General
Fountain Square
Columbus, Ohio 43224

Counsel for Appellee
C. Richard Marsh City Solicitor
133 North Prospect
Bowling Green, Ohio 43402

POTTER, P.J., & Wiley, J., concur.

[3 ELR 20159]

Brown, J.

This is an appeal by plaintiff-appellant, State of Ohio, hereinafter designated as the State, from a judgment granting the motion of defendant-appellee, City of Bowling Green, hereinafter designated defendant, dismissing the complaint and entering the [3 ELR 20160] final judgment on the grounds that the complaint failed to state a claim for relief.

The State in its Complaint sought damages from defendant for fish killed as a direct and proximate result of sewage pollutants discharged by defendant's sewerage disposal plant into the Portage River. Plaintiff alleges its authority and capacity to sue by virtue of its ownership of wildlife, including fish, in trust for the benefit of all the people pursuant to Section 1531.02, R.C.¹

The dismissal of the complaint by the trial court was predicated upon two theories:

1. There must be intent or fault in the killing of game before the State can hold the defendant liable;

2. The operation of a sewerage disposal plant is a governmental function, and the City is, therefore, immune from suit by the State.

First, we must explore to what extent the traditional governmental immunity of a municipal corporation extends to an action instituted by the State of Ohio. This exploration results favorably to the State.

If the requisite procedure has been observed, a suit may be maintained between a municipality and the State. Thus, a State may sue a municipal corporation. (State, ex rel., Lamm vs. Sedalia (Mo. Ct. App. 1922), 241 SW 656; Attorney General ex rel. Emmens vs. City of Grand Rapids, 175 Mich. 503, 141 NW 890; State ex rel. Detienne vs. City of Vandalia, (Mo.), 94 SW 1009; Benscoter vs. Springfield, (Ill. Ct. of App., 1954) 1 Ill. App. 2d 574, 118 NE 2d 337; State vs. Miami, (Fla.) 43 So. 2d. 457; Oklahoma City vs. Bd. of Ed. of Okla. City, 75 P.2d 201; cf. Bd. of Commissioners of Big Horn County vs. Byron Drainage District, 75 P.2d 757; Bd. of Education of Township of E. Brunswick vs. Township Council of Township of E. Brunswick, 223 A.2d 481, State vs. Marin Municipal Water District, 17 Calif. 2d 699, 11 Pac. 2d 651; 17 McQuillin on Municipal Corporations, p. 144, Sec. 49.04.

In Ohio it is a well established principle that Article XVIII, Section 3,² Ohio Constitution, (Home Rule Provision) which grants municipalities the authority to exercise powers of local self-government, relates to local matters only and even as to a matter of local concern where the subject matter affects the general public of the State as a whole in sanitation and wild game matters more than it does the local inhabitants passes from what was matter for a local government to a matter of general State interest and must be governed by the general law of the State. Cleveland Electric Illuminating Co., vs. City of Painesville, 15 O.S. 2d 125, 129; Beechwood vs. Board of Elections of Cuyahoga County, 167 O.S. 369, 371, syl. 1; cf. State ex rel., McElroy vs. City of Akron, 173 O.S. 189, 193, 194. Protection of Wild Life is of state wide concern. The authority of the State of protect wild life, which includes fish, in accordance with Section 1531.02, Revised Code, is within this proper ambit of State Legislation, and by reason thereof the State can govern a municipal corporation in that area of activity and can maintain a legal action to obtain appropriate legal redress against a municipal corporation which violates such general State Statute. State ex rel., Neal vs. Williams, 120 O.S. 432; City of Bucyrus vs. State Department of Health, 120 O.S. 426, syl. 1; State ex rel. Board of Health vs. City of Greenville, 86 O.S. 1, pages 24, 25; 1946 OAG 785; 1948 OAG 567. For these reasons assignment of error 1-A is well taken.

Second, we must determine the extent, if any, of governmental immunity of the municipal corporations for maintaining a nuisance through operation of a sewerage plant which discharges pollutants which directly destroy property owned by another, vis., the State of Ohio, which holds title in trust to the fish [which] were killed.

A detailed analysis and historical study of the morass of Ohio cases which have determined tort liability or non-liability of a municipal corporation, depending upon whether or not the municipal activity is governmental and cloaked with immunity from liability, or whether or not the municipal activity is proprietary and does not create immunity from liability, would serve no useful purpose and perhaps only would add to the confusion in the law already existing. Cf. Hack v. Salem, 174 O.S. 383, and especially the concurring opinion of three judges, page 392 et seq. and the Footnote at page 400 which lists the Ohio cases determining governmental functions and proprietary functions of municipal corporations. Sears vs. City of Cincinnati, 31 O.S. 2d 157; Maloney vs. City of Columbus, 2 O.S. 2d 213.

The complaint in this case alleges in substance a killing of the fish as a direct and proximate result of the operation of the sewerage disposal plant by the defendant, a municipal corporation, and alleges facts constituting the creation and maintenance of a nuisance by the defendant.

The trial judge by dismissing the complaint and entering final judgment for the defendant found that the complaint did not state a good claim for relief. We reverse.

The operation by a municipal corporation of a sewerage disposal plant or sewerage system is not a governmental function, but is a ministerial or proprietary function. City of Portsmouth vs. Mitchell, 113 O.S. 250; Salem vs. Harding, 121 O.S. 412; Doud vs. City of Cincinnati, 152 O.S. 132, syl. 2; 39 O.J. 2d 252, Sec. 448; 57 Am. J. 2d 197 and 198, Sec. 224 and 225; 61 ALR 2d 874, 881-887, Sec. 4.

A municipal corporation exercises a proprietary function by operating a sewerage disposal plant and sewerage system, and has no governmental immunity from liability for a tort incident to such activity, and for damages directly caused by negligence in this regard, a municipal corporation is liable in the same way and to the same extent as a private corporation or an individual. Portsmouth vs. Mitchell, 113 O.S. 250, supra; 57 Am. J. 2d 185, 191, Sec. 203, 205; 59 ALR 2d 281, Sec. 9. Therefore, assignment of error No. 1-C is well taken.

There is ample legal precedent that a municipal corporation, in exercising its proprietary function of operating a sewerage disposal facility and sewage system, is liable for damages directly and proximately caused, not only on the theory of negligence, but also for those acts and activities which constitute a public nuisance. 57 Am. J. 2d 167, 168, 175, 178, Sections 172, 173, 185 and 191; 63 CJS 66, 268, 269, Sec. 770 (B) (1), 880; 173 ALR 1031, 1047.

We recognize the general rule that in seeking to charge a municipality with liability for injury due to a nuisance, notice thereof, either actual or constructive to the City is required. A City is not liable for failure to abate a nuisance which it did not create, except for notice and a request to abate it. 39 O.J. 2d 253, Sec. 449; McQuillin on Municipal Corporations, Third Edition, Volume 18, Section 53.47.

However, the general rule concerning notice to a municipal corporation is not applicable in this case, because the notice rule applies only when the municipal corporation did not create the nuisance. Osborne vs. Akron, 171 O.S. 361; Crino vs. Campbell, 68 App. 391; Harris vs. Findley, 59 App. 375; Volume 18, McQuillin on Municipal Corporations, Third Edition, Page 254, Section 53.54. In the present case the Complaint alleges that the City of Bowling Green created and maintained a nuisance by polluting the river through its municipally owned sewerage disposal facility.

The theory advanced by the defendant in the trial court that no claim for relief is stated unless intent or fault in the killing of the game is through water pollution alleged, has no logic or legal precedent for its foundation. Anyone who creates and maintains a nuisance intends the natural consequences of his nuisance creation, and is at fault for it. There is no legal text or decided case which can be found which discusses the anomaly of a no-fault nuisance. 57 Am. J. 2d 199, 203, Sections 226 and 235; 63 CJS, Municipal Corporations 271, Sec. 882 (b); 40 ALR 2d 1177, 1212, Sec. 16.

Defendant places strong reliance upon the case of McKee vs. City of Akron, 176 O.S. 282, to support the judgment of the trial court dismissing the complaint. McKee held that a municipal corporation had governmental immunity from a claim for damages directly resulting from maintenance of a public nuisance [3 ELR 20161] for odors emanating from the municipally owned sewerage disposal facility and affecting the realty of an adjacent owner and held in syllabus 1 as follows:

"1. A municipal corporation is not liable to owners of adjacent lands for an alleged nuisance arising from the operation by such municipal corporation of a sewage disposal plant. (Osborn vs. City of Akron, 171 Ohio St., 361, approved and followed.)"

McKee must be confined to the facts therein involved. McKee neither cited nor overruled Hack vs. Salem, 174 O.S. 383, supra, where in Footnote 1 the three concurring judges stated that the operation and upkeep of a sewer was a proprietary function and for authority relied upon Portsmouth vs. Mitchell, supra, 113 O.S. 250; cf. Geidemian vs. Bay Village, 7 O.S. 2d 79, 80; Standard Fire Ins. vs. Fremont 164 O.S. 344. Thus any statement in McKee that operation of a sewerage disposal plant is a governmental function must be considered as obiter dictum and not the law of the case, particularly since the statement was sought to be supported by Osborn vs. Akron, 171 O.S. 361, which was a case concerning a claim based upon a nuisance arising out of a garbage operation, the latter being clearly a governmental activity. Cf. Hack vs. Salem, supra, 174 O.S. 388, Footnote 1 at page 400.

For the foregoing reasons assignments of error Nos. II, III, and IV are well taken.

The affidavit filed by defendant asserting that the power failure caused by a traffic accident involving a third party does not resolve the issues.

Even if the defendant should prevail on the theory that the defendant operated the disposal plant as a governmental activity with consequent immunity from liability, plaintiff argues nonetheless that defendant has no immunity because of a statutory liability created by Section 1531.02, of the Revised Code,³ which prohibits taking or killing wild animals, including fish, and thus the legislature has pierced the judicially created governmental immunity doctrine and has made the municipal corporation liable for taking or killing fish, whether such is done by spear, fishing net, hook and line, or by pouring pollutants into the river containing the fish. Article 1, Section 19, Ohio Constitution; Lucas vs. Carney et al., Board of County Commissioners of Mahoning County, 167 O.S. 416. Thus, assignment of error 1-B is well taken which states the proposition that there is no governmental immunity to actions seeking damages for the appropriation of private property.

The defendant herein has a statutory liability to the plaintiff by reason of Section 1531.02, Revised Code, and related Statutes.

The judgment of dismissal by the Common Pleas Court of Wood County is reversed and the cause remanded to that court for further proceedings according to law.

JUDGMENT REVERSED

1. Ohio Revised Code Section 1531.02 provides in pertinent part: "The ownership of and the title to all wild animals in this state, not legally confined or held by private ownership legally acquired, is in the state, which holds such title in trust for the benefit of all the people. . ."

2. Article 18, Sec. 3, Ohio Constitution reads as follows: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

3. The following pertinent part of Section 1531.02, R.C., provides: "* * * No persons shall at any time of the year take in any manner or possess any number or quantity of wild animals, except such wild animals as the Revised Code or division orders permit to be taken, hunted, killed, or had in possession, and only at such time and place, and in such manner, as the Revised Code or division orders prescribe * * *. A person doing anything prohibited or neglecting to do anything required by sections 1531.01 to 1531.26, inclusive, and 1533.01 to 1533.69, inclusive, of the Revised Code, or contrary to any division order violates this section. * * *" The following pertinent part of Section 1531.01 (A), (G), (X), provides as follows:

"As used in Section 1531.01 to 1531.26, inclusive, of the Revised Code:

(A) "Person" means individual, company, partnership, corporation, or association, or any combination of individuals, or any employee, agent or officer thereof.

(G) "Take or taking" includes pursuing, shooting, hunting, killing, trapping, angling, fishing with a trotline, or netting any clam, mussel, crayfish, aquatic insect, fish, frog, turtle, wild bird, or wild quadruped, and any lesser act, such as wounding, or placing, setting, drawing, or using any other device for killing or capturing any such wild animal, whether it results in such killing or capturing or not. It includes every attempt to kill or capture and every act of assistance to any other person in killing or capturing, attempting to kill or capture any wild animal.

(X) "Wild Animals" includes clams or mussels, crayfish, aquatic insects, fish, frogs, turtles, wild birds, and wild quadrupeds."