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Show 222 PROTECTION OF WATER RIGHTS IN WATERCOURSES (8) Several of the cases decided by the Oklahoma Supreme Court in which protection against injury to riparian rights was sought involved claims of damage from pollution of the stream water.156 The proper measure of damages, where such a nuisance to riparian land as stream pollution is abatable but the injury is continuing, for which successive actions might be brought for temporary damages, was held to be the depreciation in usable or rental value of the realty by reason of maintenance of the nuisance, together with such special damages as for such discomfort, annoyance, and personal inconvenience, and such injury to crops or personal property as may have been sustained as the proximate result thereof.157 (9) However, in the case of permanent injury to real estate, caused by a city's construction of a dam which raised the streamwater level and injured riparian land, the Oklahoma Supreme Court indicated that the true measure of damages was the difference in the market value of the property before and after the water level was thus injuriously raised.158 And in a California case apparently concerned with permanent damages, the measure of damages for the unlawful diversion of water from land riparian to a stream was said to be the difference between the market value of the land before and after the diversion.159 Similarly, in an action to recover for damage allegedly caused by damages usually applicable to a condemnation case. 426 Pac. (2d) at 566. The plaintiff requested and obtained damages and injunctive relief. The measure of damages in such cases and in other cases pertaining to permanent damages is discussed below. Other aspects of inverse condemnation are discussed under "Reverse or Inverse Condemnation," infra. 156 Damages were awarded to riparian owners who suffered losses from polluted water which impaired their riparian uses. Markwardt v. Guthrie, 18 Okla. 32, 33-35, 54, 90 Pac. 26 (1907); Enid v. Brooks, 132 Okla. 60, 61-63, 269 Pac. 241 (1928). The loss for domestic purposes of the use of water from a stream was an injury to the usable value of the riparian owner's real estate. Oklahoma City v. Tytenicz, 171 Okla. 519, 521, 43 Pac. (2d) 747 (1935). "''Enid v. Brooks, 132 Okla. 60, 61-62, 269 Pac. 241 (1928); Oklahoma City v. Tyetenicz, 175 Okla. 228, 229, 52 Pac. (2d) 849 (1935). ls*Zalaback v. Kingfisher, 59 Okla. 222, 223, 158 Pac. 926 (1916); Kingfisher v. Zalabak, 11 Okla. 108, 109-110, 186 Pac. 936 (1920). In another case of permanent injury to real estate, caused by a dike that diverted and obstructed the flow of water in a watercourse so as to overflow plaintiffs land, the court said that the measure of damages for permanent injury ordinarily is the difference in fair market value of the property "immediately before and immediately after the injury occurs." George v. Greer, 207 Okla. 494, 495, 250 Pac. (2d) 858 (1952). In a later case involving permanent injury to real property, alleged to have been caused by escaping salt water from an oil well, the court added: "However, in applying this test, the jury must consider the matter in the light of the condition and value of the property prior to the injury. And, in order to fix the value immediately after injury, the jury may consider evidence as to the entire effect of the injury, although the complete effects thereof were not manifested immediately, but gradually became more apparent." Peppers Refining Co. v. Spivey, 285 Pac. (2d) 228, 232 (Okla. 1955). 159Collier v. Merced In. Dist, 213 Cal. 554, 571, 2 Pac. (2d) 790 (1931). This case |
