Opinion
No. 266.
November 18, 1929.
O'Sullivan Morgan, Joseph H. Morgan, and Louis H. Bunte, all of Prescott, Ariz., for plaintiffs.
Anderson, Gale Stack, of Prescott, Ariz., for defendant.
At Law. Action by John F. Ralston and wife against the United Verde Copper Company. Judgment for plaintiffs.
The complaint in nine counts alleges damages caused by the discharge from the defendant's smelter of poisonous gases, smoke, fumes, SO2, etc., which were carried by the wind over and upon the lands in issue, and burned, injured, and destroyed growing crops, vegetation, etc., thereon during the years 1926 and 1927, to plaintiff, and assignment of claims for damages claimed in counts 2, 3, 4, 5, and 6. Counts 8 and 9 are dismissed.
The defendant claims prescriptive easement by the open, continuous, and visible enjoyment of the lands for passing on and over it gaseous fumes from the smelter for the period of 10 years, and that, if the plaintiffs' crops have been injured, inclement weather and unfavorable soil conditions, and negligence of the plaintiffs in caring for the same, caused it. Other defenses are set up, which are not deemed material. A denial to the affirmative matter is filed.
A trial by jury was waived. At the conclusion of the plaintiff's evidence, defendant demurred to the same, and moved for judgment, which motion was renewed at the conclusion of all the testimony. The rulings upon the motions were reserved.
From all the evidence the following facts are found:
(1) The plaintiff J.F. Ralston entered the land described in count 1 as a homestead in 1911, and made final proof in 1919. All of the assignors of the lands in the other counts were owners thereof prior to 1917.
(2) In 1915 the defendant began operating the smelter, and the smoke and fumes were wafted by the wind and natural elements upon and over the lands in issue for approximately 25 to 33 per cent. of the time during all the years from 1915 to 1927, except 1921. There is no evidence as to the character of ore smelted prior to 1919. During 1919 sulphur dioxide, an invisible gas composed of sulphur and oxygen (SO2), burned and damaged crops of the plaintiff, and each year thereafter, when crops were planted, except 1921. The lands involved are located 13 to 16 miles from the smelter of the defendant. Between the lands in issue and the defendant's smelter, the United Verde Extension smelter is located, about 4½ miles from the United Verde smelter, in an approximately direct line to the lands in issue. SO2 is 2¼ times heavier than air, and is the only ingredient in the smelter smoke which causes injury to the leaves of vegetation, which are injured through the breathing pores of the plant. As the leaves breathe in the air, carbon dioxide, and sulphur dioxide, the sulphur dioxide is absorbed in the solution, causing a rupture of the cell, which destroys its function locally.
(3) During 1918 and 1919 a community ditch was constructed, carrying water from the Verde river to, over, and across the lands in issue, at a cost of approximately $20,000, to irrigate plaintiffs' and other lands. In 1920 the utility of this ditch was destroyed. In 1925 some of the community, including the owners of the land in issue, repaired the ditch for the purpose of irrigating approximately 250 acres of land, at a cost of approximately $3,500. Water was put in the ditch about May 15, 1926, and the ditch carried water for irrigation during 1926 and until August 31, 1927, when it in places was washed out, and has not since been repaired. Water in this ditch was available to irrigate some of the lands of all tracts in issue, except the Follett land, upon which 3 acres could be irrigated from a spring on the land.
(4) During the years 1919 to 1927, inclusive, the defendant smelted for the respective years 441,957, 710,283, 140,767 (January to April), 415,184, 1,100,695, 1,220,404, 1,298,422, 1,304,506, and 1,304,066 tons of ore, containing respectively 24.2, 24.4, 23.8, 24.8, 23.3, 23.0, 20.0, 24.5, and 26.7 per cent. of sulphur. The prevailing winds during 1926 and 1927 were so as to carry the smoke, etc., from the smelters to, upon, and over the land in issue from 25 to 33 per cent. of the time. During the years 1918 to 1927, inclusive, the United Verde Extension Mining Company treated 78,310, 99,109, 171,552, 57,073, 161,295, 182,755, 195,372, 196,249, 211,577, and 276,226 tons of ore, respectively, containing sulphur 26.2, 26.0, 27.5, 25.3, 28.8, 27.6, 26.8, 25.4, 24.1, and 21.4 per cent., respectively.
(5) The gases, smoke, fumes, etc., from the smelter of the defendant and from the United Verde Extension smelter commingled and were carried upon and over the lands in issue, and did destroy vegetation, etc., thereon, and did cause damage to growing crops on the said lands, and by the frequency of contact with such vegetation destroyed or made unmarketable the leasing value of the lands for the years 1926 and 1927.
(6) Not sufficient water was taken from the ditch or pumped upon the land of J.F. Ralston (count 1) for the year 1926, and proper care was not given to the crop that was planted thereon; that the total loss of the corn, although injured by gaseous fumes, was from lack of water. The evidence fairly established water was available for 1927, if utilized and applied, and that the presence of SO2 made it impossible to rent the land; that the rental value of the land for 1927 was $800; that the damage to the garden crop irrigated by pumping water was approximately $100 for the year 1926. The forage was injured, but the evidence does not show more than nominal damage, $25, to the plaintiff.
(7) Count 2 — A.J. Ralston: The evidence fairly establishes that he suffered damage of $150 each year. Count 3 — A.D. Ralston: The reasonable rental value for his land was $300 a year. Count 4 — Mack Davis: $1,000 for the year 1927, but for 1926 the value was not more than $500 by reason of not having been cultivated for several years, and the condition it was in at the beginning of 1926. Count 5 — Follett: The rental value was $250 for both years. Count 6 — Apache Maid Cattle Company, Inc.: The rental value was $1,000 a year. For the year 1926 the land was rented to George Ralston for a sum satisfactory to the Apache Maid. Count 7 — George W. Ralston: The proofs reasonably show a damage in the sum of $1,200.
(8) The damage was caused by the commingled smoke of the defendant and the United Verde Extension Mining Company smelter. The sulphur contained in the ores of each smelting company is approximately the same. The quantity of ore smelted by the United Verde Extension during the period in controversy is approximately 22½% of the total smelted.
(9) All of the claims have been assigned by the various owners under the several counts to John F. Ralston for the purpose of this suit. All of the parties have appeared in court and testified.
Did the defendant create a prescriptive right? George v. Gist (Ariz.) 263 P. 10; Atchison, T. S.F. Ry. v. Edwards (C.C.A.) 15 F.2d 37. The defendant's challenge must derogate some right of plaintiff, and, until injury, no actionable right is contravened. There was no injury or damage disclosed by the evidence until 1919, and, until a right was derogated, the plaintiff could not have invoked the process of the courts. U.S. v. Luce (C.C.) 141 F. 385-421. No cause was present. Stamm v. City of Albuquerque, 10 N.M. 491, 62 P. 973. The gravamen of an action is injury. Trinity Portland Cement Co. v. Horton (Tex.Civ.App.) 214 S.W. 510. Nor can the prescriptive right be broader than the asserted right covering the full period. The ore treated for the years 1926 and 1927 was in excess of 1,304,000 tons each year, of which 326,000 tons was sulphur. For the year 1919, 441,957 tons were treated, of which 110,000 tons was sulphur. Three times as much sulphur fumes were carried upon and over the lands of the plaintiff during 1926 and 1927 as in 1919. A's prescriptive right to flood B's land with 12 inches of water would not permit A to flood B's land with 36 inches of water, and, by the same token, the right to carry gaseous fumes from 110,000 tons of sulphur would not grant the right to carry fumes from 326,000 tons of sulphur. Nor was the use continuous, the smelter being shut down in 1919. The prescriptive right cannot obtain.
The abandonment of the farms from 1920, the time of the destruction of the ditch, until it was repaired in 1925, did not bar the plaintiffs from repairing the ditch and creating value for the destruction or impairment of which the defendant would be answerable. The statute does not bar a right asserted within two years from the accrual of the action. This action was begun December 22, 1927. The injuries asserted are for 1926 and 1927. The action is not barred.
There are three elements of damage: (1) To growing crops; (2) forage for cattle on lands described and on public range; (3) rental value.
For destruction of the growing crops, the measure of damages is the condition of the crop at the time of injury. Lommeland v. St. Paul, M. M. Ry. Co., 35 Minn. 412, 29 N.W. 119. To establish value at the time of destruction, any or all methods of computation which may afford a fair basis may be considered, and, while neither may afford positive proof, all may afford data as a basis for conclusion. Colorado Con. Land Water Co. v. Hartman, 5 Colo. App. 150, 38 P. 62. Damages for the growing crops described in counts 1, 2, and 7 have been fairly established to the amount above indicated.
Do the proofs before the court furnish a basis for a fair and reasonable rental value? Farmers, in negligence cases, are required to exercise ordinary care and moderate expense. 13 Cyc. 75. This is not the rule in nuisance cases. It was the duty of the defendant to abstain from injury, and the farmers are not bound to expend time and money to secure enjoyment of their legal right, which was taken from them by the wrongful act of the defendant, and, if by reason of poverty they are unable to do so, leave their farms. The exercise of due diligence with the means at hand is the most that could be required. The rule of good faith and fair dealing obtains. See Gilbert v. Kennedy, 22 Mich. 117; American Smelting Co. v. Riverside Dairy S. Farm (C.C.A.) 236 F. 510, 514.
What would an ordinarily prudent person, under like circumstances, be expected to do? The defendant company has many millions of dollars invested. Davis paid for his land $13,600; for reconstructing the ditch in 1916, in excess of $14 per acre was required. The fumes in 1919 injured the crop. The ditch, by excess water, was destroyed in 1920. Davis left his land for the time and secured employment as a mail carrier. Some of the others farmed in a limited way, but, except in 1921, when the smelter was shut down, were damaged by SO2 from the smelter. In 1925 the ditch was repaired at a cost in excess of $14 per acre to the parties who entered into the endeavor. Water was available from the ditch for irrigation. Davis, having no farming implements, had leased his land, but, because of the fumes, the parties would not continue. Others were deterred from taking leases. See, also, Joerger v. Pac. Gas Elec. Co. (Cal.Sup.) 276 P. 1017.
The defendant contends that eviction is necessary before the reasonable rental may be recovered for the time the owner is wrongfully kept out of possession. This rule in a continuing nuisance does not apply. While the owner was in physical possession, he was deprived of the beneficial use of the land by the continuous contact with the destructive fumes with the growing crops. Planting was a useless effort, so established by prior experience. The court knows that planting and seeding entail expense; that during this period the farmer and his family must live. The evidence shows that the deadly effect of poisonous gases is as certain as the wind from the smelter to the land, which is shown to be about one-third of the time. The owners were dispossessed of the beneficial use of the land. The defendant's assertion that there is no economic loss would require annual planting, foredoomed to damage, and annual litigation, which the farmers could not afford, and would result in a denial of justice.
When the parties placed water available, they were not required to go to the expense of planting a crop, which, in previous years, had shown them was doomed to injury and loss, and then litigate the defendant on liability therefor. It is evident, from the appearance of some of the assignors in this case, that they could not financially bear such burden.
In McCornick v. United States Mining Co. (C.C.A.) 185 F. 748, the claim was entirely speculative, and rested on many contingencies, and there was no evidence that the contingencies could have been met; nor is Western Tel. Co. v. Totten (C.C.A.) 141 F. 533, elucidating. That was an action for damages for alleged false statements in telegrams, and the damages recovered were only the natural, probable, effect of the deceit produced. Swain v. Tenn. Copper Co., 111 Tenn. 430, 78 S.W. 93, 94, rather is in support of the plaintiffs, that this is an action against the defendant to recover for the damages caused by the defendant. "This is the only reasonable and just rule that can be applied," says Judge Shields for the court.
The evidence of the defendant that there is no economic loss is not persuasive. The gases issuing from one of the stacks of the defendant's smelter contain approximately 10,000 parts per million, and 18,000 parts per million from the other stack. In the absence of air currents, after shooting several hundred feet into the air, to a point where the temperature of the gases is probably that of the atmosphere, the gases plume out and "form a great big plume," and gradually drop to the ground, where the concentration is approximately 5 or 6 parts per million; and when the gases are carried by the wind and diffused at a greater distance, the concentration is less per million. The evidence shows that upon these lands the concentration is 1 part per million or more. SO2, as low as 1 part per million, under some conditions, will injure vegetation. Plants vary in their susceptibility to SO2, and likewise in their recuperative power; spinach, lettuce, and vegetables have no recuperative power. In the formative state, pistils, stamens, silks and tassels of corn, grains in process of heading, are susceptible to SO2, injury, but are more resistant than the foliage of the plants. When SO2, present in the atmosphere, passes into the leaves through the stomata, if injury results, the cells within the leaf are broken, cell life destroyed, and the leaf within the area of injury becomes marked, bleached, and desiccated, plainly observable. The sensitiveness of the plant, the concentration of the atmosphere, length of time during which the plant is subjected to SO2, and humidity are essential conditions. Light, darkness, heat, or cold affect or control the opening or closing of the stomata.
The scientific mind may conceive how SO2 may destroy upon the alfalfa stem from 35 to 60 per cent. of the leaves, and the alfalfa grow new leaves and produce as large a crop within the same time as though the leaves had not been burned. To the lay mind it appears that the strength and time required to produce the new leaves would have produced additional growth and weight, and the loss to the field of alfalfa is very great, and greatly reduces, if not destroys, the profit, and, in effect, destroys rental value. To pick from the lettuce the outside burned leaves, and no economic loss follow, is refuted by the statement. The fact that heavy fertilization will speed growth of alfalfa and lessen time to mature does not show there is no economic loss. While the defendant has experimented with farms near its smelter and within the gaseous zone, it has by heavy fertilization demonstrated that alfalfa is grown for hay and pasturage and dairy use (it is said that the alfalfa stem, without leaves, has food value), but the evidence does show that there is a marked effect upon the alfalfa from SO2. And there is no credible evidence that the value of the crop production, by the same fertilization and use, would not be greatly enhanced without the SO2 effect.
The defendant is liable for the reasonable value of the crops destroyed and for the reasonable rental value of the lands so destroyed by gaseous fumes, smoke, etc., but only for that portion of the damage resulting from the fumes from its smelter commingled with the fumes of the United Verde Extension Smelter.
The total damage is $5,750. During 1926 and 1927 the defendant smelter treated 2,608,572 tons of ore, and the United Verde Extension smelter treated 787,803 tons of ore, or approximately 22½ per cent. of the total amount of ore treated by the two companies was treated by the United Verde Extension smelter, and the plaintiff should recover from the defendant 77½ per cent. of the damage done — $4,456.25. See Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550, 22 Am. St. Rep. 254; Swain v. Tenn. Copper Co., supra. The court must estimate as best it can from the evidence the total damage (see Jenkins v. Penn R. Co., 67 N.J. Law, 331, 51 A. 704, 57 L.R.A. 309; City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631, 10 L.R.A. (N.S.) 806, 118 Am. St. Rep. 852, 10 Ann. Cas. 767; Ogden v. Lucas, 48 Ill. 492; Jordan v. United Verde Copper Co. (Jordan v. United Verde Extension Mining Co.) (D.C.) 9 F.2d 144, affirmed (C.C.A.) 14 F.2d 299, and cases supra), and assess against the defendant the damage done by it as nearly as may be. Accuracy in such cases is impossible, but the amount of SO2 from each smelter may be some guide.
The motions of defendant for judgment are denied, and judgment, accordingly, directed for plaintiff.