International Paper Co. v. Busby, 13149.
| Decision Date | 16 June 1950 |
| Docket Number | No. 13149.,13149. |
| Citation | 182 F.2d 790 |
| Parties | INTERNATIONAL PAPER CO. v. BUSBY. |
| Court | U.S. Court of Appeals — Fifth Circuit |
H. M. Holder, Shreveport, La., Geo. T. Madison, Bastrop, La., John H. Tucker, Jr., Shreveport, La., for appellant.
Val Irion, Shreveport, La., Malcolm E. Lafargue, Shreveport, La., for appellee.
Before HOLMES, WALLER, and BORAH, Circuit Judges.
This appeal is from a judgment for $5,000, rendered against appellant in an action of tort brought by appellee, for damages to his farming land, pasture areas, and livestock, caused by an overflow thereon of water discharged by the appellant, which is engaged in the manufacture of paper from wood pulp, and has been since 1936. In the process of making paper, it uses large quantities of water, which after such use is dark in color, as a result of suspended organic matter, and is often referred to as black water. The daily output of used water is drained into settling basins maintained on appellant's land. These basins are emptied into Bodcau Bayou, and it usually takes from thirty to sixty days to empty them. Appellee is a downstream riparian owner, and has been since 1935. His property is located on Bodcau Bayou, ten or twelve miles from the paper mill. When appellant empties its settling basins into Bodcau Bayou, such discharge causes a swelling of the stream, and the black waters flow onto appellee's lands.
On July 23, 1948, appellee filed this suit to recover damages for such overflow of his lands, alleging that, prior to the commencement of said operations, Bodcau Bayou was an ideal fishing place; that he had engaged in commercial fishing, in the business of raising cattle, in farming on his property; and that Bodcau Bayou was the sole water supply for all of these operations. He further alleged that, upstream from his land, appellant dumped poisonous waste into Bodcau Bayou, causing the noxious water to drain through his land, destroying all fish and aquatic life, befouling the air, injuring the soil, rendering the stream and its tributaries entirely unfit and useless for agricultural purposes, cattle raising, or human consumption; and causing him annoyance, inconvenience, and mental and physical suffering, because of the presence of dead fish and other deleterious substances occasioned by the pollution of the stream. He listed his damages as follows, and prayed for an injunction in the event he was not entitled to damages:
"Devaluation and damage to
cattle ......................... $ 1900.00
Inconvenience and nuisance
from dead fish and odors of
pollution, and inconvenience
and cost of attending stock
during period of pollution ..... 6000.00
Destruction of business of renting
boats to fishermen and
hunters ........................ 10000.00
Damage to wire fence, caused
by paper mill waste ............ 500.00
Diminution in value of 278
acres of land, thus lessening
the value of the sale price of
the property on account of
the condition created .......... 13900.00
_________
Total damage ............... $32300.00"
Before answering, appellant filed a motion for a more definite statement of the time when the damages became permanent. It also moved to dismiss the bill on the ground that the claim for damages had been prescribed by the one-year statute of limitation, provided by Article 3536 of the Civil Code, and on the ground that an injunction would be improper. The court ruled that appellee's statement as to the date that the damages became permanent was sufficient; that the plea of prescription should be referred to the merits; that on the trial the proof would be limited to the damages done within one year prior to the date of filing the suit; and that the decision upon the alternative plea for an injunction would be reserved until the action for damages was terminated. Appellant's answer was a general denial of appellee's complaint. It claimed justification for the discharge of waste water into Bodcau Bayou, and alleged that it was a reasonable exercise of appellant's rights as a riparian owner.
Prior to the trial of the case, appellee's deposition was taken; and pursuant thereto appellant filed a motion for summary judgment, again raising the question of prescription. The motion was sustained in part, and the plea of prescription was allowed in so far as appellee's claim for destruction of his business of renting boats was concerned. The claim for destruction of the fence was not submitted to the jury, because it had been destroyed more than a year before the filing of the suit. The damage and injunctive issues were tried together, a jury hearing the issues as to damages, and the court hearing the injunctive feature. The jury returned a verdict in favor of appellee for $11,000. Appellant filed a motion for judgment non obstante...
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