Ralston v. United Verde Copper Co.
| Citation | 37 F.2d 180 |
| Decision Date | 18 November 1929 |
| Docket Number | No. 266.,266. |
| Parties | RALSTON et ux. v. UNITED VERDE COPPER CO. |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona |
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O'Sullivan & Morgan, Joseph H. Morgan, and Louis H. Bunte, all of Prescott, Ariz., for plaintiffs.
Anderson, Gale & Stack, of Prescott, Ariz., for defendant.
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.
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