Kornoff v. Kingsburg Cotton Oil Co.

Decision Date14 October 1955
Citation288 P.2d 507,45 Cal.2d 265
CourtCalifornia Supreme Court
PartiesCharles KORNOFF and Eleanor Kornoff, Husband and Wife, Plaintiffs and Respondents, v. KINGSBURG COTTON OIL COMPANY, a corporation, Defendant and Appellant. S. F. 19338.

David S. Davis and Charles Ray Barrett, Fresno, for appellant.

James C. Janjigian, N. Lindsey South, and L. Kenneth Say, Fresno, for respondents.

CARTER, Justice.

Defendant Kingsburg Cotton Oil Company appeals from an adverse judgment entered on a jury verdict given after it had been granted a limited new trial on the sole issue of damages. No appeal was taken from the order granting the limited new trial.

Defendant owns and operates a cotton gin on land adjacent to plaintiffs' property which is used for residential purposes and the operation of a planing mill. The area in question was zoned for business and commercial purposes. Defendant is engaged in the business of ginning lint cotton and processing cotton seed, which lasts approximately six months of each year. During the ginning season, plaintiffs alleged that large quantities of fumes, vapors, dust, dirt, sediment, lint and waste materials were emitted into the atmosphere and penetrated into the house and shop covering them with an offensive, injurious and adhesive coating of dust, lint and ginning waste and causing injury to their house, furniture, and persons. At the first trial, the jury found plaintiffs had suffered injury to their real property and assessed damages in the sum of $10,000; it was specifically found that neither plaintiff had suffered any damage to his, or her, person. A new trial was thereafter granted on the ground that the evidence was insufficient to justify the verdict as to the 'issue of damages only.' At the conclusion of the second trial, the jury returned the following verdict: 'We, the Jury in the above entitled action, assess plaintiffs' damages in the sum of $9541.00; and our verdict is for the plaintiffs, Charles Kornoff and Eleanor Kornoff, husband and wife, and against the defendant, Kingsburg Cotton Oil Company, a corporation, for said amount.' A judgment was thereafter entered and defendant appeals.

At the second trial on the sole issue of damages, the jury was instructed as follows:

'If, under the Court's instructions, you should find that plaintiffs are entitled to a verdict for a sum greater than merely nominal damages, then you shall determine the items of claimed detriment which I am now about to mention, provided you find each of such items to have been suffered by plaintiffs, and provided further that you find each of such items to have been suffered by plaintiffs as the proximate result of the act or acts of trespass complained of:

'1. Such sum as will reasonably compensate the said plaintiffs for the damage to their real property. That sum is equal to the difference in the fair market value of the real property immediately before and after the injury; provided, however, that if the injury has been repaired, or be capable of repair, so as to restore the fair market value of plaintiffs' real property as it existed immediately before the injury, at an expense less than such difference in value, then the measure of damage is the expense of such repair, rather than such difference in value.

'2. Such sum as will reasonably compensate plaintiffs as the owner-occupants of the land, including members of their household, for discomfort and annoyance to them, if any, proximately caused by the act or acts of trespass complained of. The amount of damages to be awarded for this element of the injury, if any, left to the sound judgment and discretion of the jury based upon the evidence, and without the necessity of any witness having given his opinion with respect to the amount of such damages, if any.' (Emphasis added.)

The jury was instructed at defendant's request that plaintiffs had suffered a trespassory invasion '(more or less continuous in nature during the cotton ginning season)'; and, also at defendant's request, that the sum which would reasonably compensate plaintiffs for the damage to their real property was the 'sum equal to the difference in the fair market value of the real property immediately before and after the injury; provided, however, that if the injury has been repaired, or be capable of repair, so as to restore the fair market value of plaintiffs' real property as it existed immediately before the injury, at an expense less than such difference in value, then the measure of damage is the expense of such repair rather than such difference in value.'

At the trial, plaintiffs' attorney argued that plaintiffs were seeking past, present and future damages for the injury to their real property. Defendant contends that where a continuing trespass is involved, as distinguished from a permanent trespass, future damages are not recoverable. While no instruction was given the jury concerning the distinction between permanent and continuing trespass, the following statement was made by the court in the presence of the jury: 'Now, I'll repeat a question, Mr. Say, that I asked you in the absence of the jury. Is it the contention of your clients, Mr. and Mrs. Kornoff, that the alleged damage that they complain of in this suit is permanent and that it will continue in the future and that they are asking damages now for all of the adverse effects which have happened in the past and which may happen in the future from the operation of this gin of the defendant's?

'Mr. Say: Yes, your Honor, I think the word which I may put into the record, that we are asking for damages for past, future, present and prospective damages.

'The Court: Will you proceed with your case, Mr. Barrett.'

The record shows that the trespass occurs only during the ginning season of each year a period of approximately six months; that the action was brought in 1953; that defendant's operations commenced in 1951. The parties apparently treated the trespass as permanent because of its recurrent character, rather than as a continuous trespass. The defendant's requested instructions, which were given, gave as the measure of damages that for a permanent trespass, although during the second trial, defendant's counsel argued that future damages were not recoverable.

The general rule appears to be that where a trespass to land is of a permanent nature, all damages, past and prospective, are recoverable in one action, but where the trespass is temporary in character, only those damages may be recovered which have accrued up to the time of the commencement of the action, since it is not to be presumed that the trespass will continue. 24 Cal.Jur., p. 696; Carbine v. Meyer, 126 Cal.App.2d 386, 272 P.2d 849. In Slater v. Shell Oil Co., 58 Cal.App.2d 864, 870, 137 P.2d 713, 715, an action for ejectment to enforce the removal of defendant's pipe line from the property of plaintiff, and for damages for the use and occupation of the land was involved. The court said: 'Though the right to sue for ejectment and damages may be exercised in the same action by reason of section 427, subd. 2 of the Code of Civil Procedure they are nevertheless independent and inconsistent causes of action based upon the same invasion of the same right. Where, therefore, a party elects to sue for damages past and prospective he is deemed to have waived the invasion and consented to the continued occupancy of the land. Such is the rule of the majority of the cases. Tooker v. Missouri P. & L. Co., 336 Mo. 592, 80 S.W.2d 691, 101 A.L.R. 365; Thompson v. Illinois Cent. R. R. Co., 191 Iowa 35, 179 N.W. 191; Griffen v. Jacksonville etc. Ry. Co., 33 Fla. 606, 15 So. 338; 18 Am.Jur. p. 166; Hussey v. Bryant, 95 Me. 49, 49 A. 56; Pinkham v. Chelmsford, 109 Mass. 225; Hawver v. Omaha, 52 Neb. 734, 73 N.W. 217; Oliver v. Monona County, 117 Iowa 43, 90 N.W. 510; Barnes v. Peck, 283 Mass. 618, 187 N.E. 176; and Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581 8 S.Ct. 631, 31 L.Ed. 527.' In Thompson v. Illinois Cent. R. R. Co., 191 Iowa 35, 179 N.W. 191, plaintiff recovered and collected a judgment for damages for the market value of his land caused by defendant's construction and maintenance of a railway embankment. He sued again for additional damages. It was held that he was bound by his election because, in the first suit, he treated the invasion as a permanent injury to his land, recovered damages based upon a substantial reduction in the market value of his land, and proceeded upon the theory that he should be treated as having cheaper land because the permanent and wrongful construction would injure his land at future times as it had in the past. In Spaulding v. Cameron, 38 Cal.2d 265, 267 et seq., 239 P.2d 625, 627, which involved a nuisance, this court said: 'The remedy for a continuing nuisance was either a suit for injunctive relief or successive actions for damages as new injuries occurred. Situations arose, however, where injunctive relief was not appropriate or where successive actions were undesirable either to the plaintiff or the defendant or both. Accordingly, it was recognized that some types of nuisances should be considered permanent, and in such cases recovery of past and anticipated future damages were allowed in one action. Eachus v. Los Angeles Consolidated Electric Ry. Co., 103 Cal. 614, 622, 37 P. 750 (42 Am.St.Rep. 149); Williams v. Southern Pac. Co., 150 Cal. 624, 626-628, 89 P. 599; Rankin v. DeBare, 205 Cal. 639, 641, 271 P. 1050; see, McCormick on Damages, § 127, pp. 504-505.

'The clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operations of a public utility. Since such conditions are ordinarily of indefinite duration and since the utility by making compensation is entitled to continue them, it is appropriate that only one action should be allowed to recover for all the damages inflicted....

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