Storley v. Armour & Co.

• Decision Date: 10 November 1939
• Docket Number: No. 11460.,11460.
• Citation: 107 F.2d 499
• Parties: STORLEY et al. v. ARMOUR & CO.
• Court: U.S. Court of Appeals — Eighth Circuit

107 F.2d 499 (1939)

STORLEY et al. v. ARMOUR & CO.

No. 11460.

Circuit Court of Appeals, Eighth Circuit.

November 10, 1939.

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E. T. Conmy, of Fargo, N. D. (G. T. Westlund, of Fargo, N. D., on the brief), for appellants.

Howard G. Fuller, of Fargo, N. D. (Fuller & Powers, of Fargo, N. D., and Walter C. Kirk and John A. McKee, both of Chicago, Ill., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

Fifty-eight plaintiffs, in a class suit brought to enjoin Armour & Company from polluting the Sheyenne River with the effluent from its packing plant situated in the village of West Fargo, North Dakota, and for damages resulting to the plaintiffs from such pollution, have appealed from a decree directing the entry of fifty judgments in their favor, upon the ground that the awards made by the court were less than the law required.

The Sheyenne River is a small river which rises in the central part of North Dakota and is approximately 250 miles long. After flowing east and south through Valley City and Lisbon, it flows east and north through West Fargo and thence north by northeast to its junction with the Red River of the North at a point about 16 miles from West Fargo. Between West Fargo and the mouth of the Sheyenne there are seventy farms of varying sizes bordering the river. In 1919 the Equity Cooperative Packing Association built a packing plant in West Fargo on the east bank of the river. This plant was operated for about three years and then lay idle until 1925, when it was acquired by Armour & Company, which has ever since been operating it. A pool created by a dam in the river above the plant furnished the necessary supply of water for the plant. The river, below the plant, furnished the only means for the disposal of plant waste and sewage from the plant and the village. The effect of the operation of the plant was to turn the river below the plant into an open sewer. The water became not only unfit for all domestic purposes, but unwholesome for cattle to drink. The river became useless for bathing, boating, fishing or swimming and for the taking of ice, and during the summer months became a breeding place for flies. Instead of being a benefit to those who occupied the farms along its banks, it became a detriment and a source of discomfort to them because of putrefying matter and filth which gave off noxious odors. Protests against the defilement of the river were made by those affected as early as 1926, but conditions were not remedied.

In 1934 John Storley and thirty-one others who owned and occupied farms bordering the river below the plant brought separate suits in the State Court of Cass County, North Dakota, for injunctions against the pollution of the river by Armour & Company and for damages. These 32 suits were removed to the District Court of the United States. Thereafter all of the plaintiffs except Storley amended their complaints by eliminating prayers for equitable relief. All of the suits where the damages prayed did not exceed $3,000 were remanded to the State Court. Those in which the prayer was for damages in excess of $3,000 were retained. In 1935 Armour & Company settled with the 32 plaintiffs for all damages which had accrued up to January 1, 1936, for the sum of $26,500, which gave to each of the 32 plaintiffs less than one hundred dollars per year as damages. The 32 cases were then dismissed, with the exception of the Storley suit, and it was agreed that that suit should be continued as a class suit until November 1, 1935; that in the meantime Armour & Company should install "facilities for primary treatment by screening and settling of packing house waste"; that if, after November 1, 1935, it was still believed that unlawful pollution of the river existed, the Storley suit might be brought on for trial, but that all damages accruing to Storley up to January 1, 1936, had been paid and that that issue was eliminated from his complaint. In October, 1936, the Storley suit was set for trial on December 8, 1936. By stipulation, the other plaintiffs here claiming damages due to the pollution of the river were joined with Storley. In January, 1937, the District Court entered an interlocutory decree to the effect that the nuisance created by the pollution of the river still existed; that the entry of a final decree enjoining Armour & Company from polluting the river should be stayed for a year in order to enable it to find some additional means of treating the waste from the plant so as to abate the nuisance; and that jurisdiction to assess damages should be retained. See Armour & Co. v. Miller, 8 Cir., 91 F.2d 521, 525. In January, 1938, testimony was taken relative to damages claimed to have been suffered by those who owned or occupied 50 farms bordering the river below the plant. The testimony as to damages was not taken before the court, but was, by order of the court and consent of the parties, taken by the court reporter as a special examiner, and reported to the court. After the transcript had been prepared by the reporter, counsel for the plaintiffs prepared and filed itemized statements of the damages claimed by each of the plaintiffs.¹ The case, as to damages, was submitted to the court upon the evidence adduced before the court reporter, the statements of their claims filed by the plaintiffs, and briefs and arguments of counsel. With few exceptions, the damages to be determined were those accruing between January 1, 1936, and January 1, 1938.

After the submission of the case and on September 28, 1938, the court filed an opinion ruling that certain items of damages claimed were disallowed: (1) Damages claimed because of the unfitness of the river water for drinking and culinary purposes; because the river water had not been fit for such purposes prior to the existence of the nuisance. (2) Damages claimed for loss of cattle due to Bang's disease; for the reason that the evidence that the pollution of the river was the proximate cause thereof was speculative. (3) Damages claimed for the death of turkeys; because the evidence was speculative. (4) Exemplary damages; for the reason that the court was satisfied that exemplary damages should not be allowed. (5) Damages claimed to "feeders"; because no suitable foundation in the evidence to form an estimate of the amount of damage existed. (6) Damages claimed for loss of calves; because the evidence was speculative. (7) Damages claimed to "milkers"; because the evidence was insufficient to form any basis for an estimate of damages except as to one plaintiff.

In the opinion the court further ruled that landlords out of possession were entitled to recover for diminution of the rental value of their lands caused by the condition of the river; that tenants in possession were entitled to recover actual damages proved; that damages for the following items were allowed: (1) Interference with comfortable living; (2) pumping water for stock; (3) time spent washing stock; (4) loss of swimming, boating and fishing privileges; (5) loss of ice-taking privilege; (6) expense of fly spray and poison. The court attached to its opinion itemized statements of the amounts allowed to each of the plaintiffs as damages.² The plaintiffs filed a petition for rehearing. On October 17, 1938, the court supplemented its original opinion, making some additions to the allowances made to some of the plaintiffs. On November 28, 1938, a further supplemental opinion was filed, making certain additional allowances. The petition for rehearing was denied. On December 8, 1938, formal findings of fact and declarations of law and a decree were filed, which specified the aggregate amount of the judgment to which each of the plaintiffs was found to be entitled.

Twenty-six of the plaintiffs accepted the awards made them by the court. Their judgments were paid and satisfied. Nevertheless they joined in this appeal. They have no standing in this Court. The judgments in their favor were for all damages to which the court determined they were entitled for the period in question. "Accepting the fruits of a judgment and thereafter appealing therefrom are totally inconsistent positions, and the election to pursue one course is deemed an abandonment of the other." Kaiser v. Standard Oil Co., 5 Cir., 89 F.2d 58, 59; Altman v. Shopping Center Bldg. Co., 8 Cir., 82 F.2d 521, 527, and cases cited. Whether the judgments awarded these twenty-six plaintiffs, and which they satisfied, were right or wrong can now be of no concern to this Court. This eliminates from consideration the claim of Edwin Waa and Theodore Waa.

The broad question which the trial court was obliged to determine was, what amount of money would reasonably compensate each of the plaintiffs for the losses caused him by the unlawful pollution of the Sheyenne River by the defendant, Armour & Company, considering the nature, extent and duration of such losses.

While the unlawful pollution was conceded, the burden of proving the nature and extent of the damages suffered by each of the plaintiffs was upon him. The controlling law is that of North Dakota. The theory of the District Court, acquiesced in by the plaintiffs and not seriously controverted by the defendant, was that, under the law of that State, the measure of damages where the riparian lands affected were leased was diminution of rental value, and where they were occupied the damages were "actual damages" proximately caused by the pollution. We think there is much force in the defendant's contention that the proper measure of damages would be the diminution in rental value of leased lands, and diminution in the use value of those farms which were occupied, caused by the unlawful pollution of the river. It would seem that the difference between the fair rental or use value of a farm upon the river with the defendant making only such use of the river...