Akers v. Mathieson Alkali Works

• Court: Virginia Supreme Court
• Writing for the Court: West, J.
• Citation: Akers v. Mathieson Alkali Works, 151 Va. 1, 144 S.E. 492 (1928)
• Decision Date: 20 September 1928
• Parties: E. C. AKERS v. MATHIESON ALKALI WORKS.

Page 1

151 Va. 1

E. C. AKERS v. MATHIESON ALKALI WORKS.

Supreme Court of Virginia, Staunton.

September 20, 1928.

1. INJUNCTIONS — Appeal and Error — Objections to Answer — Harmless Error. — In the instant case, a suit for injunction, the refusal of the court to strike certain matter out of the answer of the defendant was assigned as error. There was no merit in this assignment, however, as while some of the allegations of the answer were immaterial and others might not state any defense to complainant's bill, the refusal of the court of strike out the clauses referred to in the motion to strike out did not constitute reversible error.

2. INJUNCTIONS — Adjoining Landowners — Deposit of "Muck Liquor" by One Landowner Upon the Land of Another — Case at Bar. — The instant case was a suit for injunction. In the manufacture of defendant's products there was a large quantity of waste matter known as "muck" and "muck liquor," which was deposited into settling basins. In 1925 the instant suit was instituted, praying for damages and for a perpetual injunction, on the ground that the muck liquor was permitted to leak from the basins onto complainant's land. It appeared, without contradiction, that no muck had been deposited in the basins in question since December, 1926, the muck being deposited after that date in a new artificial basin from which there could be no leakage. The trial court refused to grant an injunction, for the reason that defendant had ceased to make the muck deposit complained of, and because the nature of the case would make it inequitable to grant such relief.

Held: That this action of the chancellor should be upheld on appeal.

3. INJUNCTIONS — Discretion of Chancellor — Injury to Defendant Greater than Benefit to Complainant — Adequate Remedy at Law. — The granting or refusing of an injunction is a matter which rests in the sound discretion of the chancellor. The injunction will not be awarded where the injury to the defendant is greater than the benefit to the plaintiff, nor where the complainant can be adequately compensated in damages.

4. INJUNCTIONS — Injury to Defendant Greater than Benefit to Complainant — Case at Bar. — In the instant case complainant asked that defendant be enjoined from allowing "muck liquor" to flow from defendant's land to that of complainant's. The only way to stop absolutely the flow of a small quantity of muck liquor from the basins on defendant's land to complainant's land would have been to remove all the muck from the basins in which it was contained. This would have been of little benefit to complainant and would have cost defendant $1,000,000.00. In the course of time, presumably not very long, the supply of muck liquor in these basins would be exhausted.

Held: That the chancellor did not err under these circumstances in refusing to grant an injunction.

5. INJUNCTIONS — Injury and Benefit to the Parties — Detriment to the Public. — It is not every case of nuisance, or continuing trespass, which a court of equity will restrain by injunction. In determining this question, the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction. Where the loss entailed upon defendant would be excessively out of proportion to the injury suffered by the complainant, or the granting of the injunction would be a serious detriment to the public, the court may properly deny the injunction and leave the parties to settle their differences in a court of law.

6. ISSUES TO THE JURY — Amount Due to Complainant — Unliquidated Damages — Case at Bar. — While a court of chancery may properly, in some cases, have its commissioner ascertain the amount due to the complainant by the defendant, yet, where the amount claimed consists of unliquidated damages, and the amount of the recovery depends upon the credibility of conflicting witnesses, it is proper to direct that an issue out of chancery be submitted to a jury. So an issue out of chancery was proper in the instant case, a suit for injunction, to determine amount of damages recoverable by complainant for "muck liquor" allowed by defendant to flow upon the land of complainant.

7. ADJOINING LANDOWNERS — Damages — Negligence — Sic Utere Tuo Ut Alienum Non Laedas — Muck Flowing from Land of One to that of Another — Case at Bar. — In the instant case defendant, a manufacturer of chemicals, had the right to deposit waste known as muck liquor upon its own land, but no right to cause or permit it to flow upon or under and injure the land of the complainant. The law requires that every person so use his own property as not to injure the property of another, sic utere tuo ut alienum non laedas. When defendant permitted the muck to escape from its land and injure land of the complainant, without his fault, defendant was liable for the damages sustained by the complainant.

8. CONSTITUTIONAL LAW — Taking of Property without Just Compensation — Public Uses — Private Uses. — The Virginia Constitution provides that property shall not be damaged for public uses without just compensation. It follows, a fortiori, that it cannot be damaged for private purposes without just compensation. Such taking for private purposes, though not forbidden in terms by the Constitution, is forbidden by the "fundamental principles of a republican form of government."

9. REAL PROPERTY — Maxims — Sic Utere Tuo Ut Alienum Non Laedas. — The maxim sic utere tuo ut alienum non laedas (so use your own property that you do not injure any other) must never be lost sight of. One man, without fault, is injured by another; that is enough for liability.

10. WATERS AND WATERCOURSES — Dam — Liability of One who Erects a Dam — Negligence. — One who stores water for his own purposes must so construct his dam or other works as to preclude injury to the property of others by leakage, seepage or percolation. Where a dam gives way because of the ordinary presence of the water it may be presumed that due care and diligence were not used either in its original construction or its subsequent maintenance; and the right of a person injured thereby does not depend on his ability to specify or prove what mistake or insufficiency in the dam caused it to give way.

11. ADJOINING LANDOWNERS — Damages — Negligence — Sic Utere Tuo Ut Alienum Non Laedas — Muck Flowing from Land of One to that of Another — Case at Bar. — In the instant case defendant, a manufacturer of chemicals, deposited waste known as muck liquor upon its own land, from which it seeped to complainant's land. Defendant assigned as error the ruling of the lower court that complainant had sustained damages for which he was entitled to compensation. This assignment involved the question of whether under the circumstances complainant's right to recover depended upon his proving that the injury to his property was caused by the negligence of the defendant.

Held: That as it sufficiently appeared from the evidence that defendant permitted the muck liquor to escape from its premises and injure the property of the complainant, the defendant was liable for the resulting damage.

Appeal from a decree of the Circuit Court of Smyth county. Decree for defendant. Complainant assigns error.

The opinion states the case.

Hutton & Hutton, J. Irby Hurt and Warren & Widener, for the appellant.

Rushmore, Bisbee & Stern, B. F. Buchanan and White, Penn & Stuart, for the appellee.

WEST, J., delivered the opinion of the court.

E. C. Akers, complainant, is the owner of seventeen acres of land in the town of Saltville, Smyth county, Virginia. This land has upon it three dwelling houses and outbuildings, and is nearly surrounded by the lands of the Mathieson Alkali Works, the defendant. The Akers land is very rugged and hilly, except a few acres upon which the buildings are located. There is an opening in the side of the hill east of the buildings from which, during and after rains, clear water formerly flowed. It was, more accurately speaking, a wet weather spring.

The defendant's tract of land contains several hundred acres and extends from complainant's land to the north fork of the Holston river. Much of this land is about 150 feet greater in altitude than the land of the plaintiff, and, like his land, beneath a layer of soil on the surface, is composed mostly of limestone rock. Defendant has on its land, about one mile from the plaintiff's land, a manufacturing plant at which it manufactures certain chemicals, including soda, soda ash and caustic soda. The raw material used consist mostly of limestone, quarried upon the land, and brine which is obtained from wells which it has sunk into the salt deposits upon the premises. In the manufacture of its products there is a large quantity of waste matter known as "muck" and "muck liquor."

According to the testimony of the complainant, "it has an offensive odor, is unfit for domestic purposes, kills fish and is destructive of trees, shrubbery and vegetation."

When the muck leaves the plant it consists of a liquid in which there is about two per cent of insoluble solid matter — slack lime and crushed lime. It is pumped into a settling-basin, where the solid particles settle to the bottom leaving the clear liquid at the top. This liquid is about eighty-seven per cent water and of the remainder a large per cent is calcium chloride and common salt, both being dissolved in the water.

Up to December 24, 1924, the muck was deposited in Basin No. 2. On that day the dam broke and as soon as practicable the defendant began to deposit the muck into two natural basins, or sinks on its own land, known as Basin No. 3 and Basin No. 4. These were emergency basins and as soon as the plant began to operate the defendant began the construction of a large artificial basin known as Basin No. 5, which will hold all the muck the plant will put out in sixty years. This basin, costing nearly one-half million dollars, was completed on ...