Akers v. Works

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

144 S.E. 492

AKERS.

v.MATHIESON ALKALI WORKS.

Supreme Court of Appeals of Virginia.

Sept 20, 1928.

Appeal from Circuit Court, Smyth County.

Suit by E. C. Akers against the Mathieson Alkali Works. Prom the decree, plaintiff appeals. Affirmed.

See, also, 144 S. E. 497.

Hutton & Hutton and J. Irby Hurt, all of Abingdon, and Warren & Widener, of Bristol, for appellant.

Rushmore, Bisbee & Stern, of New York City, B. F. Buchanan, of Marion, and White, Penn & Stuart, of Abingdon, for appellee,

WEST, J. E. C. Akers, complainant, is the owner of 17 acres of land in the town of Saltville, Smyth county, Va. 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, excepta 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 consists 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 2 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 87 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 60 years. This basin, costing nearly $500,000, was completed on December 1, 192C, and no muck has been deposited in basin No. 3 nor in basin No. 4 since that date.

In January, 1925, the muck liquor began to percolate from basin No. 3 and basin No. 4, and the tenants who used water from defendant's spring across the road from complainant's property complained that the water was unfit for use. On February 10, 1925, complainant informed the defendant that the water running from the wet weather spring contained muck liquor, and requested that the situation be remedied. Defendant had a 10-inch pipe "run from the wet weather spring to the road and under the road to empty into a branch that ran down the road on the opposite side thereof from complainant's property."

On June 26, 1925, there was a "blowout, " and the muck ran through a leak in the bottom of basin No. 4 in such large quantities that the pipe could not carry it off, and it flowed over the complainant's yard "from the wet weather spring to the road and thence down the road to the river."

On the—— day of July, 1925, complainant instituted this suit. The bill alleges, in substance, that the muck was permitted to leak from the basin into an underground fissure, leading from the basin, through and under the land of the defendant, up to, by, through, under, and over the land of the complainant; that by reason of the flow of the muck the buildings on his land are no longer fit for habitation; that the land of the complainant has been damaged, and the trees, herbage, grasses, vines, and shrubbery formerly growing thereon have been killed, and the water in the land polluted and rendered unfit for use by man or beast; that the passage of the muck and muck liquor under and upon the complainant's lands constitutes a constant and continuing trespass and is "a nuisance in fact and in law."

The prayer of the bill is that a perpetual injunction be granted enjoining and restraining the defendant from further causing or allowing the muck or muck liquor to flow under or over the complainant's land, and that the amount of damages done complainant's property up to the granting of the injunction be ascertained by a commissioner of the court, and for general relief.

The defendant's answer to the bill alleges that it used due and proper care to prevent the escape of the muck and muck liquor from the sink or basin, and is not liable for any damage resulting therefrom.

The contentions of the defendant, as set forth in its answer, are summarized by the complainant as follows:

"(a) That it was not negligent in the manner of depositing the muck on the hill above plaintiff's property.

"(b) That its plant 'represents an investment of several million dollars, ' and that '3, 500 persons derive their support from it.'

"(c) That the 'sink is the only accessible place, ' etc.

"(d) That plaintiff's loss is 'extremely small' as compared to the loss of defendant, which would be 'exceedingly great if defendant is required to cease depositing muck in said sink.'"

On a final hearing upon the pleadings and exhibits filed and the depositions of witnesses, the court by its decree entered April 12, 1927, refused to grant an injunction, for the reason that defendant had theretofore ceased to make the muck deposit complained of, and because the nature of the case would make it inequitable to grant such relief. The court further decreed that an issue be made up andtried by a jury at the bar of the court, "to ascertain and determine the amount of damages, past and future, caused to complainant's property by the defendant by reason of underground drainage and percolations of muck and muck liquor from defendant's land as a result of all muck heretofore deposited thereon in defendant's dams Nos. 3 and 4."

The complainant assigns as error the action of the court:

(1) In refusing to strike certain matter out of the answer of the defendant; (2) in refusing to grant the injunction prayed for; (3) in directiug an issue out of chancery.

We find no merit in the first assignment of error. While some of the allegations of the answer are immaterial and others may not state any defense to complainant's bill, the refusal of the court to strike out the clauses referred to in the motion does not constitute reversible error.

The second assignment of error is based upon the court's refusal to grant an injunction restraining the defendant from "further causing and allowing the * * * muck or water to flow upon, under, through, or by the said land of complainant."

It appears, without contradiction, that no muck has been deposited in basin No. 3 or basin No. 4 since December, 1926; all the muck since that date being deposited in the new artificial basin No. 5. Nearly all the muck liquor has drained from the muck in basins Nos. 3 and 4, and only a small quantity of it now flows out of the wet weather spring under or upon complainant's land. The surface of the muck in basins 3 and 4 is free from muck liquor and has hardened; and no further deposit of muck will be made in these two basins. Under these circumstances the court did not err in refusing to grant the injunction prayed for.

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. The only way to stop absolutely the flow of a small quantity of muck liquor from basins 3 and 4 at that time would have been to remove all the muck therefrom. This would be of little benefit to the complainant, and would cost the defendant $1,000, 000. In the course of time, presumably not very long, the supply of muck liquor in these two basins will be exhausted.

In Clayborn v. Camilla Red Ash Coal Co., 128 Va. 399, 105 S. E. 122, 15 A. L. R. 946, the court said:

"If * * * the loss entailed upon the appellee would be excessively out of proportion to the injury suffered by the appellants, or a serious detriment to the public, a court of equity might very properly and in accordance with recognized practice, deny the injunction and leave the parties to settle their differences in a court of law."

In Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192, involving the pollution of a stream by washing minerals therein, we find this:

"Counsel have pressed the proposition that mere convenience in the use of its property by the company does not entitle it to pour down upon the appellee's land, and into the stream on his land, the debris from the washers erected by it, and we think the contention is reasonable. But 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."

In Isenberg v. East India House Estate Co., Limited, 3 De Gex. J. & S. 273, Lord Chancellor Westbury said:

"To what end then should I exercise a...