Archer v. Shields Lumber Co.

• Decision Date: 22 November 1967
• Docket Number: No. 9579,9579
• Citation: 91 Idaho 861,434 P.2d 79
• Parties: Bernard J. ARCHER, Estella A, Archer, Herman A. Flottman, Dorothy Flottman, Elva A. Erickson, Claude A. Hutchins, Plaintiff-Respondents, v. SHIELDS LUMBER CO., Inc., Defendant-Appellant.
• Court: Idaho Supreme Court

Page 79

434 P.2d 79

91 Idaho 861

Bernard J. ARCHER, Estella A, Archer, Herman A. Flottman, Dorothy Flottman, Elva A. Erickson, Claude A. Hutchins, Plaintiff-Respondents, v. SHIELDS LUMBER CO., Inc., Defendant-Appellant.

No. 9579.

Supreme Court of Idaho.

Nov. 22, 1967.

Fred K. Kondo, Priest River, Stephen Bistline, Sandpoint, for appellant.

Lyons & Hofmeister, Sandpoint, Edmund T. Brigham, Newport, Wash., for respondents.

SPEAR, Justice.

Respondents brought this action jointly as owners of certain tracts of real property situated adjacent to appellant's sawmill. They alleged that appellant's dry kiln and burner had been engligently and carelessly equipped with a semi-spherical top-screen from January 1, 1961, to the date of this action (November 20, 1963), thereby emitting burning debris, soot, smoke, and partly-burned sawdust which was carried onto their land by prevailing winds. They also alleged that this debris constantly seeped into their residences and covered their porches, lawns and truck gardens, spoiling all leafy vegetables growing therein and causing plaintiffs substantial and continued annoyance, harassment and extra cleaning work. Furthermore, they complained that these burning embers have caused them continued and justifiable apprehension and fear that a fire would ensue as a result.

Respondents Archers alleged separately that appellant's employees were forced to trespass onto their property to relieve themselves because appellant had failed to supply adequate sanitary facilities, thereby contaminating a certain spring or small well located upon their property, such well being the only source of Archers' domestic water supply. They further alleged this practice was known, or should have been known with the exercise of reasonable diligence, to appellant, and proximately caused them damages estimated at $10,000.

Respondents Archers and Flottmans further complained that a fence maintained between their boundary lines was broken numerous times as a result of appellant's employees negligently stacking logs too close to that fence. Repairs to this fence over the period herein were alleged in the sum of $250 to each party, but Archers abandoned this cause during the trial.

Respondents jointly alleged that, as a proximate cause of appellant's acts, their several parcels have each depreciated $10,000 in value; and that they have experienced substantial and uninterrupted annoyance, mental suffering, and inconvenience to their respective detriment in the sum of $5,000.

The jury returned a verdict in favor of respondents as follows:

(1) For Archers the sum of $1,000

(2) For Flottmans the sum of $500

(3) For Erickson and Hutchins jointly the sum of $250

Appellant's motion for a judgment notwithstanding the verdict under Rule 50(b) and a motion for a new trial under Rule 59(a) I.R.C.P. were denied, and from such order and the final judgment entered upon the jury's verdict, appellant has appealed.

Appellant assigns eighteen specifications of error but they may be discussed in five groups, i. e., (1) the premature giving of instructions to the jury prior to the introduction of any evidence at the trial; (2) instructions on the issue of nuisance, when nuisance had not been properly pleaded in the complaint; (3) instructions and evidence concerning the measure of damages to which respondents were entitled; (4) court's refusal to give some requested instructions of appellant because not submitted five days prior to trial in accordance with a local rule of that judicial district, though some other instructions requested by appellant at the same time were, in fact, given; and (5) failure of the trial judge to submit instructions to counsel prior to giving the same to the jury as provided in Rule 51 I.R.C.P.

In addition to that portion of the complaint in which the Archers allege they were damaged by the contamination of their water supply through deposits of urine and human feces by employees of the appellant company which had neglected to furnish proper sanitary facilities at the mill for such employees, the pertinent part of respondents' allegations are as follows:

'4.

'Continuously ever since about 1 Jan 1961, defendant has been, and still is, * * * in possession of * * * and operating on its real estate a saw-mill, a dry-kiln and a burner, which last is truncated-cone in shape. Throughout the period just mentioned that burner has been, and still is, negligently and carelessly equipped with a semi-spherical top-screen, too small in size, thus leaving flames, burning debris, and partly-burned debris to escape from the substantial portion of the top of that burner over which the top-screen above described fails to extend.

'5.

'Throughout the period from about 1 Jan 1961 to the present date, winds prevailing in the area of the real estate of plaintiffs and of defendant described above have carried smoke, soot, burning embers, and partly-burned sawdust, in huge and continued quantities, onto the parcels of real estate of plaintiffs above described. Throughout that period plaintiffs have been, and still are, maintaining residences, and attempting to maintain truck gardens, on their respective parcels of real estate above described, and the debris from defendant's above burner has constantly sepped into those residences and covered their porches and approached (s) and their laws and truck gardens (and spoiling all leafy vegetables growing in the last-named), and causing plaintiffs substantial and continued annoyance, vexation, harassment and extra cleaning work. Furthermore, part of the real estate parcels of plaintiffs above described are covered with brush and timber, and the constant deposit by defendant upon plaintiffs' properties of the burning embers (some of which are of considerable size) has caused plaintiffs great and continued and justifiable apprehension and terror that those burning embers would start a forest fire and consume plaintiffs' properties and possibly plaintiffs themselves.'

After alleging that such acts by appellant caused the real estate of each set of respondents to depreciate in value in the amount of $10,000 each, the respondents further allege:

'9.

'As a proximate consequences of the acts of defendant above complained of, plaintiffs experienced substantial continued and uninterrupted annoyance, mental suffering, and inconvenience to their respective damages as follows: plaintiffs Archer, in the sum of $5,000; plaintiffs Flottman, in the sum of $5,000; and plaintiffs Hutchins and Erickson jointly, in the sum of $5,000.'

At the beginning of the trial counsel for the plaintiffs-respondents made a brief statement concerning what was involved in the cause, and the jury was selected and sworn. Immediately thereafter and prior to the introduction of any evidence whatever the trial judge, as was his usual custom, gave some instructions to the jury. Exactly what was contained in these sixteen instructions is unknown to this court, for although appellant specifically requested, and the order for the reporter's transcript specifically provided for, inclusion of these instructions in the transcript, they do not appear therein. No explanation is given of record. However, it is contended in appellant's brief that instructions numbers 6 through 12 given by the court at the conclusion of the trial and which are included in the reporter's transcript were those to which he objected to being given at the beginning of the trial. This contention is not refuted by respondents, so we assume this is true. These instructions are as follows:

'INSTRUCTION NO. 6

'A sawmill of planing mill is not a nuisance per se, but its location and manner of operation may constitute it a nuisance in fact, for example where the noise or the dust or the smoke or the soot or the cinders or the sawdust, or a combination of any two or more of these factors, unreasonably interfere with the enjoyment of their property by landowners adjoining or nearby who are not abnormally sensitive to above factors or to any combination of them.

'INSTRUCTION NO. 7

'Under the laws of Idaho, anything which is injurious to health or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, is a nuisance. Damages may be recovered by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.'

'INSTRUCTION NO. 8

'The depositing of offensive substances, such as human urine or human feces or excreta, upon a neighbor's land constitutes a nuisance as to that neighbor for which he is entitled to recover such damages, if any, as he has sustained. Therefore, with regard to plaintiffs Archer, if the find from a preponderance of the evidence that such offensive substances were deposited on the Archers' land, then and in that event, and provided the evidence in this regard fulfills the requirements of the other instructions on this particular point, the Archers are entitled to recover from defendant. It is not essential to such recover by the plaintiffs Archer that you should find by preponderance of the evidence that their water supply was contaminated; however, if you do so find, that fact is an element which you must consider in assessing the amount of the damages sustained by the Archers through the depositing of those offensive substances.

'INSTRUCTION NO. 9

'You are instructed that a land owner may use his land in any manner which he sees fit provided it is not for an unlawful purpose, but he shall so use and enjoy his property that his use of it shall not be injurious to the equal enjoyment by others of their adjoining or nearby property.

'INSTRUCTION NO. 10

'If from a preponderance of the evidence you find that during the period from about 1 Jan 1961 until about 1 Aug 1962 defendant's employees continuously trespassed upon the real estate of plaintiffs Archer and there deposited urine and human feces or...