Arkebauer v. Falcon Zinc Co.

• Decision Date: 21 January 1929
• Docket Number: 112
• Citation: Arkebauer v. Falcon Zinc Co., 12 S.W.2d 916, 178 Ark. 943 (Ark. 1929)
• Parties: ARKEBAUER v. FALCON ZINC COMPANY
• Court: Arkansas Supreme Court

12 S.W.2d 916

178 Ark. 943

ARKEBAUER v. FALCON ZINC COMPANY

No. 112

Supreme Court of Arkansas

January 21, 1929

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed and cause remanded.

Dave Partain, for appellant.

E L. Matlock and C. M. Wofford, for appellee.

MEHAFFY J. Mr. Justice SMITH dissents.

OPINION

MEHAFFY, J.

The appellee, Falcon Zinc Company, owns and operates a zinc smelter located near the city of Van Buren, in Crawford County, Arkansas. Each of the appellants brought a separate suit against the appellee, each of them alleging that he owned a farm in the immediate vicinity of appellee's smelter. The suits were filed in August, 1927. The smelter had been built for several years, and appellants had alleged that the appellee had operated this smelter for a period of something more than three years, smelting large quantities of ore in its furnaces each day; that their lands, before the location and operation of the said smelter, were fertile and productive farming lands of great value, but that the appellee, during and throughout the past three years immediately preceding the filing of the suits, by and with the operation of said smelter has thrown great quantities of noxious gases, sulphur and sulfates, oxide of lead, carbon dioxide gases, and other poisonous products, the exact character being unknown to the appellants, but well known to appellee, upon and over said lands, and thereby killed the crops and vegetation growing thereon, so that, when appellants grazed stock on said lands and stock ate the grasses on which these poisonous deposits had fallen, the stock became ill and injured; and that, by reason of the conduct of the appellee, the said appellee has rendered the lands of the appellants barren and unproductive, and has greatly injured the appellants, and that plaintiffs have been damaged in the amount sued for.

The smelter filed answer, denying the material allegations in the complaint, and alleging that it began operation in March, 1923, and operated the smelter continuously up to the time of the commencement of the suits; that, if it had damaged plaintiff's land, the injury was original, and plaintiff's right of action, if any ever existed, accrued immediately, and the statute of limitations began to run against the same at said time, and that the right of action was barred because not begun within three years after they began the operation. Appellee also asked for damages in the sum of $ 500 for wrongfully suing out of an attachment.

There was come conflict in the testimony, but there was ample testimony to authorize the court to submit the question to the jury as to whether the operation of the smelter caused injury. While the evidence was in conflict, it was a question for the jury as to whether the smelter caused the damage. It would serve no useful purpose to set out the testimony at length.

At the request of the appellee the court gave to the jury the following instruction:

"The defendant in these cases pleads the three-year statute of limitation as a bar to recovery. If you find from a preponderance of the evidence that plaintiff's lands have been damaged by the operation of defendant's smelter and that the injury to the land began when defendant started the smelter in operation in March, 1923, and continued as long as the smelter was in operation, and if you further find that the damage to plaintiff's lands was original, then your verdict must be for the defendant, as plaintiff's causes of action would be barred because these suits were not commenced within three years after defendants commenced to operate said smelter."

The court also gave instruction number two, requested by appellee, which is as follows:

"If you find from a preponderance of the evidence that plaintiff's lands have been damaged by the operation of defendant's smelter, then you will find whether each tract has been permanently rendered unfit for all reasonable natural uses by the operation of said smelter, and if you find that said lands have been completely and permanently destroyed for all reasonable natural uses, you will find the difference between the market value of the lands before they were permanently damaged and the present market value of the same after being so damaged, taking into consideration the general conditions affecting the market values then and now, and your verdict should be for each of the plaintiffs for such sum as you find that each has been so damaged. If you find from a preponderance of the evidence that plaintiff's lands have been permanently damaged in part for all reasonable natural uses by the operation of defendant's smelter, then you will find the difference in the market value of each tract before it was so damaged and the present market value of the same, taking into consideration the partial permanent damage to the same, and your verdict will be for each of the plaintiffs for such sum as you find their respective lands to be damaged. If you find from a preponderance of the evidence that plaintiff's lands have been damaged only temporarily, wholly or in part, by the operation of defendant's smelter, and that, if the operation of the smelter should not be. resumed, the injury to their said lands has ceased, then you will find the difference, if any, in the rental value of each of their said tracts of land before and since the injury occurred, and your verdict will be for each of the plaintiffs for such sum as you so find each has been so damaged in the rental value of their respective tracts of land. If you find from the evidence that plaintiff's lands have not been damaged, wholly or in part, permanently or temporarily, by the operation of defendant's smelter, then your verdict must be for the defendant."

There was a verdict for the defendant, and the plaintiffs prosecute this appeal to reverse said judgment.

It is first insisted by appellant that instruction number one was erroneous. That instruction, it will be observed, told the jury, if they found that plaintiff's land had been damaged by the operation of the smelter and that the injury to the land began when the defendant started the smelter in operation in March, 1923, and continued as long as the smelter was in operation, and if they further found that the damage to plaintiff's land was original, then they...