Bartel v. Ridgefield Lumber Co.

• Decision Date: 10 October 1924
• Docket Number: 18510.
• Court: Washington Supreme Court
• Parties: BARTEL et ux. v. RIDGEFIELD LUMBER CO.

229 P. 306

131 Wash. 183

BARTEL et ux. v. RIDGEFIELD LUMBER CO.

No. 18510.

Supreme Court of Washington

October 10, 1924

Department 2.

Appeal from Superior Court, Clarke County; Simpson, Judge.

Action by Efram Bartel and wife against the Ridgefield Lumber Company. Judgment for defendant, and plaintiffs appeal. Reversed.

Edgar M. Swan, of Vancouver, for appellants.

McMaster Hall & Schaefer, of Vancouver, for respondent.

BRIDGES J.

Plaintiff seeks damages and injunction. He appeals because the decision below went against him. The points involved cannot be discussed without a finding with reference to the facts.

Ridgefield is a small mill town in the southern part of western Washington. It has a population of but a few hundred. Close by is Lake river, and on its east bank is located the respondent's sawmill. About 300 feet to the north of the mill is appellant's property. It is a farm of some 10 or 12 acres, mostly in cultivation, and has a small dwelling where appellant and his family reside. The mill was in operation at its present location when appellants bought their property and moved there, but since then changes have been made in the mill. When the wind is in the right direction, which is not infrequently, smoke, sawdust, and burned or half-burned embers emanating from the respondent's burner come to appellant's place and do material damage. The fruits and vegetables are not salable and are hardly fit for use; the visiting elements enter the house and get into the food, and clothing left in the yard is damaged. When the wind is not from the south appellants are not troubled by the burner.

Respondent's lumber mill is located at one side of the town, in what may be termed the manufacturing district. Since appellants bought their land one or two other mills have been located near that of respondent, and are in operation. It is necessary that respondent's sawdust, slabs, and other waste material be destroyed in some way. The best known method is by burning it, and the best known method of burning it is in what is commonly called a burner. Sometimes this is an elaborate affair, particularly in connection with large sawmills, being built of various expensive materials, and is many feet in circumference, and from 50 to 100 feet in height. The smaller mills, such as that operated by the respondent, generally have less expensive burners, but which for the purpose intended are to all intents and purposes as good as the more expensive ones. After respondent became the owner of the mill, and in an effort to overcome objections made by appellants, it built a burner, and has for a number of years past operated it. It is of the usual kind for mills of this character, and for the most part is made of corrugated roofing. It is located at the only place it could be located with reference to the mill, and is some 300 feet south of appellants' residence. It is conical in shape and over its top is a spark arrester which has the usual mesh. A smaller mesh would not be practicable. Into this burner are thrown sawdust, slabs, and other refuse created in the operation of the mill. Near the bottom of the burner there are a number of holes of considerable size which furnish draft. In a few places holes of medium size have been made by heavy slabs, but they merely serve as additional draft and do not materially affect the merits of the burner. The respondent has at all times kept its burner in good repair, and has operated it in a careful manner. In other words, the burner is amply sufficient for the purpose for which it is constructed, and has been operated at all times with due care.

We agree with the trial court in its finding that the burner is a 'suitable one for the operation of a sawmill of the character and capacity of the one here in question,' and that it has at all times 'been conducted in a careful and proper manner without negligence and with the use of suitable methods and devices for diminishing the effect of smoke, soot, cinders, etc., upon surrounding property,' and that 'such ashes, cinders, etc., as may be deposited upon the premises of the plaintiffs cannot be prevented from escaping through the meshes of the spark screen in the refuse burner,' and that the only way to avoid such is to stop the operation of the mill, and that the damage to the appellant 'is not due to any negligence on the part of the defendant.' Boiled down, the facts come to this, that, notwithstanding the respondent has a suitable and competent burner and maintains and operates it with due care, the appellants are damaged because of smoke, cinders, sawdust, and burning particles coming therefrom. The respondent's argument is that, since it is carrying on a perfectly lawful and very important business in a lawful and careful manner and is in no wise at fault, it ought not to be held in damages or its operation enjoined simply because of a consequential injury resulting to the appellants. On the other hand, the appellant's position is that they have a lawful right to be where they are, and that nobody, whether negligently or otherwise, has any right to injure their property, and that every man must so carry on his business as to do no material damage to his neighbor.

Here we seem to have two fundamental principles of law running directly to a headon collision, and we must decide which has the right of way. Two matters are before us: First, are appellants entitled to damages? and, second, are they entitled to an injunction? These questions are very important in this state. Our decisions on the general principles involved do not seem to be very harmonious. We have held that no damages can be recovered for injuries which are the natural result of the use of a stream as a highway when the operations are conducted in a reasonably careful manner, and that damages under such circumstances are recoverable only when based on negligence.

Mitchell v. Lea Lumber Co., 43 Wash. 195, 86 P. 405, 9 L. R. A. (N. S.) 900, 10 Ann. Cas. 231. We have at least strongly intimated that where smoke, cinders, soot, and ashes from a mill fall upon adjoining premises, no action for damages will lie, unless negligence is shown. Woodward v. West Side Mill Co., 43 Wash. 308, 86 P. 579. We have also held that noises and the jarring of buildings and the casting of smoke and cinders thereon were necessarily incident to the operation of a railroad, and damages therefor could not be recovered in the absence of negligence. De Kay v. North Yakima & Valley Ry. Co., 71 Wash. 648, 129 P. 574.

On principle, these cases would seem to hold that, if one carries on a legitimate business in the usual manner without carelessness, he is not liable for injuries resulting to adjacent property.

But we have also held that one operating a smelter without carelessness has no right to injure adjoining property by throwing thereon destructive fumes, saying:

'No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor, without compensating such for the damages actually sustained.' Sterrett v. Northport Mining Co., 30 Wash. 164, 70 P. 266.

We have also held that recovery may be had for damages to a building by the shaking of the earth caused by the construction of a railway tunnel, although no negligence is shown in connection with the construction. Farnandis v. Great Northern Ry., 41 Wash. 486, 84 P. 18, 5 L. R. A (N. S.) 1086, 111 Am. St. Rep. 1027. In Burroughs v. Grays Harbor Boom Co., 44 Wash. 630, 87 P. 937, we held that an adjoining property owner, injured by the operation of a log boom, might recover damages, notwithstanding there was no negligence in the operation of the boom. This case criticizes...