Bartlett v. Grasselli Chem. Co

• Decision Date: 28 November 1922
• Docket Number: (No. 4464.)
• Citation: 115 S.E. 451
• Court: West Virginia Supreme Court
• Parties: BARTLETT. v. GRASSELLI CHEMICAL CO.

115 S.E. 451

BARTLETT.

v.GRASSELLI CHEMICAL CO.

(No. 4464.)

Supreme Court of Appeals of West Virginia.

Nov. 28, 1922.

(Syllabus by the Court.)

Error from Circuit Court, Harrison County.

Action by Allison Bartlett against the Grasselli Chemical Company. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and case remanded.

A. W. Kopp, of Plattesville, Wis., and Hoffheimer & Templeman, Edward G. Smith, and Melvin G. Sperry, all of Clarksburg, for plaintiff in error.

E. A. Bartlett, of Clarksburg, and Hogg & Hogg, of Point Pleasant, for defendant in error.

POFFENBARGER, P. The judgment for $15,500, complained of on this writ of error, was recovered by a farmer, owning and residing upon a tract of land containing about 137.5 acres, against a corporation owning and operating a large industrial plant, situated upon a 160-aere tract of land, owned by it, in the reduction of zinc ores, upon the ground of injury to the agricultural, residential, and market values of the farm, by reason of chemical deposits upon it from fumes, gases, and dust emitted from the defendant's furnaces and carried over the land by air currents, or spreading over it through the air. One of the deposits complained of is zinc-oxide, which, having been deposited upon vegetation on the farm and eaten by live stock, has proved itself to be deleterious and fatal, in some instances, according to the contention and claim of the plaintiff, and another is sulphur-dioxide, which, it issaid, having come into contact with moisture and iron in the soil, forms or creates sulphuric acid, sulphur-trioxide, zinc-sulphate and iron-sulphate, causing excessive acidity of the soil and consequent diminution of its fertility and producing capacity.

Some of the counts in the plaintiff's declaration are so framed as to claim right of recovery upon the theory of recurrent or temporary damages, while others are so drawn as to assert right of recovery of permanent damages. The case was tried upon the theory of permanent damages. In the course of the trial, the counts for temporary damages were ignored by the parties as well as the court. A plea of not guilty was entered in May, 1920, and 13 special pleas of the statute of limitations, in September, 1920. No demurrer seems to have been interposed to the declaration or any of its counts.

The action was commenced March 7, 1919. According to the contention of the defendant, the injury, if any, dates back in its inception to the commencement of the operation of the plant, or, at least, to a time shortly thereafter, when the dust, smoke, and gases first affected the plaintiff's land, and that therefore the cause of action arose more than five years before the institution of the suit, and is barred by the statute of limitations. The plaintiff insists that the statute began to run from the date on which the injury to the land became appreciable and noticeable, about the year 1915.

A part of the plant was completed and put into operation in 1911, and additional units were added from time to time. There are ten blocks of furnaces, the first one of which was installed and put into operation in March, 1911, and the last one, October 28,

1915. In the meantime, at various dates, the other eight were installed. From November, 1916, until March, 1918, ten gas producers were constructed and put into operation, in which large quantities of coal were consumed in the production of gas for use in the furnaces. The coal so used is mined on the 160-acre tract of land on which the plant is situated. The zinc ores are brought to the plant from roasting furnaces, in Ohio, Indiana, and Pennsylvania, after a process of treatment to which they are subjected in those furnaces. In connection with the ores, considerable quantities of anthracite screenings and Pennsylvania coke are used in the furnaces. The ores treated increased from 14, 542 tons in 1911 to 60, 203 tons in 1915, and went up to 67, 262 in 1917. The anthracite coal screenings used began with 12, 320 tons in 1911 and amounted to 38, 519 in 1917. The annual consumption of Pennsylvania coke ran from 180 tons in 1911 to 13, 293 in 1916. These facts have more or less bearing upon the issue as to when the injury complained of occurred.

Notwithstanding the acquiescence of the parties and the court, in the theory upon which the case was tried and disposed of, it is necessary to determine and define the nature of the cause of action, in respect of the application of the statute of limitations. Willingness of the parties to this action to forego such an inquiry and by agreement to adjust their controversy, upon the theory of original and permanent damages, does not justify the adoption of a rule that will operate unjustly, in its application to other controversies of the same kind. An erroneous decision respecting this question, in this cause, would be a precedent which the court hereafter would be required to follow, however unjustly it might operate, or to overrule. In this connection, no force or effect can be allowed the implied agreement of the parties as to the nature of the cause of action. There was no such agreement at the date of commencement thereof. At that time, it stood unaffected by any agreement either express or implied. The date of commencement of the action, not that of the appearance and entry of pleas nor of the agreement as to the basis of trial, is one of controlling elements in the inquiry as to whether or not the right of action was barred. Going back to that point of time, we must take into consideration the nature of the cause of action as it stood then, together with the lapse of time between it and the assertion of the right of action, and determine from these circumstances when the statute began to run. We repeat that the tacit agreement between the parties, made after the institution of the action, is not an element to be considered. It may be advantageous to the defendant, and desirable on its part, to have the entire damages adjusted and by payment thereof obtain a license to continue its business, under the principle of estoppel. It may have been moved to adopt this course by the opinion that it would be in a better position to invoke lack of time as a defense. Whatever the motive may have been, this conduct or agreement was subsequent to the institution of the action. It constitutes no part of the action, wherefore no notice can rightfully be taken of it, upon the inquiry for the nature of the cause of action, or the beginning or the running of the statute.

An apparent contradiction of this conclusion may be found in certain cases, but it will be found, upon examination, to be only apparent. Public and quasi public corporations, in the exercise of their rightful powers, sometimes exceed the rights obtained by them, or inflict damages by the negligent exercise thereof. Inasmuch as their functions and operations cannot be enjoined, because of their public nature, and, under the power of eminent domain, they could have acquired right to do the things complained of, if reasonably necessary to their operations, they as well as the injured partiesmay elect to treat the injury and damages in such eases, as permanent, even though in law they may not be. Ridley v. Seaboard & R. R. Co., 118 N. C. 996, 24 S. E. 730, 32 L. R. A. 708; White v. N. W. N. C. R. Co., 113 N. C. 610, IS S. E. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639; 111. Cen. R. Co. v. Grabill, 50 111. 241; 8 Am. & Eng. Ency. L. 687. This principle was adverted to, but not applied, in a controversy between private persons, in Hargraves v. Kimherly, 26 W. Va. 7S7, 53 Am. Rep. 121; but, in that case, it was deduced from decisions in which the wrongdoers were corporations of the class here referred to. It was again mentioned as an established rule in Watts v. Norfolk & Western R. Co., 39 W. Va. 196, 19 S. E. 521, 23 L. R. A. 674, 45 Am. St. Rep. 894. In no other class of cases does it seem ever to have been adopted. This doctrine, as defined in the case of its apparent origin, 111. Cen. R. Co. v. Grabill, cited, seems to proceed upon the theory that the plaintiff may, in some cases, have two grounds of action, one for the annoyance or inconvenience occasioned and the other for deterioration of the value of his property, By reason of the wrong, and may assert both in one action. As to the former, one recovery would not bar future actions, but, as to the latter, it would. The decision in that case involves the principle of former recovery, rather than that of limitation of action.

An important factor in the determination of the character of an injury to real property and the nature of the damages resulting from it is the character of the injury itself. Though continuous, It may be slight and readily compensable in damages, as well as remediable by the injured party. Though of considerable magnitude, it may not be continuous. There may be a continuing cause without continuous injury. The latter may be Intermittent and recurrent. It may involve a trespass, or there may be injury without an actual trespass. Upon such an injury as we have here, under the multitudinous facts and circumstances disclosed by the hundreds of cases that have arisen, there have been many things to consider. It would be impossible to review all of the decisions bearing upon the question of the application of the statute or to classify them. There are some general propositions, however, that can be asserted with safety, as to the requirements of a cause of action for original and permanent damages. The injury must be constant and continuous, not occasional, intermittent, or recurrent. On this point, Judge Brannon, speaking for this court, in Henry v Ohio River R. R. Co., 40 W. Va. 244, 21 S. E. 867, said:

"Now, this embankment itself has the element of permanency, it is true, and that far complies with the rule warranting recovery of past and future damages, in one action, but it does not necessarily per se...