Bartlett v. Hume-Sinclair Coal Min. Co., HUME-SINCLAIR
| Decision Date | 06 November 1961 |
| Docket Number | HUME-SINCLAIR,No. 23264,23264 |
| Citation | 351 S.W.2d 214 |
| Parties | Linden C. BARTLETT and Alice Bartlett, his wife, Plaintiffs-Respondents, v.COAL MINING COMPANY, a corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Belisle & McNabb, Butler, for appellant.
Ewing, Ewing, Ewing, Carter & Wight, Nevada, Mo., for respondents.
Plaintiff landowners sue defendant coal mining company for damages allegedly resulting from pollution of streams running through their farm lands caused by defendant's mining operations. Defendant appeals from a jury verdict and judgment in favor of plaintiffs in the amount of $1,600.
The allegations of the petition are, in substance, as follows: Plaintiffs, husband and wife, owned a 299 acre farm in Bates County. Two natural streams flowed through the farm, one bearing the name 'Walnut Creek', the other designated only as the 'east branch'. Prior to 1951 those streams afforded a supply of pure water used for domestic and farm purposes and were valuable rights and property of the plaintiffs. Defendant operated 'strip' coal mines for several years prior to 1951. In the course of those operations, defendant operated a strip mine at a point west of plaintiffs' farm, and there erected a 'tipple' and a coal processing and washing structure known as 'Tiger Tipple'. Defendant operated another such mine, 'tipple', and processing and washing structure at the town of Foster, known as the farm. Those conditions existed in 1954 and 1955 until the filing of the petition. As a result, plaintiffs suffered loss and damage in that: their cattle and other livestock were sickened and depreciated in weight and value; plaintiffs lost the use of the water as a source of supply for livestock; they lost the use of valuable pasture and crop land; their trees were killed; the land adjacent to the streams was damaged and rendered useless; the entire farm was damaged and its value decreased. Plaintiffs prayed damages and that defendant be enjoined from permitting further pollution of the streams. Defendant's answer was a general denial.
The case was tried only as to the issue of damages. The trial court deferred any ruling on plaintiffs' prayer for injunctive relief until a later date. Plaintiffs produced evidence generally tending to prove the allegations of their petition. Such portions of the evidence as are necessary for discussion of points raised by defendant will be appropriately noted.
Defendant first assigns that the trial court erred in failing to sustain its motion for judgment at the close of all the evidence because plaintiffs' evidence failed to show that defendant owned, leased, controlled or had any right of control over the land claimed to be the cause of the pollution. In our opinion the assignment is inappropriate because it is directed to matters outside of and foreign to the issue of defendant's liability for damages as pleaded, tried and submitted. The gravamen of the wrong attributed to defendant is the commission of acts creating the ditches and dumps and filling them with noxious substances which contaminated the streams--regardless of whether defendant was landowner, lessee, licensee or trespasser. The case was submitted on that theory. As stated in 66 C.J.S. Nuisances Sec. 88, verdict-directing instruction required no finding that defendant 'owned, leased, controlled or had the right to control' the land in question. The findings required were 'that the pollution of plaintiffs' east branch was caused by drainage from an area used by defendant Hume-Sinclair Coal Mining Company just east of Foster, Missouri, as a dump for refuse coal and coal impurities * * *' (and identical findings with reference to Walnut Creek and Tiger Tipple). The record abounds with uncontradicted evidence that defendant alone operated the mines at Foster and Tiger, and used the respective 'area' of each mine site 'as a dump for refuse coal and coal impurities'. Aside from the foregoing, it is inconsistent for defendant to contend on this appeal that there was no evidence it owned the land sites of Tiger and Foster mines and dumps. During the trial both parties, defendant as well as plaintiffs, treated as an existing fact that defendant was the owner of the land--even presently. Defendant submitted instructions (given by the court) which amount to voluntary admissions that it owned the land. For example, defendant's Instruction No. 4 told the jury 'that the burden of proof in this case is upon the plaintiffs to prove by the greater weight of the credible evidence (1) that harmful and polluted water did come from the defendant's land at the date charged in plaintiffs' petition;'.
Defendant further contends that plaintiff failed to make a submissible case because 'Plaintiffs' evidence failed to prove that Walnut Creek on plaintiffs' land was polluted, as that is a question for an expert and there is no such testimony'.
Defendant argues that the testimony of lay witnesses is incompetent to establish the fact that a stream is polluted. We cannot accept that proposition as an established rule of evidence. Defendant cites one authority--93 C.J.S. Waters Sec. 54. It is therein stated that ...
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