Bigbee Fertilizer Co. v. Scott

• Decision Date: 23 November 1911
• Parties: BIGBEE FERTILIZER CO. v. SCOTT.
• Court: Alabama Court of Appeals

56 So. 834

3 Ala.App. 333

BIGBEE FERTILIZER CO. v. SCOTT.

Court of Appeals of Alabama

November 23, 1911

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Action by Adelaide Scott against the Bigbee Fertilizer Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Steiner, Crum & Weil, for appellant.

Ray Rushton, Thetford & Mackenzie, and W. M. Williams, for appellee.

DE GRAFFENRIED, J.

This suit was brought by appellee against appellant for damages which appellee alleges in her complaint she suffered because of the maintenance by appellant of a nuisance near her premises.

The complaint alleges, in substance, that the appellant is engaged in the business of manufacturing fertilizers, and that it owns and operates a fertilizer plant situated about one-sixth of a mile from 37 acres of land, the property of the plaintiff; that in the operation of its said fertilizer plant the appellant generated fluorine gas, and permitted the same to escape through its pipes and become mixed with the atmosphere; that appellee had a peach orchard on said lands and used the balance of the property, except certain portions, upon which were certain residences, as a garden, in which were raised garden products; that fluorine gas is deadly in its effects upon all vegetable life; that said gas which so escaped from appellant's pipes settled down upon appellee's premises, killing her peach trees, destroying her corn after the same had about reached maturity, rendering it unfit for any purpose, save that of fodder, and greatly reducing the yield of the other crops on said land. The complaint alleges that the nuisance complained of had been maintained by the appellant since the ______ day of ______, 1907, and concludes as follows: "And that said fumes and gases have rendered the said buildings, hotbeds, and equipments less valuable and that on account of said fumes and gases the plaintiff was unable to cultivate profitably, or rent, or lease, or truck-farm advantageously for the current year."

1. Several grounds of demurrer were interposed to the complaint. The court held the complaint not subject to the demurrer, and the action of the court in overruling two of the grounds of demurrer which were interposed to the complaint is here insisted upon as error. It is insisted that the complaint was demurrable because it failed to show that appellee was in possession of said lands during the period covered by the injury complained of. The complaint certainly, as a whole was not subject to that ground of demurrer, because it alleges that the fruit trees of appellee, which were a part of her freehold, were destroyed. It is familiar that the owner of the title, even though the lands may be in the possession of a tenant, may sue, under the circumstances set out in the complaint, for any injury to the reversion. While the nuisance was itself temporary in its nature nevertheless, under the allegations of the complaint, while it existed, an injury was done to the reversion by reason of the destruction of the fruit trees, and, accepting the construction which appellant asks us to place upon the complaint, the appellee, as the owner of the reversion, was entitled to sue for the damages so done to the reversion. 21 Am. & Eng. Ency. Law, p. 722, subd. 2.

2. The second ground of demurrer insisted upon here is that the complaint does not show with reasonable certainty when the injuries complained of occurred. The complaint does show that the injuries occurred subsequent to some day in the year 1907, and it does show that the appellee was injured by reason of such nuisance within less than 12 months before the filing of the complaint, because the complaint concludes, as above shown, in the following words: "And that on account of said fumes and gases the plaintiff was unable to cultivate profitably, or rent, or lease, or truck-farm advantageously for the current year." For the above reason, we do not think that the reasoning of the court in the case of Sloss-Sheffield Co. v. Sampson, 158 Ala. 590, 48 So. 493, in which, so far as the allegations of the complaint were concerned, the injuries might have occurred at any time within 10 years prior to the filing of the complaint, applies in any way to the complaint in this case. The present action was for maintaining a continuous nuisance from 1907 to the day the suit was filed; and, while appellee was only entitled to recover for damages which had thereby been caused during the 12 months prior to the filing of the complaint, the complaint does show a cause of action, so far as that period is concerned. Huss v. C. R. & B. Co., 66 Ala. 472.

3. The evidence tended to show that the 37 acres, the subject of the inquiry, had been in cultivation for many years, and had been used as a garden, and that the appellee did not know of any continuing damage to her premises by reason of said nuisance until the year in which the suit was brought. The evidence further tended to show that the lands were in a high state of cultivation, and that, by means of pipes, a system of artificial irrigation had been installed thereon. It further tended to show that appellee planted the lands in corn, strawberries, cabbages, peas, and cantaloupes, and that one acre of the land was devoted to a peach orchard, and that the trees were seven years old. The evidence further tended to show that during damp weather, when the wind was from the east, the fluorine gas which escaped from appellant's fertilizer factory was blown over and settled down upon appellee's land; that said fluorine gas killed her peach trees, and materially decreased the yield of her strawberries, cabbages, and cantaloupes, and delayed the maturity of her pea crop, and that she was materially injured thereby. The evidence further tendedto show that she had two acres of corn, and that the land upon which it was planted was in a state of the highest cultivation; that the corn grew off rapidly, and gave promise of a yield of 200 bushels to the acre; and that just about the time it had reached the age when the ears should appear fluorine gas, from appellant's mill, was blown over and settled down upon it, and so injured it that it produced no ears, and was valuable only for its fodder.

During the progress of the trial, appellee's husband was examined as a witness, and was asked by her counsel the following question: "Did you have any improvements on the land by way of increasing the value of the cultivation, such as refrigerating plants and the like?" Appellant objected to this question, upon the ground that it called for irrelevant and incompetent testimony, but the court overruled the objection and permitted the witness to answer the question, and the appellant then and there duly excepted. Answering the question, the witness said: "That the land had been used as a garden for a great number of years, and that there was a system of irrigation all over it, conveying water all through it, and that there were hotbeds on the ground, heated by steam pipes, and the land was so fertilized as to bring it up to the highest point of cultivation." The appellant moved to exclude the above answer of the witness upon the above grounds, and here assigns the refusal of the court to exclude the answer from the jury as error. The material questions before the jury in this case were whether appellee's crops had in fact been injured by gas from appellant's mill, and, if so, the amount of such injury. In order that the jury might ascertain the truth as to these matters, we think it was entirely proper for the court to permit all evidence tending to show the character of the land, its fertility, the means provided and used to insure a healthy growth, and all the general surroundings as matters to go before the jury for their consideration in determining those questions.

4. While the witness Scott was on the stand, he was permitted to testify, without objection, as follows: "When the corn was about waist high, or a little less, it began to burn; the leaves turning dead. It continued to burn, and when it came time for it to ear it became so badly burnt that it failed to produce any corn. The corn was wired so as to support it, and if it had not been damaged by the fumes would have made 200 bushels to the acre." That he had been a farmer for a good many years, and was familiar with last year's seasons, and knew how rains came, etc. The witness was then asked by appellee's counsel the following question "How much would that corn have been worth on the market--200 bushels?" The appellant objected to the question, "upon the ground that the facts should be stated, in order that the jury might determine the value of the corn at the time it was injured, and that the witness, whether an expert or not, should not be permitted to testify as to what the crop was worth in dollars and cents at the time it was injured. " The court overruled this objection, and the witness was permitted to answer, to which action of the court the appellant duly and legally excepted. Answering the question, the witness said that "it was worth $200." The appellant moved to exclude the answer upon the above grounds, but the court overruled the objection, and the appellant then and there duly excepted, and this ruling of the court is here assigned as error. The question propounded to the witness did not call for his opinion as to the value of the corn at the time of its injury, but did call for his opinion as to value of the 200 bushels which, in the opinion of the witness,...