Carson v. Hercules Powder Co.
| Decision Date | 16 May 1966 |
| Docket Number | No. 5--3898,5--3898 |
| Citation | 240 Ark. 887,402 S.W.2d 640 |
| Parties | Kelsey CARSON, Appellant, v. HERCULES POWDER COMPANY, Appellee. |
| Court | Arkansas Supreme Court |
Cecil C. Matthews, Macom & Moorhead, Stuttgart, for appellant.
Wright, Lindsey & Jennings, Little Rock, for appellee.
This is a suit seeking injunctive relief and damages. The record is voluminous, containing 375 pages of testimony. The facts are substantially as follows.
Appellant, Kelsey Carson, is a commercial fisherman and has fished approximately a 30-mile stretch of Bayou Meto, a non-navigable stream, since 1927. He claims to have permission of the riparian owners along this stream, mostly oral permission with the exception of a written agreement with one Nelson Crum. Since 1951 he has lived on the bank of the stream in his own house located on the farm of W. W. Walton. He does not own any land but has an oral agreement with Walton to live on his land for the rest of his life. Although he lists the riparian owners with whom he has permission to fish, the record does not disclose actual ownership of the land by them. The appellant sells fish commercially in wholesale lots of from 2,000 to 3,000 pounds. He was required to obtain from the Arkansas Game and Fish Commission, in addition to the regular fishing license, a hoop net and wings license at an annual cost of $260.00.
Appellant claims that the appellee, Hercules Powder Company, in the operation of its plant near Jacksonville, Arkansas has polluted Bayou Meto by discharging into it phenolic materials causing fish kills, creating a rotten egg odor, and making the fish unedible and unsalable.
Hercules took over the operation of the plant at Jacksonville in January 1962. Because of the alleged pollution appellant did not procure a fishing license in 1961--62--63--64--65. He testified that fishing was his sole occupation but during the years he did not fish he repaired his nets, worked on boat rows, net sets, and other paraphernalia. Appellant is 55 years old and in good health. His fishing license permitted him to fish anywhere in the State of Arkansas. It was stipulated that appellant's federal income tax returns showed that he earned $1,741.47 in 1956; $1,742.29 in 1957; $4,090.40 in 1958; $1,222.41 in 1959; $2,549.33 in 1960; $28.92 in 1961; and $1,958.72 in 1962.
Exhibits introduced into evidence show the discharge of effluent into Rocky Creek from the Hercules plant and pictures of dead fish along the stream.
Marvin L. Wood, director of the Arkansas Pollution Control Commission, testified that he conducted studies, examinations and investigations of Bayou Meto and investigated fish kills in 1959, 1963 and 1964. This study resulted in a hearing before the Commission on April 24, 1963 which culminated in a cease and desist order by the Commission on the 29th of May, 1963, and appears as Exhibit #16. A transcript of the proceedings before the Commission was admitted as Exhibit #17. In the above order the Commission found that Hercules Powder Company is discharging large quantities of industrial waste into the waters of Bayou Meto in the vicinity of Jacksonville, Arkansas containing chemical substances in quantities highly toxic to fish and other aduatic life; that the foregoing constitutes pollution within the meaning of Act No. 472 of the Acts of Arkansas, 1949 (Ark.Stat.Ann. § 82--1902 et seq. (Supp.1965)) in that the discharge of said industrial waste into the waters of Bayou Meto has created a public nuisance and has rendered such waters harmful and detrimental to public health, safety and welfare and to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, and to fish and other aduatic life. In the order Hercules was directed to submit to the Arkansas Pollution Control Commission primary plans and specifications within 120 days from the date of the order and final plans within 45 days thereafter for the construction of such treatment facilities as might be necessary to abate the aforesaid pollution. According to the record this order has been fully complied with by Hercules and for that reason the matter or injunctive relief is not before us on appeal. The witness, Wood, further testified that the Commission was unable to determine the cause of the fish kill in the latter part of 1963 and the one in July of 1964. Wood also testified that the runoff of water from agricultural land is a factor in the presence of phenolic materials in lakes and streams and that odor is not a reliable scientific test of pollution as a...
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