Cities Service Co. v. State, 74--1450

• Decision Date: 14 May 1975
• Docket Number: No. 74--1450,74--1450
• Citation: 312 So.2d 799
• Parties: CITIES SERVICE COMPANY, Appellant, v. STATE of Florida et al., Appellees.
• Court: Florida District Court of Appeals

Page 799

312 So.2d 799

CITIES SERVICE COMPANY, Appellant, v. STATE of Florida et al., Appellees.

No. 74--1450.

District Court of Appeal of Florida, Second District.

May 14, 1975.

Rehearing Denied June 9, 1975.

T. Paine Kelly, Jr., W. S. Rodgers, Jr., and Ted R. Manry, III, of Macfarlane Ferguson, Allison & Kelly, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., and Kenneth F. Hoffman, Asst. Atty. Gen., Tallahassee, for appellees.

GRIMES, Judge.

This is an interlocutory appeal from a partial summary judgment on liability entered against the appellant.

The appellant, Cities Service Company (Cities Service), operates a phosphate rock mine in Polk County. On December 3, 1971, a dam break occurred in one of Cities Service's settling ponds. As a result, approximately one billion gallons of phosphate slimes contained therein escaped into Whidden Creek and thence into the Peace River, thereby killing countless numbers of fish and inflicting other damage.

Appellee, The State of Florida (State), filed suit against Cities Service seeking injunctive relief as well as compensatory and punitive damages arising out of the dam break. The court granted an injunction for a limited period of time and struck the claim for punitive damages. Neither of these points are raised on this appeal. Later the court entered an order granting the State's motion for partial summary judgment on liability. The premise for this order was that Cities Service was liable without regard to negligence or fault for the damage occurring by reason of the escape of the phosphatic wastes into the public waters of the State of Florida.

The determination of this appeal necessarily requires the consideration of the doctrine of strict liability for the hazardous use of one's land which was first announced in Rylands v. Fletcher, 1868, L.R. 3 H.L. 330. In that case the defendants, who were millowners, had constructed a reservoir upon their land. The water broke through into the shaft of an abandoned coal mine and flooded along connecting passages into the adjoining mine of the plaintiff. When the case reached the Exchequer Chamber, Justice Blackburn said:

'We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so he is prima facie answerable for all the damage which is the natural consequences of its escape.'

This statement was limited in the House of Lords to the extent that Lord Cairns said that the principle applied only to a 'nonnatural' use of the defendant's land as distinguished from 'any purpose for which it might in the ordinary course of the enjoyment of land be used.'

Since that time there have been countless decisions both in England and America construing the application of this doctrine. Most of the early American decisions rejected the doctrine. However, the pendulum has now decidedly swung toward its acceptance. W. Prosser, The Law of Torts § 78 (4th ed. 1971). According to Prosser, by 1971 the doctrine had been approved in principle by thirty jurisdictions with only seven states still rejecting the principle.

While the application of the doctrine has not been specifically passed upon by the appellate courts of Florida, an early Supreme Court case implies its acceptance. In Pensacola Gas Co. v. Pebbly (1889) 25 Fla. 381, 5 So. 593, the plaintiff claimed damages which resulted when a neighboring landowner constructed a gas works and allowed refuse to spill out onto the land and sink through the sand into the common water thereby polluting the plaintiff's well. The trial court apparently charged the members of the jury that the plaintiff would be entitled to a verdict if they determined that the plaintiff's wells were rendered unfit for use by the defendant without regard to the question of negligence. In affirming a judgment for the plaintiff, the Supreme Court said:

'The appellant gas company had the right to use the water in and about the gas-works as they pleased, but they had no right to allow the filthy water to escape from their premises, and to enter the land of their neighbors. It was the duty of the company to confine the refuse from their works so that it could not enter upon and injure their neighbors, and if they did so it was done at their peril; the escape of the refuse filthy water being in itself an evidence of negligence on the part of the gas company.'

Among the cases cited for this proposition was Ball v. Nye, 99 Mass. 582, which was one of the early American decisions approving the strict liability doctrine of Rylands v. Fletcher.

There are two reported circuit court decisions on the subject, both coincidentally arising out of the escape of phosphatic wastes from a reservoir maintained in connection with a phosphate mining operation. In 1953, the Circuit Court of Hillsborough County refused to apply the doctrine of Rylands v. Fletcher in Ague v. American Agricultural Chemical Company, Cir.Ct. Hillsborough Co. 1953, 5 Fla.Supp. 133. Yet, sixteen years later the same court in Caldwell v. American Cyanamid Co., Cir.Ct. Hillsborough Co. 1969, 32 Fla.Supp. 163, adopted the doctrine as limited to the non-natural use of land and denied a motion to dismiss the allegations of the complaint alleging strict liability.

In early days it was important to encourage persons to use their land by whatever means were available for the purpose of commercial and industrial development. In a frontier society there was little likelihood that a dangerous use of land could cause damage to one's neighbor. Today our life has become more complex. Many areas are overcrowded, and even the non-negligent use of one's land can cause extensive damages to a neighbor's property. Though there are still many hazardous activities which are socially desirable, it now seems reasonable that they pay their own way. It is too much to ask an innocent neighbor to bear the burden thrust upon him as a consequence of an abnormal use of the land next door. The doctrine of Rylands v. Fletcher should be applied in Florida.

There remains, however, the serious question of whether the impounding of phosphate slime by Cities Service in connection with its mining operations is a non-natural use of the land. In opposition to the State's motion, Cities Service filed an affidavit of the manager of the plant where the dam break occurred. The affidavit points out that the property is peculiarly suitable for the mining of phosphate and that the central Florida area of which Polk County is the hub is the largest producer of phosphate rock in Florida. It further appears that Florida produced over 80% Of the nation's marketable phosphate rock and one-third of the world production thereof in 1973. The affidavit goes on to explain that the storing of phosphate slimes in diked settling ponds is an essential part of the traditional method of mining phosphate rock. Hence, Cities Service argues that its mining operations were a natural and intended use of this particular land.

There have been many American cases which have passed upon the question of whether a particular use of the land was natural or non-natural for the purpose of applying the Rylands v. Fletcher doctrine. Thus, Prosser, Supra, states at page 510:

'The conditions and activities to which the rule has been applied have followed the English pattern. They include water collected in quantity in a dangerous place, or allowed to percolate; explosives or inflammable liquids stored in quantity in the midst of a city; blasting; pile driving; crop dusting; the fumigation of part of a building with cyanide gas; drilling oil wells or operating refineries in thickly settled communities; an excavation letting in the sea; factories...