Columbian Carbon Co. v. Tholen

• Citation: 199 S.W.2d 825
• Decision Date: 06 February 1947
• Docket Number: No. 11815.,11815.
• Parties: COLUMBIAN CARBON CO. v. THOLEN.
• Court: Texas Court of Appeals

199 S.W.2d 825

COLUMBIAN CARBON CO. v. THOLEN.

No. 11815.

Court of Civil Appeals of Texas. Galveston.

February 6, 1947.

Rehearing Denied February 27, 1947.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Suit by R. B. Tholen against the Columbian Carbon Company to recover damages resulting from defendant's maintenance of a private nuisance. From a judgment for plaintiff, defendant appeals.

Affirmed.

Austin Y. Bryan, Jr., and Ira P. Jones, Jr., both of Houston, for appellant.

Ewing Werlein and Presley E. Werlein, Jr., both of Houston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 113th District Court of Harris County, rendered in part upon a jury's verdict on special issues and in part on independent findings of the court itself from the evidence, awarding appellee an aggregate of $6,326 as damages against appellant, resulting from its operation of its carbon-black plant about three-fourths of a mile southeast of appellee's home near Fairbanks, in Harris County, Texas, as the necessary result of which operation great quantities of processed carbon-black and soot were constantly emitted therefrom and deposited upon the appellee's property, to its material depreciation in value, and to the discomfort, annoyance, and inconvenience of himself and his wife.

Of such total, $2,000 was apportioned to the diminished value of the property, $4,000 to the unreasonable discomfort, annoyance, and inconvenience to the appellee's wife and himself in their persons, and the remaining $326 for interest on the two thousand dollar diminished-value sum, from the time of the infliction of such damage to the date of the trial below.

The court and jury, under a definition of that legal term, given by it to them, found on the facts that the operation of appellant's plant constituted a private nuisance against the appellee of a permanent character, which resulted necessarily from the voluntary and intentional operation of such plant by the appellant, after full knowledge upon its part that the same perforce had theretofore so caused, and would continue to cause, such injuries and damage to the appellee personally, and to his property.

The court also, in explanation of its stated definition to the jury of what constituted such a private nuisance as the appellee so declared upon in his suit, described the terms "permanent" and "temporary."

The definitions referred to, in his verbis, were these:

(1) "You are instructed that by the term `nuisance' as used in this charge is meant any condition, brought about by one party in the use of his property, so unusual and excessive that it necessarily causes injury or damage or harm or inconvenience to another party in the use and enjoyment of his property, substantially, materially and unreasonably interfering with the latter's comfort and proper use and enjoyment of his property, taking into consideration the nature and use of the property of both parties and the character of community in which they are situated, and which condition would be substantially offensive, discomforting and annoying to persons of ordinary sensibilities, tastes and habits living in the locality where the premises are situated."

(2) "By the term `permanent' as used in the foregoing charge is meant a condition of such a character and which exists under such circumstances that it will be presumed to continue indefinitely. By the term `temporary' as used in this charge is meant any condition, which is not permanent."

In this court, as it likewise did below, the appellant very earnestly and ably attacks the recovery so allowed against it, upon what it urges to be a fundamental ground— that is, that there neither was nor could have been any liability against it in this suit without both allegations and proof of negligence on the part of the appellant in the construction, location, or operation of, its plant, none of which the appellee had made.

In other words, after correctly asserting that the appellee had made no such charges of negligence, it further pled and offered proof to substantiate these, among other details, of such overall defensive position as, in substance, are thus detailed in its brief:

"(a) Its carbon black plant, of the most modern construction and equipment known to the sciences, was constructed in a natural, reasonable and expected location for a carbon black plant—the Fairbanks oil field in Harris County, Texas. The construction, in similar manner, being prudently, carefully and reasonably conducted, following which the operation was in a reasonable, careful, prudent and non-negligent manner; and, therefore, in Texas, appellant's plant was not a nuisance in fact or per se, and it became necessary for appellee to plead and prove an unreasonable use and operation of appellant's land, premises, and plant, amounting to negligence.

"(b) That the location of appellant's plant was in a natural, contemplated, and reasonable spot and point—to-wit: the source of its supply of raw material, the Fairbanks Oil Field—and therefore its operation in a non-negligent manner could not in law and fact become a nuisance.

"(c) Appellant's plant, being located in a natural, proper location, for a carbon black plant, to-wit: the Fairbanks oil field, the appellee has waived the right and is estopped to complain of the operation of appellant's plant, because appellee with full knowledge of the character of the area, an oil field, purchased his property and built his home.

"(d) Other sources of tremendous volume of free carbon, such as burning-pits, flares, and railroad engines, were at and adjacent to the property of the appellee, prior to appellant's entry into the field, and such sources have been throwing vast quantities of carbon into the air and onto appellee's property, with the required necessity of separation of sources and proximate cause, with the result that appellee's annoyances and inconvenience and damage, if any, not admitted by appellant, came from these other sources and not appellant's plant.

"(e) Appellant's operation is reasonable and proper and free of negligence and in accord with the custom and usage of other areas and industrial operations giving off smoke, gases, and soot, in that any loss of solid bodies, if any, in appellant's smoke is within the permissible ranges found as a fact by ordinances not to amount to annoyance or nuisance, in such cities as St. Louis and Pittsburgh.

"(f) Appellant's operation cannot first in law and fact be a nuisance, and secondly, a nuisance of a permanent nature, because appellant is spending large sums in improvement of known facilities for capturing carbon, with undisputed expectation of improvement approaching 100 per cent within the near future."

These quoted grounds of attack upon the theory of the cause, as so declared upon by the appellee, and submitted by the court to the jury under special issues deemed by it to embody all the material issues of fact raised by the pleadings and evidence from both opposing parties, were injected by it into all the proceedings of the trial; based thereon, it objected to the appellee's declaration of his cause of action for such a nuisance as he claimed under, because he charged no such negligent operation of its plant; it challenged the given special issues, the sufficiency of the evidence to sustain the jury's answers thereto, and submitted instead its own opposing definitions, specially-requested charges of the court, and inquiries seeking to elicit the facts as alleged in its opposing pleadings.

It would be supererogatory to undertake tracing the appellant's extended pursuit down through the whole trial, including a great bulk of testimony presented by it as in demonstration of its stated defense against the principles of law and procedure governing the cause, as so tendered by the appellee under his pleadings and testimony, and accepted by the trial court as establishing the kind of private nuisance he so rested his cause upon.

Suffice it to repeat that the gist of appellant's entire position was that, under the law of Texas, no such a recovery as was sought here, without allegations and proof of negligence against the appellant in either the construction, location, or operation of its plant, would lie, when, under the self-evident condition of the record, and the direct concession of the appellee himself, both in the trial court and on this appeal, there were neither such allegations nor proof.

Among many others, perhaps the leading authorities the appellant—in the main— depends upon for the support of such position, are these: Cameron Compress Co. v. Whitington, Tex.Com.App., 280 S.W. 527; City of Corsicana v. King, Tex.Civ.App., 3 S.W.2d 857; Gulf, C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 52 L.R.A. 293, 86 Am.St.Rep. 835; Galveston H. & S. A. R. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A., N.S., 367; Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W. 2d 565; Consolidated Kansas City Smelting & Refining Co. v. Gonzales, 50 Tex.Civ.App 79, 109 S.W. 946; 27 R.C.L., 160; Barreda v. Milmo Nat. Bank, Tex.Com.App., 252 S.W. 1038; ...