Dahl v. Utah Oil Refining Co.

• Decision Date: 20 June 1927
• Docket Number: 4478
• Citation: 71 Utah 1,262 P. 269
• Court: Utah Supreme Court
• Parties: DAHL v. UTAH OIL REFINING CO

262 P. 269

71 Utah 1

DAHL v. UTAH OIL REFINING CO

No. 4478

Supreme Court of Utah

June 20, 1927

Rehearing Denied December 29, 1927.

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Hilda C. Dahl against the Utah Oil Refining Company. Judgment for plaintiff and defendant appeals.

REVERSED, and new trial granted.

Ball Musser & Mitchell, of Salt Lake City, for appellant.

H. L Mulliner, of Salt Lake City, for respondent.

CHERRY, J. THURMAN, C. J., STRAUP and HANSEN, JJ., and PARKER, District Judge, concur. PARKER, District Judge, sat in lieu of FRICK, J., absent on account of illness.

OPINION

CHERRY, J.

This is an action for damages to real property on account of an alleged nuisance. The plaintiff had a verdict and judgment for $ 500, from which defendant has appealed. The case went to the jury upon the issue of whether the plaintiff's dwelling house had been rendered uncomfortable and undesirable for residence purposes and its value thereby depreciated, in consequence of gases, odors, and fumes being carried to and discharged thereon, from an oil refining plant operated by defendant.

There are numerous alleged errors occurring during the trial which the appellant has assigned and argued, but we deem it necessary to consider only the main question of whether the evidence sustains the verdict, which question was raised by a request for a directed verdict for the defendant and by a motion for a new trial.

The plaintiff's property consists of a 4-room dwelling house situated at the southwest corner of the intersection of Seventh North and Third West streets in Salt Lake City. It has been for many years, and was at the time of trial, occupied by the plaintiff and her children as a dwelling house. The oil refining plant of the defendant was established in 1909, on a small scale. It has since been enlarged until it now occupies an area of 120 acres. It is situated northwesterly from plaintiff's house, the distance from plaintiff's house to the nearest point of defendant's premises being about 600 feet. The main part of the oil refining plant, where the furnaces, stills, storage tanks and smokestacks are situated, is considerably farther distant from plaintiff's house. Across the street on both the north and west from plaintiff's house are vacant lots not owned by defendant upon which are dumped heaps of rubbish and waste materials. In the street west of plaintiff's house is an electric railroad track, and one block west is the roundhouse, shops, and yards of the Oregon Short Line Railroad Company. Within a few blocks north and northeasterly is situated a hospital, two public bathing resorts, a gravel pit or works, and a rock crusher, and just north of the rock crusher is the city estray pound and crematory. Between the plaintiff's house and the defendant's plant are two open waste ditches carrying overflow and waste sulphur water from the bathing resorts mentioned. The ground, especially north and west of plaintiff's house, is low and damp and is occupied generally for industrial and manufacturing purposes.

The operation of defendant's plant consists of the distillation and separation from crude oil of gasoline, kerosene, and lubricating oils. Crude oil is transported to the refinery in tank cars and is pumped thence either into storage tanks or into stills. By the application of heat through furnaces at the bottom of the stills the crude oil is distilled into vapor, which is cooled and condensed through pipe coils, and at various stages gasoline, kerosene, oil, etc., are taken off. The works included numerous furnaces, smokestacks, stills, process and storage tanks, absorption plant, acid plant, etc. The refinery uses a closed system designed to confine and capture and to utilize and consume all acids, gases, and fumes and is maintained and conducted in accordance with modern standards and approved methods. About 360 men are regularly employed in the works. The average daily consumption of fuel is 80 tons of coal, 700 barrels of fuel oil, and 1,000,000 cubic feet of gas. The daily production is 110,000 gallons of gasoline and 150 barrels kerosene. Distances from the plaintiff's house to other relevant points are as follows: To the nearest process tank of defendants plant, 930 feet; to other and larger tanks, 1,100 to 4,520 feet; to the nearest stills on defendant's property, 1,270 feet (other stills are farther away); to the defendant's absorption plant, 2,500 feet; and to its acid plant, 3,430 feet; to the railroad roundhouse, 1,090 feet; to the estray pound and crematory, 2,130 feet. There is much coal smoke and soot in the locality coming from various sources.

The foregoing facts are uncontradicted.

The plaintiff's case was restricted to a complaint that her property was rendered uncomfortable and undesirable for residence purposes and thereby depreciated in value in consequence of gases, odors, and fumes being carried into and around it from defendant's plant. Excluding the opinion evidence of depreciated value and amount of damages, we excerpt the plaintiff's evidence relied upon to establish defendant's liability as follows:

Mrs. Benjamin Bytheway testified that she has lived a near neighbor to the plaintiff for 24 years; that during and since the year 1921, she has observed fumes from the operation of the oil works, fumes, she thought, were from an acid tank; that it was something disagreeable, a strong odor, had a kind of sting in it, and woke her up at nights and she had to get up and close the doors and windows; that she was sensitive and did not sleep well; that she knew of the plaintiff closing her doors and windows when the fumes were coming; that the fumes occurred every week and sometimes twice a week and lasted from an hour and a half to two or three hours, that a few years ago it used to make her quite sick, but she had lived there so long that she was getting used to it; that it was disagreeable at any time but sometimes it was more offensive; that she could see a kind of bluish vapor that goes up; that she could smell some of the fumes every day, but about two or three times a week they were offensive like they were cleaning out some stills; that across the street north from where the plaintiff and witness live is a vacant lot which is flooded every time the pool in the bathhouse is emptied; that the water stands there in a pool and overflows and gives off a disagreeable, sulphury, sickening smell; that a flume had been put in lately and that now the odor from the water does not travel as far as her house; that the fumes and the smoke and the fear of the oil works made her home uncomfortable.

Oscar Mark Olsen testified: That for ten years he had lived a few rods east of the plaintiff's house; that he noticed gas or odor from the oil plant about three or four times a week. That it was "just like you were frying beefsteak or round steak; it is the same kind of an odor only very strong. We put our windows down, shut the doors, and it will creep in anyway. You can't keep it out, and in the summer time it is terrible. We would rather enjoy the heat inside than to enjoy that odor by having the windows open." "We have to keep our windows and doors shut, not 24 hours a day, but just when it is at its most, and then we open them up, and then when it comes again we close them again, and we have had that to contend with for years." That he has known of times when the odor lasted all day and at other times for three or four hours.

Miss Elva Dahl, a daughter of the plaintiff, testified: That she had lived with her mother during the last 15 years and had been disturbed by fumes from the oil works. That she noticed the fumes early in the morning when going to work. "It is terrible. You have to put your handkerchief to your nose to keep from smelling those terrible fumes." That the "fumes come into the house at night during the summer time and wakes us up, and we have to get up and close the doors and windows." That the condition has been worse since 1921. That she noticed fumes particularly in the mornings on her way to work, not every morning but four or five times per week. "It smells like rotten eggs-- it is the rottenest smell you ever smelled in your life." That she never smelled rotten eggs. That it does not smell like a decaying or rotting thing. That it more like gas. That she was not at home long enough to know how long the smell lasts. That she noticed the smell three or four times a week in the mornings when she left home and at nights when she returned. That lots of times she did not notice it. "When the windows are down you can't smell it in the house. Many a time have we had to close the doors and windows in the summer, that stench is so bad, * * * and it has been so hot in the house we have had to lay on the floor to keep cool. Living this way we have all been as healthy as anybody."

Hilda Dahl, the plaintiff, testified: "First moved into house 41 years ago, and lived there continuously since except for 16 years when the property was rented. Have lived there the last 15 years. During the last five years have noticed the odor from the oil works. Don't think it has affected me so much, for I am well anyway, but I don't think it is good for anybody's health. The odor is bad. It is not constant. It comes pretty often, but not every day. Have felt it more last winter and this winter. In summer time it is pretty bad because the windows are open. In winter the doors and windows are shut, and you don't get it unless you go outside. It affects me so I want to have the doors and windows shut. I don't particularly get sick or like that, but it is something I would not like to have very often if I can help it. It will waken me up at night if the...