Dutton v. Rocky Mountain Phosphates

• Decision Date: 09 April 1968
• Docket Number: Nos. 11205,11214,s. 11205
• Citation: 151 Mont. 54,438 P.2d 674
• Parties: David DUTTON et al., Plaintiffs and Respondents, v. ROCKY MOUNTAIN PHOSPHATES, Defendant and Appellant. Edward MOLLENBERG et ux., Plaintiffs and Respondents, v. ROCKY MOUNTAIN PHOSPHATES, Defendant and Appellant.
• Court: Montana Supreme Court

Page 674

438 P.2d 674

151 Mont. 54

David DUTTON et al., Plaintiffs and Respondents, v. ROCKY MOUNTAIN PHOSPHATES, Defendant and Appellant.

Edward MOLLENBERG et ux., Plaintiffs and Respondents, v. ROCKY MOUNTAIN PHOSPHATES, Defendant and Appellant.

Nos. 11205, 11214.

Supreme Court of Montana.

Submitted Nov. 27, 1967.

Decided March 20, 1968.

Rehearing Denied April 9, 1968.

Wade Dahood, Anaconda, H. A. Bolinger, Jr., Bozeman, Malcolm MacCalman (argued) Deer Lodge, for appellant.

Boone & Karlberg, Missoula, Drysdale & Sabo, Bozeman, Karl R. Karlberg (argued) Missoula, Alfred F. Dougherty (argued) Helena, for respondents.

PAUL G. HATFIELD, District Judge.

These appeals, No. 11205 with regard to the damage feature, and No. 11214 with regard to the injunction feature, were appealed separately with separate briefs and partially separate transcripts. This opinion will determine them together as the facts apply to both appeals.

In the Court below, No. 16469, David Dutton, et al. v. Rocky Mountain Phosphates, Inc., was filed in the District Court of Powell County in February 1964. Also, cause No. 16470 was filed by Edward Mollenberg and his wife against the same defendant in Powell County. In both cases the plaintiffs individually asked for injunctive relief to permanently restrain the operation of defendant's manufacturing plant at Garrison, Montana. Each plaintiff also asks for compensatory damages against the defendant and all except Mollenberg ask for punitive damages.

The cases were consolidated for trial and the place of trial was transferred to Gallatin County before the Honorable W. W. Lessley, Judge of the Eighteenth Judicial District. As there are several plaintiffs and more than one cause consolidated for trial, the parties will be referred to by name where necessary.

The trial of the injunctive feature was begun on May 5, 1965, and after extensive testimony and exhibits an order was entered denying the injunction pendente lite, but directing that the defendant at its own expense initiate a testing program under the independent direction of the Industrial Development of Engineering Research at Montana State University, Bozeman, Montana; that the testing agency make reports to the court and to the attorneys of record; and that the court retain jurisdiction of the question of injunctive relief until further order of the court.

The jury trial was begun on March 21, 1966, the jury trying the damage aspect and the court trying the injunctive feature. The jury awarded compensatory damages to each plaintiff which in the aggregate totalled $113,283.80 and will be detailed below. The jury also awarded $10,000 punitive damages collectively to all plaintiffs except the Mollenbergs. Judge Lessley denied the permanent injunction. The defendant moved for a new trial and for judgment, notwithstanding the verdict, both of which were denied by Judge Lessley. The defendant appealed from the jury verdict and judgment and the plaintiffs appealed from the Findings of Fact, Conclusions of Law and Judgment denying the injunction.

The defendant is a Montana corporation formed in 1959 for the purpose of manufacturing defluorinated phosphate, a mineral animal feed supplement.

The defendant's President, Bryce Rhodes, is admittedly an expert in the United States on the processing or defluorination of phosphate rock and also expert with relation to the emission of fluorine from the process and its subsequent effect on livestock and growing crops. Bryce Rhodes and the plant manager, Adrian Mather, have degrees in chemistry and have extensive experience with fluorine and defluorination of phosphate rock.

The plaintiffs are ranchers owning land and cattle within a radius of 15 miles of Garrison, Montana.

Garrison, Montana, is a rural community situated at the junction of the Little Blackfoot and Clark Fork Rivers in Powell County, Montana. The lands within an approximate 15 miles radius of the community are agricultural in character and best suited for the production of grass and hay. These lands have for many years been devoted to the raising of cattle and other livestock.

The manufacturing of defluorinated phosphate consists basically of treating finely ground phosphate rock by either of several methods to release most of the fluorine in the rock so that the finished product will have not more than 18/100 of one percent of fluorine content. The original rock at the beginning of the process herein involved had fluorine content ranging from 3.3 percent to 4.17 percent depending on its source. Unless captured, the fluorine compounds called 'fluorides' are emitted into the atmosphere.

Fluorine is a very active chemical agent which never exists free and independent in nature. It is a colorless, odorless and tasteless gas. It is present in all vegetation and in all tissue. Fluorine, when ingested by animals in excessive amounts, can cause varying degrees of injury. Also, fluorine can cause damage to coniferous trees. This damage is called fluorosis.

Fluorine toxicosis is similar in all species of cattle. It involves the teeth, bones and the well-being of the animals. The degree of toxicosis depends upon the amount and period of ingestion of fluorine and also upon the solubility of the fluoride compounds ingested. Excessive fluorine is retained by the animal and builds up a toxic condition over the period of ingestion. The danger level of fluorine in forage for safe ingestion by livestock is approximately 50 parts per million and perhaps as low as 30 parts per million, depending on the fluoride compound and the age and use of cattle; for instance, dairy cattle ingest more feed than beef cattle.

Young cattle are damaged by excessive fluorine ingestion during the time they are forming permanent teeth and immediately after the permanent teeth erupt. Excessive fluorine ingestion also stimulates bone growth and results in hypostatic material forming on the pereostio or straight portion of the bone. It also causes mild ossification of the tendons and the periosticular structure. This results in lameness in the animal. In severe cases the afflicted animal may refuse to stand to avoid pain. Secondary effects are similar to symptoms of malnutrition and starvation. In coniferous trees, especially Douglas Fir and Ponderosa Pine, severe cases result in shedding of needles and death of the tree.

The defendant started operation in April 1960 by leasing the Domestic Manganese Company plant near Butte, Montana. There the phosphate rock produced near Garrison was treated with phosphoric acid, sulphuric acid and water. This mixture released approximately 50 percent of the fluorides from the rock by chemical reaction. The mixture then was heated in a gass fired rotary kiln to 2,400 degrees which roasting released practically all the fluoride compounds remaining in the rock.

In 1962 the officers of the defendant corporation decided to move to Garrison, Montana. A surplus plant at Henderson, Nevada, was purchased. In April 1962 the Garrison plant site of 53 acres of land was purchased from plaintiff Mollenberg for $15,000. Construction was begun on the Garrison plant.

In 1963 a nuisance action was started at Butte which resulted in Judge Fall issuing an injunction restraining operation. This court held the injunction improperly issued and injunction was suspended until July, 1, 1963. Supreme Court File No. 10505.

The company moved to Garrison and began production on August 2, 1963, using 400 tons of materials which had been partially treated in Butte by mixing with acids and water which released about 50 percent of the fluoride compounds. When the operations began on August 2, 1963, at Garrison, the plant was designed as the former plant at Butte had been. In August 1963, scrubbing equipment to remove or scrub out the fluoride compounds released by the roasting process had been designed but were not operating. They did not operate until the middle of September 1963. Mixing operations began in the so-called den on August 28, 1963. The scrubber for the mixing den did not operate until October 5, 1963.

In August 1963, with no scrubbers operating, the plant emitted 12,600 pounds of fluorides.

Within a few days after operations were begun at Garrison in August 1963, complaints of nuisance were received by Mr. Rhodes and a public meeting with the ranchers was held. The first nuisance suit at Garrison against the defendant was filed October 10, 1963. Judge Frank Haswell assumed jurisdiction in the suit and a hearing was held on March 9, 1964.

From February till April 1964 improvements on the scrubbers in the mixing den were installed. On June 11, 1964, Judge Haswell restrained operations and required improvements both in the mixing den and in the roasting process to retain the emissions. On June 19, 1964, the defendant petitioned the court to reopen, stating that the improvements required by Judge Haswell had been completed except as to a cyclone in the kiln on which delivery could not be obtained.

In July 1964 the 8 foot by 150 foot stack was increased to 200 feet. However, by January 1966 the stack had deteriorated from the corrosive action of the gases so that it had a leak 135 feet from the ground. In July 1964, the defendant began using hydrated lime because it was more efficient as a scrubbing agent. In July of 1964 there was agreement between the parties in Judge Haswell's suit to allow the defendant to reopen giving the State Board of Health power to close the defendant's operation. In September of 1964 Judge Haswell was disqualified and Judge Green assumed jurisdiction. On November 6, 1964, the State Board of Health ordered the defendant's operation closed until compliance with Judge Haswell's June 11, 1964, order. On December 15, 1964, Judge Green allowed the plant to run under the direction of the State Board of Health. As stated previously, this action was filed in February 1965. On March 19, 1965, before Judge Green, the...