East Tennessee Natural Gas Co. v. Peltz

• Decision Date: 18 March 1954
• Citation: 38 Tenn.App. 100,270 S.W.2d 591
• Parties: EAST TENNESSEE NATURAL GAS CO., et al. v. Peter PELTZ, et al.
• Court: Tennessee Court of Appeals

Page 591

270 S.W.2d 591

38 Tenn.App. 100

EAST TENNESSEE NATURAL GAS CO., et al. v. Peter PELTZ, et al.

Court of Appeals of Tennessee, Eastern Section.

March 18, 1954 Certiorari Denied by Supreme Court July 23, 1954.

C. W. Key, E. Bruce Foster, Knoxville, Andrew Ewing, Nashville, J. H. McCartt, Wartburg, for plaintiffs in error.

Jennings, O'Neil & Jarvis, Knoxville, S. H. Justice, Wartburg, for defendants in error.

HOWARD, Judge.

Referring to the parties as they appeared below, the plaintiffs, Peter Peltz and wife, Bridget Peltz, filed this action against the defendants, East Tennessee Natural Gas Company, hereinafter referred to as Gas Company, and John Oman III and Stirton Oman, co-partners doing business as the Oman Construction Company, for damages for the alleged destruction of a concrete dam caused by the blasting operations conducted by the defenant, Oman Construction Company, upon the right-of-way of the Gas Company, while laying a 22 inch natural gas transmission line referred to as the Greenbrier-Oak Ridge line, and for the casting of debris, rocks, etc., upon the property of the plaintiffs adjacent to the right-of-way.

At the time the matters herein arose the Gas Company, a corporation organized and existing under the laws of the State of Tennessee with its principal office at Knoxville, was engaged in supplying and the distribution of natural gas throughout East Tennessee. The Oman Construction Company maintained its office at Nashville, Tennessee, and at the time was under a contract with the Gas Company to construct the gas line in question.

Plaintiffs are residents of Morgan County, Tennessee, where they have lived for more than 33 years, having moved into said County in 1919 from the State of Pennsylvania, where Peltz had worked previously for 8 years as a coal miner. They are of Polish descent, self educated, frugal and ambitious, and by their efforts have acquired ownership of several hundred acres of farm and timber lands located in the 7th Civil District of Morgan County, near the Village of Deer Lodge about 14 miles west of Wartburg, the County seat. Plaintiffs acquired their land by the purchase of 8 separate tracts purchased at different times, but only 4 are mentioned in the record. They are (1) the 100 acre tract on which the family residence was located; (2) a 50 acre tract about 3/4 mile away upon which the dam involved herein was erected; (3) a 40 acre tract and (4) a 50 acre tract adjacent to each other, and abutting the 50 acre 'dam tract' on the northeast. The tracts 2, 3 and 4 were unfenced, uncultivated and had no improvements on them except the dam, which was erected by the plaintiffs in 1948, 1949. The Gas Company's pipe line right-of-way passed through tracts 3 and 4, and at its nearest point was about 1500 feet from the dam and approximately 700 feet from the water line of the lake.

In 1945, before Peltz decided to erect the dam, he contracted M. P. Gowder, State Engineer with the Agriculture Extension Service at the University of Tennessee Farm in Knoxville, whose duties were to assist farmers in the solution of their problems. At Peltz's request Gowder visited the dam site, where, assisted by Peltz and Charlie Edwards, the then County Agent of Morgan County, he made a survey and preliminary estimate of the cost. Later, Gowder prepared plans and specifications for the dam. The plans, completed in 1946, called for a masonry and concrete dam with expansion and contraction joints at 4 points. These joints were between the spillways and wingwalls and the spillways and the center pier. The plans specified wingwalls 24 inches thick with footings at the base of the dam 16 inches thick, in solid rock to prevent seepage. The specifications for the concrete called for a mixture or formula of 1-2-4, meaning 1 bag of cement, 2 bags of sand and 4 bags of aggregate or gravel, reinforced by steel of 5/8 inch or larger. After studying the plans Peltz abandoned the idea of using masonry and decided to build the dam of solid concrete.

Before starting construction of the dam Peltz, assisted by the members of his family, his neighbors and hired labor, removed all the trees and cleared the basin for the lake, and with a bulldozer removed the surface dirt and everything down to solid rock on which the dam was to be constructed. Three branches assured an ample supply of water, and it was admitted that the site selected was an ideal location for the dam. Plaintiffs started construction of the dam in February, 1948 and completed it in May, 1949, the basin filling completely by the following June.

The dam was described as having an upstream wall about 206 feet in length and a downstream wall about 156 feet in length. At the north end of the structure there were two parallel walls each 26 inches in thickness, and these walls extended south to a spillway section, at which point the walls were approximately 20 feet high. The spillway section consisted of two solid monolithic blocks of concrete, each 10 feet wide and 18 feet high. They were 10 feet in thickness at the base and tapered to about 4 feet in thickness at the top. One of these was on each side of a center pier which was approximately 4 feet wide. At the south end of the south spillway section two parallel walls of concrete, each 26 inches in thickness, extended for a distance of 81 feet to the south bank of the ravine. The space between these two walls was supposed to have been filled in with crushed stone, but had been only partially filled at the time of the failure. That part of the dam which failed consisted of 25 1/2 feet of the 81 foot south section of the dam, and on the night of October 31, 1949, this portion washed out.

On July 11, 1949, the plaintiffs executed a deed granting the Gas Company a 50 foot right-of-way across tracts 3 and 4, for the purpose of extending the Greenbrier-Oak Ridge gas line then under construction, and subsequently, in preparation for the laying of the gas line, the defendant, Oman Construction Company, dug a trench approximately 40 inches wide down to the rock along the center of the Gas Company's 50 foot right-of-way at a point about 1500 feet east of plaintiffs' dam where it crossed one of the branches that flowed into the lake. By the use of wagon drills with bits 2 1/4 inches in diameter, two lines of holes were then drilled into the exposed rock in the trench. These holes were staggered and were about 3 feet apart and ranged in depth from 6 to 8 feet, and the lines extended for a considerable distance beyond the branch on each side. The holes were then packed with 40% dynamite, using 5 or 6 sticks to the foot, for a distance estimated at from 700 to 800 feet, and by the use of a battery the complete charge, ranging from one and one-half to two tons, was set off in one blasting on the morning of September 21st.

Plaintiffs' declaration was in 4 Counts, the first Count alleging in substance that the plaintiffs had constructed a concrete dam at great expense, that the defendants used excessive charges of dynamite in their blasting operations, which were negligently done, and that the defendants failed to exercise the necessary care to protect plaintiffs' property. The second Count alleged that the defendants did not confine their operations and blasting activities to the 50 foot right-of-way, but unnecessarily encroached upon plaintiffs' property. The third Count alleged that the defendants, in causing the damage to the dam, committed a trespass upon plaintiffs' property, and the fourth Court charged that the defendants, in using high explosives, were insurers for damages resulting therefrom.

Defendants interposed pleas of not guilty and filed numerous special pleas in which it was denied that they trespassed upon plaintiffs' property; denied that plaintiffs' property was damaged as alleged; denied that any damage to plaintiffs' property resulted proximately from the blasting, and denied that plaintiffs had either legal title to the property or were in actual possession. They averred that plaintiffs' dam disintegrated because of faulty, insufficient, improper and unsafe construction, that because of the faulty design, workmanship and inferior materials the dam was incapable of withstanding the atmospheric changes occurring at the time; that plaintiffs were guilty of proximate contributory negligence and had failed to exercise due care and caution in reducing and minimizing their losses and damages.

For further plea the defendants averred that on July 11, 1949, the plaintiffs for valuable consideration executed a deed granting the Gas Company a perpetual right-of-way and easement upon and through their property for the purpose of laying the gas main, and pleaded accord and satisfaction as a complete bar to plaintiffs' suit.

To the foregoing plea the plaintiffs filed a replication, alleging in substance that said right-of-way deed dated July 11, 1949, was void and of no effect, because (1) the consideration paid therefor was inadequate, and (2) its execution was procured by fraud and misrepresentations, in that at the time and prior thereto, the agent of the Gas Company assured plaintiffs that no part of their property outside the fifty foot right-of-way would be damaged.

Upon issues being joined, the case proceeded to trial. There were two trials in in which the defendants made separate motions for peremptory instructions at the conclusion of all the evidence introduced. These motions were based on no material evidence to support a verdict and were overruled. The first trial resulted in a jury verdict for the plaintiff for $19,000, followed by a motion for a new trial and for a directed verdict. The trial judge granted the motion for a new trial on an error committed in the charge, but refused to direct a verdict, and the defendants preserved and have filed a Wayside Bill of Exceptions. The second trial resulted in a jury verdict for the plaintiffs for $28,600, $28,000 on...