Ericksen v. John Morrell & Co.

• Decision Date: 07 April 1944
• Docket Number: 8530.
• Citation: 14 N.W.2d 88,70 S.D. 38
• Parties: ERICKSEN v. JOHN MORRELL & CO. et al.
• Court: South Dakota Supreme Court

14 N.W.2d 88

70 S.D. 38

ERICKSEN v. JOHN MORRELL & CO. et al.

No. 8530.

Supreme Court of South Dakota

April 7, 1944

Rehearing Denied Aug. 7, 1944.

Parliman & Parliman, Danforth & Danforth, and Raymond E. Dana all of Sioux Falls, for appellant.

Roy D. Burns and Claude A. Hamilton, both of Sioux Falls, for respondent City of Sioux Falls.

Boyce Warren & Fairbank and John S. Murphy, all of Sioux Falls for respondents John Morrell & Co., Sioux Falls Rendering Co., and Sioux Falls Serum Co.

VAN BUREN PERRY, Circuit Judge.

This action is brought by the plaintiff as a riparian owner against the City of Sioux Falls, John Morrell & Company, the Sioux Falls Rendering Company and the Sioux Falls Serum Company to recover alleged damages for the pollution of the waters of the Big Sioux River, and for an injunction restraining further pollution. Judgment for the defendants below.

The City of Sioux Falls is located on the Big Sioux River. The City has for many years had a sewer system and sewage disposal plant the effluent of which is emptied into the river. John Morrell & Company, Sioux Falls Rendering Company and Sioux Falls Serum Company are industrial concerns located in said City and such industrial sewage as they produce is emptied into the City sewers. In the winter of 1938-1939 the City engaged a firm of sanitary engineers to survey and report on improvements and betterments in the disposal plant. These repairs were commenced in November 1939 and were completed in August 1940. While these repairs and additions were being made the disposal plant did not operate at full efficiency and the effluent discharged from the plant into the river caused a certain amount of pollution in the river. Since August 1940 the plant has operated with reasonable efficiency and has kept the river reasonably free from pollution. Such pollution as existed between November 1939 and August 1940 was temporary and not permanent.

On June 22 1939, the plaintiff, who then and at all times since has resided in the City of Sioux Falls, purchased a farm on the banks of the river for the sum of $12,800. The farm has at all times been operated by a tenant. In December 1939, a month following the commencement of repairs and pollution, the plaintiff commenced this action for damages and injunction against further pollution. The original demand for damages was for $15,000 but by amendment this was reduced to $11,325, itemized to include...