Exley v. Southern Cotton Oil Co.

• Decision Date: 14 February 1907
• Citation: 151 F. 101
• Parties: EXLEY v. SOUTHERN COTTON OIL CO.
• Court: U.S. District Court — Southern District of Georgia

151 F. 101

EXLEY v. SOUTHERN COTTON OIL CO.

United States Circuit Court, S.D. Georgia, Eastern Division.

February 14, 1907

R. R Richards and Cann, Barrow & McIntire, for plaintiff.

Garrard & Meldrim, for defendant.

SPEER District Judge.

The plaintiff's intestate brought this action against the defendant in the superior court of Chatham county, claiming damages in the amount of $32,045. Subsequently the proceeding was removed to this court by the defendant, who is a nonresident. The plaintiff alleges that he is the owner of a tract of land, comprising 65 acres, in said county; which land has been continuously used by him for farming purposes. In the body of said land lies an area of low land, comprising about six acres, through which there runs a ditch for the purposes of drainage. This ditch connects with one running from the land of the defendant, and extends through the petitioner's land in a southeasterly direction to what is known as 'Stiles Canal,' which ultimately finds its outlet into the Savannah river. The plaintiff alleges that the six acres in question are the most fertile and valuable of his lands, that for over 20 years they have been cultivated in truck gardening, and that their productivity has now been destroyed, and the plaintiff greatly damaged, in manner alleged, by reason of the defendant running unclean water from its mill and plant into this ditch. A stream of polluted water is discharged through this medium upon plaintiff's land, and this water, it is alleged, is foul, hot, laden with chemicals, eats up the soil in the ditch, injures the adjacent land, and kills vegetation. The refuse thus discharged emits fumes and odors and unhealthy smells, making the atmosphere in the vicinity of said ditch and lowlands, for a considerable distance corrupted, unwholesome, offensive, nauseating, and unhealthy rendering the acts of the defendant a dangerous and continuing nuisance and a constantly recurring trespass on petitioner's land. It is also stated that the defendant company has connected privies with said ditch, through which fecal excrement from several hundred employes is discharged through and upon plaintiff's land. The plaintiff claims particular damages to his crops and other property, and alleges that although the attention of the company has been called thereto, it has continued to disregard his rights.

To this petition, the defendant has demurred both generally and specially, on the ground that the plaintiff has not made such a case as entitles him to any action at law as to the matters alleged, and has demurred on divers special grounds. The form of the petition is general and based upon the liberal system of pleading which obtains in this state. It is argued that, in order to avoid the effect of these demurrers, the form of action must be regarded as trespass quare clausum fregit; that such action lies only where the defendant 'broke and entered the plaintiff's close,' and as it contains no such allegation, the petition does not constitute such form. It is further insisted that there should be an averment that the acts complained of were committed with 'force and arms,' as essential to the gravamen of the action. The general demurrer also raises the question that the company has a right to the reasonable use and enjoyment of its property, and there is no averment that it has done more than exercise that right, and that, if its conduct causes damages to adjacent land, it is damnum absque injuria. It is contended that the right to discharge surface water cannot be interfered with; that the defendant has the right to increase its flow, and is not liable for resulting injuries unless caused by its negligence, unskillfulness, or wanton abuse; and that it is necessary for the plaintiff to show, not only that he has sustained damage, but that the defendant has caused the same by going beyond what is necessary to enable him to have the natural use of his own land. As this is not alleged in the petition, it is insisted that the general demurrer must be sustained.

The facts, as set forth, clearly allege the maintenance of a private nuisance. This under the Code of our state gives a right of action to the person injured. Civ. Code 1895, Sec. 3858. 'The right of enjoyment of private property being an absolute right of every citizen,' section 3874 provides: 'Every act of another which unlawfully interferes with such enjoyment is a cause of action. ' A nuisance is defined by Blackstone as 'anything that worketh hurt, inconvenience, or damage to another. ' This ancient definition has been approved by the most recent decisions, and has been embodied in the Code of Georgia. When a nuisance, either public or private, is proved, it is no defense to show that reasonable care was taken to prevent it, as that the business from which the nuisance arises is conducted according to the most approved methods; nor is it excused by the fact that it arises from a business or erection of itself lawful, or that it is necessary to the operation of a business. 21 Enc.Law, pp. 688, 689; Chicago, etc., R.R. Co. v. First M. E. Church, 102 F. 85, 42 C.C.A. 178, 50 L.R.A. 488.

It is a primary rule that every person who constructs a drain or cesspool upon his own premises, and uses it for his own purposes, is bound to keep the filth collected there from becoming a nuisance to his neighbors. The maxim 'sic utere tuo ut alienum non laedas' is generally applicable. If filth on a man's premises escapes, 'either by percolating through the earth or otherwise, upon the premises of another, he is answerable for all the damages that ensue therefrom. ' Wood on Nuisances, Secs. 118, 120. The draining of this ditch through the plaintiff's premises, although an easement, arising from its former use by plaintiff's brother-- defendant's predecessor in title-- solely for drainage purposes in agriculture in connection with one upon his own land, must be reasonably exercised for such purposes, so as not to produce unnecessary injury, annoyance, or nuisance to the servient tenement. A person exercising such right must not create a nuisance, and if his use be unreasonable, he is liable for any consequent damages. Wood on Nuisances, Sec. 118. 'The pollution of water, or the maintenance of dams, drains, or ditches, in such a way as to emit disagreeable or unwholesome odors, is not only an actionable, but an indictable nuisance. ' Id. Sec. 698. If waste or filthy matter be discharged on another's lands, the person causing the injury is chargeable with the maintenance of a nuisance, and the question of negligence is immaterial in determining whether the cause be actionable. Humphries v. Cousins, 2 C.P.D. 239; Snider Preserve Co. v. Beemon (Ky.) 60 S.W. 849.

It is difficult to see how the existence of a nuisance could be more strongly alleged than it is in this petition. The defendant company, by the maintenance of its plant and outhouses on its premises, required a drain for the removal of polluted chemical and foul excretory waste matter. Having a ditch upon its premises, it has utilized the connecting ditch running through the plaintiff's premises, although, as stated, it might, without inconvenience discharge this water and excrement through its own premises into the Savannah river. Under the property rules of this state, embodied in the Civil Code, these allegations constitute a clearly actionable case; nor is it necessary to specifically allege a breaking and entering of the plaintiff's close by force of arms.

The contention of defendant's counsel that the use of this ditch is a right which cannot be interfered with, as it is a reasonable use merely for the discharge of surface water avoids the issue. While the company has a common law, and doubtless statutory, right, freely to discharge surface water from its own premises without regard to the rights of adjacent landowners, that is not the case at bar. Surface water, in legal contemplation, is that which arises from the sources of nature, such as streams, springs, and the like, and which comes from the ordinary tillage or use of the soil. Impurities, which are naturally added to such water, in the processes of husbandry, or in its reasonable domestic use, while being discharged from the owner's premises, would not operate to make a trespass or nuisance against an adjoining owner. But where it is alleged that this corporation persistently discharges the foul, polluted and...