Fairview Farms, Inc. v. Reynolds Metals Company

• Decision Date: 09 July 1959
• Docket Number: Civ. No. 6902.
• Citation: 176 F. Supp. 178
• Parties: FAIRVIEW FARMS, INC., a corporation, Plaintiff, v. REYNOLDS METALS COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Oregon

176 F. Supp. 178

FAIRVIEW FARMS, INC., a corporation, Plaintiff, v. REYNOLDS METALS COMPANY, a corporation, Defendant.

Civ. No. 6902.

United States District Court D. Oregon.

July 9, 1959.

Robert F. Maguire and Alfred A. Hampson, Jr., Maguire, Shields, Morrison & Bailey, Portland, Or., for plaintiff.

Fredric A. Yerke, Jr., and Clifford N. Carlsen, Jr., King, Miller, Anderson, Nash & Yerke, Portland, Or., Gustav B. Margraf and W. Tobin Lennon, Richmond, Va., for defendant.

EAST, District Judge.

The plaintiff, Fairview Farms, Inc., an Oregon corporation (Fairview), instituted these proceedings against the defendant, Reynolds Metals Company, a Delaware corporation (Reynolds), on March 23, 1953, alleging the amount in controversy, exclusive of interest and costs, to be in excess of the sum of $3,000, and alleging a diversity of citizenship between the parties. Jurisdiction is acquired pursuant to Title 28 U.S.C.A. § 1332.

The trial of the cause was had by the Court without a jury, and continued for a total of 41 trial days. The transcript of the evidence and written briefs on behalf of the respective parties are voluminous, and the Court heard oral arguments by counsel on January 13 and 16, 1959.

Pertinent Parts of Pretrial Order, Preliminary Statement and Agreed Facts.

Fairview, during all pertinent times, has and does operate a dairy farm upon the hereinafter mentioned tracts of land northwest of Troutdale, Multnomah County, Oregon. Reynolds operates an aluminum reduction plant immediately east of said dairy farm. In this action Fairview contends that its dairy cows have been injured and the production of milk decreased as a result of consuming forage grown on said dairy farm upon which have settled fluorides emitted from said plant.

Fairview also contends that the fume control system installed by Reynolds is not sufficient to control the emanation of gases, liquids and solids containing flourides from said plant.

Fairview further contends that, unless the emanation of the said gases, liquids and solids containing fluorides is controlled, the trespass which is now occurring in respect of Fairview's farm will become permanent with a resulting depreciation in value, and in addition to alleged damages Fairview seeks a permanent injunction against Reynolds restraining the operation of said plant.

These contentions are denied by Reynolds.

Fairview leased from Charles E. Eckelman, one of the officers of Fairview, approximately 158 acres of real property situate northwest of Troutdale, Multnomah County, Oregon, and has continued to lease said real property from Charles E. Eckelman since December 31, 1935, and is leasing the same today.

In addition to this property, Fairview entered into a contract with Far West Realty Co., dated April 15, 1935, to buy 45 acres of real property. Fairview received a deed to said property August 31, 1943.

Fairview also leased 75 acres of real property from Portland Trust and Savings Bank, and purchased the same on July 15, 1943.

Charles E. Eckelman leased, by lease dated June 27, 1945, 175 acres of real property from Ernest G. Swigert, et ux., and W. G. Swigert, et ux. Fairview entered into a contract to purchase said real property from Ernest G. Swigert, et ux., and W. G. Swigert, et ux., on March 12, 1947. Fairview received a deed to said property May 26, 1953.

By contracts between Fairview and Eva B. Stone and Fairview and B. Josephine Fox, dated September 20, 1948, and October 7, 1948, respectively, Fairview agreed to purchase 42 acres of real property. Fairview received the deed to said property September 8, 1953.

On or about December 21, 1943, Fairview leased 60 acres of real property from the Port of Portland and has leased the same ever since. This property lies east of the 158 acres owned by Charles E. Eckelman.

Fairview, since at least September 23, 1946, has continuously used, and today is using all of said real properties for the operation of a dairy farm. On said farm Fairview produces milk and cream for human consumption, and, in addition, on a portion of said farm, Fairview processes milk and cream produced by it and purchased from others. The products thus processed are thereafter distributed by Fairview. In the operation of said dairy, said lands are principally used for pasture and the raising of forage crops for dairy cows, and Fairview has at some expense installed an irrigation system to irrigate said lands.

During 1941 and 1942, Aluminum Company of America constructed for Defense Plant Corporation the first stages of said aluminum reduction plant north of Troutdale, Multnomah County, Oregon.

Said aluminum reduction plant was operated by Aluminum Company of America under an agreement of lease with Defense Plant Corporation from May 20, 1942, to September 7, 1945, at which time operations ceased. During the period that said plant was being operated by Aluminum Company of America, no fume-collecting system was in operation.

On or about January 11, 1946, Fairview submitted to Aluminum Company of America a claim in writing for compensation for damages to dairy cows and loss of milk production which Fairview alleges were due to the operation of said aluminum reduction plant. Thereafter, Fairview executed a release agreement and received the sum of $40,061.07. On or about October 3, 1946, Fairview executed the final release agreement and received the sum of $3,500.

Said aluminum reduction plant was not operated during the period commencing September 7, 1945, and ending September 23, 1946.

In 1946, the United States of America, through the Reconstruction Finance Corporation, leased said plant to Reynolds, who commenced operating the same on or about September 23, 1946. Since September 23, 1946, Reynolds, first as lessee and then as owner, has been in possession of and, except for the short periods of shutdown due to flood conditions and labor difficulties, has continuously been operating said aluminum reduction plant for the production of aluminum and no other metal.

In the course of the production of aluminum by Reynolds at said aluminum reduction plant, the following raw materials, among others, were and are being used:

1. Petroleum coke

2. Pitch

3. Alumina (aluminum oxide)

4. Cryolite (sodium aluminum fluoride)

5. Aluminum fluoride

6. Calcium fluoride (fluorspar)

7. Soda ash.

Said raw materials are combined in the pots into which electric energy or current is introduced, and aluminum in liquid form is electro-deposited in the cavity at the base of each pot.

In the course of operating said aluminum plant, those fluoride compounds not absorbed in the pot lining or not captured by the fume collection system emanate from said plant in the form of fumes, gases, liquids and particulates.

Since February 8, 1947, and until the summer of 1951, Reynolds has had in operation in its plant 512, and since 1951, 536 pots or cells, each approximately 18' in length, 6' in width and 2' deep and contains in the normal course of operation 7,200 pounds of cryolite, aluminum fluoride, calcium fluoride or fluorspar in molten condition. The materials added to all of the pots each day to retain the necessary quantity for electrolytic purposes therein contain an average of five tons of fluorine. This replacement is necessary because of the emanation in the form of gases and particulates from the pot of fluorine containing compounds and absorption of said compounds in the carbon lining of the pots.

As originally constructed, and until modified as hereinafter set forth, each of the potline buildings at said plant had long openings or vents along the roof and openings along the base of each side thereof. When the pots are in operation, air enters the potline building through the openings at the base of the sides of the building and through any other openings or doors or windows if open. By reason of the temperature of the pots in said buildings, the air entering the buildings combines with the gases, fumes and particulates being evolved from the pots, and, as originally constructed and until modified as hereinafter stated, the combination was carried upward and out through said long openings or vents in the roofs of the buildings or through any open windows or doors.

Before Reynolds commenced operations at said plant on September 23, 1946, Reynolds had installed in the vents along the roofs of the potline buildings water pipes and spray heads for the purpose of precipitating a portion of the gases, fumes and particulates, including fluorides, passing out of said vents. The cost of installing such system was approximately $271,846, and said amount was paid by the United States.

On or about June 1, 1949, Reynolds commenced the construction and installation of a different gas, fume and particulate collecting system at said plant. The installation of this system was completed on or about November 3, 1950. This system consists of hoods for all pots in said plant, the connection thereof to an induced-draft system for the removal of gases, fumes and particulates from said pots, dust collectors and wash towers for the capture of the gases, fumes and particulates passing into the induced-draft system before the release thereof into the air, and roof scrubbers for the capture of gases, fumes and particulates not drawn into the induced-draft system and for washing of the same. Said dust collectors are cyclones manufactured by American Blower Corporation, Design 13, No. 28, Type D Collectors, Series 311, arrangement 12. The cost of installing such system was approximately $2,139,185. Said devices did not and have not prevented all gases, fumes, liquids and particulates from escaping from said plant, some of which have settled and do settle at various times upon some of Fairview's fields. After the addition of the pots in 1951, Reynolds installed hoods and ducts for each of the additional pots, but did not install additional cyclones, wash towers or roof scrubbers.

The...