G. L. Webster Co. Inc v. Steelman

• Decision Date: 20 February 1939
• Citation: 1 S.E.2d 305
• Court: Virginia Supreme Court
• Parties: G. L. WEBSTER CO., Inc. v. STEELMAN.

1 S.E.2d 305

G. L. WEBSTER CO., Inc.

v.STEELMAN.

Supreme Court of Appeals of Virginia.

Feb. 20, 1939.

Error to Circuit Court, Northampton County; John E. Nottingham, Judge.

Action by notice of motion for judgment by Emory J. Steelman against the G. L. Webster Company, Inc., for damages to seafood and to enjoyment and use of land by pollution of water. To review a judgment on a verdict for plaintiff, defendants bring error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, JJ.

Otto Lowe, of Cape Charles, Mears & Mears, of Eastville, and J. Brooks Mapp and William King Mapp, both of Keller, for plaintiff in error.

James E. Heath, of Norfolk, and Thomas H. Nottingham and Quinton G. Nottingham, both of Eastville, for defendant in error.

SPRATLEY, Justice.

This is an action instituted in December, 1937, by Emory J. Steelman against the G. L. Webster Company, Inc., to recover damages to seafood, both above and below low-water mark in tidal waters, by reason of pollution of said waters, and damages to the enjoyment and use of high land, situated on these waters, by reason of noxious odors, stench, and filth created by this pollution.

There was a verdict and judgment in favor of the plaintiff solely for damage to his real property by the odors, to which the defendant obtained a writ of error. There are no assignments of cross-error.

The parties hereto will be designated as plaintiff and defendant, in accordance with the respective positions they occupied in the trial court.

Although many questions of law and fact were raised in the trial court, the issues have been greatly narrowed here because of the absence of assignments of cross-error. The trial occupied six days, and the evidence fills 450 printed pages. Much of this evidence relates to questions with which we are not now concerned. A statement of so much as is essential to a clear understanding of the most important and pertinent facts is, in itself, fairly extensive.

Accordingly, confining ourselves to that portion of the evidence which has a bearing on the issues before us, a fair statement from the record discloses the following case:

The defendant, in 1920, obtained a charter in Virginia to establish and operate in this State a canning factory. It purchased that year a tract of land at Cheriton, Virginia, a small unincorporated community of about 700 persons. This village is located in a wholly agricultural community. It is in a flat terrain, located between Chesapeake bay and the Atlantic ocean, on the lower tip of the peninsula, consisting of the counties of Northampton and Accomack. ' The land of the plaintiff is no higher than that of the surrrounding land, and does not lie in any natural watershed. It has to be drained entirely by artificial means, by ditches running to small drains and branches leading to one of the many creeks entering into a larger creek or bay.

The plant of the defendant was built on the eastern side of the right-of-way of the Pennsylvania Railroad Company, which runs approximately through the center of the county.

It is necessary for a plant of this character to have an ample supply of water for cleansing and canning purposes, and also an outlet for its refuse water and waste material. Here the defendant, in the absence of sufficient water from natural sources, had to drill wells for its supply. It also had to provide for its drainage.

In 1920, when the canning company purchased its land, there was a small, open ditch on its western side, running along the eastern side of the right-of-way of the railroad company, northwardly, for 1400 feet. It then passed at right angles under the railroad right-of-way, and continued in a more or less westerly direction to the head of what is known as Hanby's branch, an enlarged drain, and through this branch to the waters of Eyre Hall Creek. The branch widens as it progresses westward-ly, the course of the water passing in a channel approximately in the center of the branch. As Eyre Hall Creek, upon which is located the real property of the plaintiff, is reached, there are marshes, shoals, and flats widening out to a considerable extent. From the mouth of Eyre Hall Creek it is approximately one mile to the navigable part thereof, which makes the navigable channel begin within a short distance of the property of the plaintiff.

The distance from the canning plant to the property of the plaintiff, hereinafter mentioned, is 2.69 miles. The shore line of Northampton county, both on the ocean and bay side, is indented by numerous creeks, which have branches extending almost to the center of the county. From the plant at Cheriton, it was easier and shorter to direct the drain to the Chesapeake bay side than to the ocean side, the plant being nearer to. Hanby's branch, or the ditch leading thereto, than to any other drainage ditch.

A number of other branches and arms of branches, or small creeks, drain into Eyre Hall Creek. Eyre Hall Creek itself empties into Cherrystone. Creek, which, in turn, empties into the open waters of Chesapeake bay.

The defendant's operations began in a small way in. 1920, and successively increased until in 1930, and subsequent there-to, it had become one of the largest, if not the largest, canning plants in the United States. It put up 18, 000 cases of canned beans in 1920; 135, 000 cases in 1921, and reached a peak of approximately 1, 000, 000 cases of peas, beans, other vegetables and vegetable juices in 1939. Since 1930, the output has been approximately the same. Naturally the enlargement in the size of the plant and the scope of its operations were commensurate with the increase of its output. From the small tract of land and small plant with which it began in 1920, it has expanded until it now owns, for its operating purposes, at Cheriton, 60 acres of real estate, on which the buildings alone cover approximately 20 acres of floor space. It owns two or three farms in the county, and leases and operates 60 more, the 60 farms containing over 6, 000 acres of cleared land used in the cultivation of vegetables for canning purposes. In addition, it buys a large amount of vegetables from other farmers throughout the county. The approximate net weight of the vegetables annually canned since 1930, exclusive of vines and hulls, has been about 10, 000 tons, the equivalent of 166 freight car loads of about 60 tons each.

The first canned product was lima beans, but to this have been added peas, carrots, some pork and beans, a few beets, snap beans, sweet potatoes, spinach, tomato soup and tomato juice. The manufacture of tomato soup was abandoned in 1936, and the canning of tomato juice was taken on in its stead. The largest product of the plant is canned tomato juice, which amounted to 500, 000 cases in 1936, about half of the total output of the plant.

The season for canning the various crops is naturally dependent upon the ripening of the vegetables. The plant opens with the canning of spinach in April, peas in May, tomato juice about July 10th, and beets about the same time. The operation is then continuous until the last of October or the middle of November. During the months between November and April, little canning it done, that time being given to the preparation for next year's crops and operation.

The employees of the plant in 1920 were few; but the number gradually increased up to the year 1930, since which time the average number of year-round employees has been from four to five hundred, and during the busy packing seasons, from one thousand to one thousand, two hundred. The plant expended on pay rolls, rents and farm produce, during the year 1937, a sum in excess of $461,000. These detailed figures are given to show the growth, extent and size of its operations.

In preparation for the canning process, the vegetables must first be dusted and cleaned. The vines or pods are separated from the vegetables. After the larger particles of dust are removed, a heavy blast of air is cast upon the vegetables to take off all chaff or like material. They are then sprayed and washed with water. The used water then passes through a series of screens designed to further remove therefrom all particles of solid matter, the size of tomato seeds or larger, before it makes its final passage through the drainage ditch into Hanby's Branch and to Eyre Hall Creek. A standard type of screening approved by the industry is provided. The water used is drawn by pumps from wells 300 feet deep in the earth. The amount used varies according to the operation of the plant. About 500 gallons per minute are used during the peak of the canning season. All of this water is added to the ordinary and natural flow of the ditch and branches leading to the creek. Such foreign matter as is caught by the screens is removed and carried off to be used for other purposes. No human sewage goes into the drains.

Notwithstanding the efforts to keep solid vegetable matter from entering the ditches and drains, it is apparent that a certain amount passes into them, together with a sediment of organic material, or "suspended matter" from the vegetables. This sediment or "suspended matter, " upon being released from the water, settles on the sides and bottom of the ditches and drains. By reason of this, and other causes creating obstructions in the drains, the defendant found it necessary to clean them out at least once, and sometimes twice annually, a work requiring several weeks time. To secure a free and uninterrupted flow in a more direct course, the ditches and drains were, from time to time, altered. Curves and angles were reduced, or cut off, and the channels straightened and deepened. The ditches and drains are shallow as a rule, but their depths vary, and at places in the channel, deep holes may be found. For the larger part of their courses they are narrow, being onlytwo or three feet wide, with the width enlarging as they proceed toward Eyre Hall Creek.

The plaintiff, E....