G. L. Webster Co. v. Steelman

• Decision Date: 20 February 1939
• Docket Number: Record No. 2002.
• Citation: 172 Va. 342
• Court: Virginia Supreme Court
• Parties: G. L. WEBSTER COMPANY, INC. v. EMORY J. STEELMAN.

Page 342

172 Va. 342

G. L. WEBSTER COMPANY, INC. v. EMORY J. STEELMAN.

Record No. 2002.

Supreme Court of Virginia, Richmond.

February 20, 1939.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Browning and Spratley, JJ.

1. NAVIGABLE WATERS — Pollution — Appeal and Error — Conclusiveness of Verdict as to Conflicts in Evidence — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. There was some conflict of evidence as to whether the waste and refuse material from the canning plant was the cause of the offensive odors of which plaintiff complained, and also as to the time that plaintiff first suffered the injury, but the jury found a verdict for plaintiff.

Held: That the doubt caused by the conflict had been resolved by the verdict of the jury in favor of plaintiff's claims.

2. INSTRUCTIONS — Exceptions and Objections — Failure to State Grounds of Objection. — Where exceptions are filed to the refusal to give instructions, but no grounds of objection are assigned, such exceptions cannot be considered by the Supreme Court of Appeals, under Rule XXII of that court.

3. NAVIGABLE WATERS — Pollution — Appeal and Error — Failure to Assign Cross-Error — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. Plaintiff also sought to recover damages for the pollution of oysters and oyster beds below low-water mark on his property, but to this part of the notice of motion the trial court sustained a demurrer. Plaintiff made no assignment of cross-error to the action of the trial court in sustaining the demurrer.

Held: That the question of damages to the seafood below low-water mark, in the absence of assignments of cross-error, need not be considered by the Supreme Court of Appeals.

4. NAVIGABLE WATERS — Pollution — Appeal and Error — Failure to Assign Cross-Error — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. Plaintiff also sought to recover damages to seafood on his premises above low-water mark, but the verdict of the jury denied such recovery and no cross-assignment of error was made by plaintiff.

Held: That in the absence of assignments of cross-error, the question of damages to the seafood of plaintiff above low-water mark need not be considered by the Supreme Court of Appeals.

5. NAVIGABLE WATERS — Pollution — Private Corporation — Canning Company without Public Rights Superior to Rights of Individual — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. Defendant contended that, in the absence of negligence, it was not liable for damage occasioned to the lands of plaintiff above low-water mark, because it had the right to drain its refuse and waste into tidal waters, and that in doing so it was exercising a public right, jus publicum, rather than a private right, jus privatum, and any loss occasioned thereby was dammum absque injuria.

Held: That defendant, as a private corporation engaged in business for private profit, had no public rights nor quasi-public rights superior to the rights of an individual; that its operations were in no wise connected with a public interest; and that the manner and method in which it disposed of its waste and refuse water was a mere incident to the operation of its plant in a private capacity.

6. WORDS AND PHRASES — Jus Publicum — Jus Privatum. — Jus publicum is defined as meaning public law or public right in contradistinction to jus privatum, signifying private ownership or the right and title of a private owner.

7. WORDS AND PHRASES — Jus Publicum. — Jus publicum implies a right in a sovereign or public capacity to be exercised for the interest or benefit of the State or the public, as distinguished from the exercise, in a proprietary capacity, of a right of the sovereign, or of a right possessed by an individual in common with the public. It is, therefore, usually found employed in connection with some right or privilege associated with the sovereign, or in connection with a delegation of right or authority from the sovereign.

8. NUISANCES — What Constitutes — Offensive Odors. — Odors which are offensive and disagreeable in such a manner as to render life uncomfortable and damage property rights constitute a nuisance.

9. NUISANCES — Negligence — Necessity for Alleging and Proving Negligence. — To establish a nuisance, it is not necessary to allege or prove negligence when the acts complained of result from a nuisance committed by another in a private capacity.

10. NUISANCES — Legalizing Nuisances — Unreasonable Interference with or Disregard of Rights of Others. — Not even legislative authority to do specific acts which are essential in the exercise of the powers expressly conferred, and in the accomplishment of the purposes for which it is granted, will authorize other works or acts to be maintained or operated so as to interfere unreasonably with and disturb the rights of others in their property, nor will grants of privileges or powers to corporate bodies, such as public service corporations, confer on them a license, in the exercise of their private rights, to disregard the rights of others without liability for such invasion.

11. NAVIGABLE WATERS — Pollution — Drainage of Water Collected from Artificial Sources in Large Volumes — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. The water used to clean and wash the vegetables canned by defendant, which caused the pollution complained of, was drawn from wells and all of it was added to the ordinary and natural flow of a ditch and branches leading from defendant's factory to the creek on which plaintiff's property was located.

Held: That even if defendant had the right to natural drainage for the surface water from its land into the drainage system, it did not have the right to collect large volumes of water from artificial sources and then mingle it with matter likely to cause pollution, and cast it upon another's land.

12. NAVIGABLE WATERS — Pollution — Notice of Motion for Judgment — Sufficiency to Warrant Recovery for Odors from Seafood for Destruction of Which No Recovery Was Allowed — Case at Bar. — In the instant case, an action against a canning company to recover damages to plaintiff's land by reason of pollution of tidal waters, the notice of motion for judgment alleged that plaintiff's lands were made valueless from stench and filth created by the pollution of the waters of an adjoining creek, and that this pollution also killed seafood, which lined plaintiff's shore upon the ebb and flow of the tide. Plaintiff also sought to recover for damage to the seafood, but the jury's verdict allowed no recovery therefor, and defendant assigned as error the giving of an instruction that defendant was liable if the jury believed plaintiff's property had been injured in consequence of defendant's discharge of refuse and waste from its factory into the waters in question, on the ground that the only damage to the enjoyment of plaintiff's home alleged in the notice of motion resulted from stench and filth created by seafood, wrongfully killed by defendant, while under the jury's verdict no seafood was wrongfully killed or damaged by defendant.

Held: That the assignment of error was without merit, since the language of the notice of motion was sufficient to charge defendant with responsibility for the creation of the nuisance from which the offensive odors arose.

13. NAVIGABLE WATERS — Pollution — Instructions — Limitation of Actions — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. Plaintiff purchased the land in 1933 and alleged that no odor was noticeable until 1936. The action was instituted in 1937. The court instructed the jury that although defendant's plant and ditches were permanent in character, plaintiff had no cause of action until he should suffer an injury therefrom; that the statute of limitations did not apply until such time, and was not a bar to recovery unless the injuries to his property were actually suffered five years prior to the date of the institution of the action. Defendant objected to the instruction on the ground that the jury would be misled into believing that the statute did not apply unless plaintiff had owned the property for more than five years prior to the institution of the suit, but another instruction told the jury that "the burden is upon the defendant, insofar as it relies upon the statute of limitations, to prove by a preponderance of the evidence that the injuries to the property now owned by plaintiff did occur more than five years prior to the 23rd day of December, 1937."

Held: That defendant's objection was answered by the second instruction.

14. NAVIGABLE WATERS — Pollution — Instructions — Limitation of Actions — Case at Bar. — The instant case was an action against a canning company for damages to plaintiff's land because of offensive odors caused by the pollution of tidal waters which were cast upon the land. Plaintiff purchased the land in 1933 and alleged that no odor was noticeable until 1936. The action was instituted in 1937. Defendant contended that the jury should have been told that if they believed defendant's structures and ditches, constructed...