Hardin v. Olympic Portland Cement Co.

• Decision Date: 15 January 1916
• Docket Number: 12918.
• Citation: 89 Wash. 320,154 P. 450
• Parties: HARDIN et al. v. OLYMPIC PORTLAND DEMENT CO., Limited.
• Court: Washington Supreme Court

154 P. 450

89 Wash. 320

HARDIN et al. v. OLYMPIC PORTLAND DEMENT CO., Limited.

No. 12918.

Supreme Court of Washington

January 15, 1916

Department 2. Appeal from Superior Court, Whatcom County; William H Pemberton, Judge.

Action by Ed. E. Hardin, and Ed. E. Hardin, executor of the will and estate of Victoria Hardin, deceased, against the Olympic Portland Cement Company, Limited. Judgment for plaintiffs and defendant appeals. Affirmed.

Hadley, Hadley & Abbott, of Bellingham, for appellant.

Hurlbut & Neal, of Bellingham, and Romaine & Abrams, of Bellingham for respondents.

Ed. E Hardin, in pro. per.

HOLCOMB J.

Respondents own 15 acres of land near Bellingham, Wash., and the appellant owns a tract of land lying immediately southerly of, and contiguous to, the lands of respondents. Prior to May 1, 1913, appellant constructed upon its land a large plant for the manufacture of Portland cement, and on or about that date began the manufacture of Portland cement in its plant, and has from that time continued such manufacture to a greater or less degree.

Respondents' complaint proceeds upon the theory that appellant owns in fee the site of the cement plant and large deposits of clay and limestone used in the manufacture of cement sufficient to supply its plant and operate it at its full capacity for more than 50 years, and that the capacity of the plant at present is about 1,600 barrels of cement per day. It is alleged that appellant intends to continue to manufacture, handle, and dispose of cement at its plant as it now is. It is alleged that in the process of the manufacture and in the handling and disposing of the cement noxious fumes and gases and particles of cement materials and cement were thrown out from the plant and carried by the prevailing winds in, over, and upon respondents' premises, penetrating the dwelling house and rooms, and injuring and destroying vegetation, and that respondents' premises are no longer desirable, comfortable, or valuable as residence property, that they have been greatly depreciated in value, and that by reason of the things alleged in the complaint this depreciation is permanent.

Appellant by answer admits that it owns in fee the deposits of clay and limestone, and is taking and using in its cement plant raw materials used in the manufacture of cement; that it has deposits sufficient to supply materials for the operation of the plant at its full capacity for more than 50 years; that it now manufactures about 800 barrels per day; that its present capacity is about 1,600 barrels of cement per day; and that it intends so to continue the manufacture of cement. It denies the allegation that large bodies of cement and the constituent elements thereof were blown by the prevailing winds in, over, and upon the premises of respondents, and deposited thereon, denies the injury to the crops, shrubs, trees, fruits, and grasses of respondents, as alleged, and denies generally the allegations of damage in the complaint.

1. Complaint is made of the tenth instruction given by the court to the jury as follows:

'You are further instructed that, if you find from the evidence by a fair preponderance thereof that the plaintiffs' land in the complaint described has been materially damaged by the operation of its cement plant in the manner alleged in the complaint, and that such damage is permanent in character, then I instruct you that, in estimating the plaintiffs' damages to their said land, the measure of such damages is the difference between the market value of the land as it was immediately before it was so damaged and the market value of the same in its damaged condition at the time of the bringing of this action, to wit, August 6, 1914, as a result of the operation of the defendant's cement plant.'

Appellant contends that the giving of this instruction was error, for the reason that it incorrectly states the measure of damages in cases of permanent nuisance; that the proper rule in case of permanent nuisance is the difference in market value before and immediately after the injury--citing Hunt v. Johnson (Tex. Civ. App.) 129 S.W. 879, and Missouri, K. & T. R. Co. v. Dennis (Tex. Civ. App.) 84 S.W. 860. The theory on which this contention is based is that the instruction resulted in permitting the jury to assess double damages. Respondents sued to recover $175 as temporary damage by reason of the injury to and loss of crops, as well as for the sum of $2,824.99 for permanent damages to their freehold. Respondents do not question the correctness of the rule contended for by appellant, but insist that the instruction complained of is the equivalent of an instruction numbered 6 by the court which was given as requested by appellant, which limited the consideration of the jury of the question of damages to the fruits, trees, grass, shrubbery, etc., and instruction No. 7 given by the court as to such items of the damage, stating the measure of damages to be the difference between the market value of the crops at the time of receiving the injury and their market value in the injured condition at the time the injury was received. We think there is no merit in the contention that the jury could have been misled into awarding double damages by reason of that instruction, in so far as this one contention is concerned, taking it in connection with the other instructions given by the court, some of them at the request of appellant.

2. A more serious difficulty is presented by appellant's claim that the eleventh instruction of the court was erroneous, in that the facts specified by the court to the jury as establishing the plant as a nuisance per se do not in law constitute a permanent nuisance nor warrant the application of the measure of damages allowed in the case of permanent nuisance.

By the portions of that instruction which are complained of the jury was told that if: (a) The character of its construction and equipment is modern; (b) the machinery and appliances are so placed and adjusted as to function properly and are properly and skillfully operated; (c) under such conditions the prevention of injury and damage upon which the instruction is predicated is not had; (d) such fumes, etc., are carried upon respondents' property by the prevailing winds, and settle and interfere with the comfortable enjoyment of the property, or materially damage the same; and (e) in the careful and skillful operation of the plant as so constructed and at its present capacity, it will necessarily continue to throw off such gases, etc., and that the same will be carried over and upon and injure respondents' property--then, as a matter of law, appellant's plant would be a nuisance per se, and that, as a matter of law, any damages to respondents' land resulting in the depreciation of the value of the land would be permanent, and it would be the duty of the jury to assess damages for such permanent depreciation of the value of the land not exceeding the amount sued for.

'A nuisance per se is an act, thing, omission, or use of the property which in and of itself is a nuisance, and hence is not permissible or excusable under any circumstances.' 21 Am. & Eng. Ency. Law (2d Ed.) 683.

The court in the instruction criticized may have used the term 'nuisance per se' inappropriately; for there is much apparent conflict of authority on the question whether or not a lawful business or erection can be a nuisance per se, but the instruction is not vitiated by such definition. Since there must be some place where every lawful business may be lawfully located or carried on, the better rule would seem to be that a lawful business is never a nuisance per se, but may become a nuisance by reason of extraneous circumstances such as being located in an inappropriate place, or conducted or kept in an improper manner. 21

Am. & Eng. Ency. Law (2d Ed.) 684; Wood, Nuisances, §§ 529, 530. In such case it is a nuisance in fact, and the determination is a question of fact. A smelting plant is not a nuisance per se, but may be located so as to be one in fact to other property owners. Sterrett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 P. 266

.

No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor (except such injuries as the public must suffer in common in order to permit lawful enterprises to operate) without compensating such for the damages actually sustained. Sterrett v....