Indiana Pipe Line Co. v. Christensen

• Decision Date: 27 June 1919
• Docket Number: No. 23242.,23242.
• Citation: 123 N.E. 789,188 Ind. 400
• Parties: INDIANA PIPE LINE CO. v. CHRISTENSEN.
• Court: Indiana Supreme Court

188 Ind. 400

123 N.E. 789

INDIANA PIPE LINE CO.

v.CHRISTENSEN.

No. 23242.

Supreme Court of Indiana.

June 27, 1919.

Appeal from Circuit Court, La Porte County; James F. Gallaher, Judge.

Action by Christian Christensen against the Indiana Pipe Line Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction to sustain defendant's motion for new trial.H. D. Bushnell, Holman, Bernetha & Bryant, of Rochester, Simmons & Daily, of Bluffton, and Myers, Gates & Ralston, of Indianapolis, for appellant.

George Burson, of Wenamac, Darrow & Rawley, of La Porte, and Francis M. Trissal, of San Pierre, for appellee.

LAIRY, C. J.

This was an action to recover damages for the loss of cattle and the permanent injury to the 700-acre farm of appellee, Christian Christensen, occasioned by the escape of oil from the pipe line of appellant, Indiana Pipe Line Company. Appellee's complaint alleges among other things that he is the owner of 700 acres of land in Stark county, Ind., which he has used for the past 20 years for the combined purposes of general farming and stock-raising, and which is located on both sides of Pine creek below the point where Pine creek is crossed by appellant's pipe lines, which are used for the purpose of transporting crude petroleum oil across the state of Indiana. It is alleged that appellant negligently, carelessly, and knowingly failed to make any proper inspection of its pipe lines, and knowingly allowed the pipe lines to become disjointed, rotten, decayed, eaten with corrosion, and leaky, so that at divers times during the years 1914, 1915, and 1916 great quantities of crude petroleum oil escaped from appellant's pipe lines and flowed over and upon 500 acres of appellee's land, permeating, saturating, and poisoning the soil. The complaint states, that, by reason of the escape of such oil, the grasses and other vegetation of appellee's lands were destroyed, and the cattle of appellee became sick and died from the effects of the oil on the grass and in the water which they drank. It is also alleged that the use of the entire 700-acre tract was impaired by reason of the destruction of the productive qualities of the 500 acres. A trial by jury resulted in a verdict and judgment in favor of appellee for the sum of $17,000.

[1][2] The controlling question presented by the several assignments of error relates to the measure of damages applicable to a case of the kind here presented. Appellant asserts that the evidence shows only an injury to the products of the soil by a continuing abatable nuisance and insists on the rule of damages applicable in such cases. In cases of this character damages can be recovered only to the date of the action, as there is a presumption that the cause which produces the damage will be removed by an abatement of the nuisance. If the nuisance is not abated, its continuance, resulting in a damage, is a new and separate injury, which gives rise to a new cause of action. Successive actions may be maintained so long as the nuisance is permitted to continue, in which damages may be recovered for all injury occasioned prior to the commencement of the action and within the statute of limitations, not extending back of a former recovery. The measure of damages in such a case is the depreciation in the rental value of the real estate affected. Cleveland, etc., R. Co. v. King (1900) 23 Ind. App. 573, 55 N. E. 875;Vandalia R. Co. v. Yeager (1915) 60 Ind. App. 118, 130, 110 N. E. 230.

[3] The rule stated applies to a tort of a continuous nature. By that is meant a wrongful act which produces a state of affairs, the continuance of which constitutes a new wrong each moment; but it does not apply to a single completed wrongful act resultingin an injury, the effects of which will continue indefinitely. The damages occasioned by such an injury must be entirely compensated in a single award, as there is no continuing wrong on which to base successive actions. The award covers all resulting damages, both past and prospective. City of Lafayette v. Nagle (1887) 113 Ind. 425, 15 N. E. 1;Porter v. Midland R. Co. (1890) 125 Ind. 476, 25 N. E. 556.

[4] Where a portion of the land is permanently appropriated, or where it is so occupied as to deprive the owner permanently of the occupation or use of a portion of his land, the general rule as to the measure of damages is the depreciation in the market value of the land occasioned by the appropriation or trespass. In the case of Indiana, etc., R. Co. v. Eberle (1886) 110 Ind. 542, 11 N. E. 467, 59 Am. Rep. 225. Judge Mitchell, speaking for the court, said:

“Whether the plaintiff may recover for the permanent depreciation in the value of his property depends upon the permanent character of the injury and the frame of the action. Where the character of the injury is permanent, and the complaint for damages recognizes the right of the defendant to continue in the use of the property wrongfully appropriated, and to acquire, as a result of the suit, the plaintiff's title to the right appropriated, we can see no reason why the damages may not be assessed on the basis of the permanent depreciation in value of the property injured, as in Henderson v. New York, etc., R. Co., 78 N. Y. 423;Lohr v. Metropolitan Ele. R. R. Co. , 10 N. E. 528;Wichita, etc., R. Co. v. Flechheimer , 12 Pac. 362; Wood, Nuisances, § 856; City of North Vernon v. Voegler, 103 Ind. 314 .”

In the case at bar the court adopted the measure of damages applicable to the assessment of damages for lands appropriated. Evidence was admitted as to the market value of the entire 700-acre tract of land immediately before it was overflowed by the oil which escaped from defendant's pipe lines and the value of the same land after such overflow; and, under the instructions, the jury was permitted to base its award of damages on evidence of this character. Appellant asserts the trial court erred in applying this rule for the assessment of damages to the facts as disclosed by the evidence in this case.

There is evidence to show that in the years 1914, 1915, and 1916 quantities of oil escaped from the pipe lines owned and operated by appellant company and was carried on the surface of the water down the ditches constructed through lands owned by appellee, and that, by reason of the water overflowing the lands of appellee, the oil was carried on and over parts of said land, where it remained on the grass and vegetation and in the soil after the water receded or evaporated. A part of the land, having an area of about 500 acres, was prairie land, and the remainder consisted of higher land, on which the buildings were situated. There is no evidence that the high land was affected by the oil, but there is evidence to show that oil was found in considerable quantities on portions of the low land, and that it permeated the soil and was found on the grass and vegetation growing thereon. The evidence shows that the low land prior to the overflow produced native perennial grasses, which were valuable for pasturage and for hay, and that, in the years following the floods and before the trial, which began on the 28th day of September, 1916, portions of the land on which this grass had previously grown failed to produce the grass, being covered by weeds instead. As disclosed by the evidence, the land had been previously used for a stock farm, the low lands being utilized as meadow and as pasture for the cattle, and the buildings constructed on the higher land being of a size and character suitable for the storage of feed and the shelter of stock. There can be no doubt that it was the theory of the plaintiff below that the injury to the real estate was of a permanent character, affecting the value of the farm as a whole, and that the trial court adopted that theory on the trial.

Appellant takes the position that, under the law and the evidence, appellee was not entitled to recover permanent damages to the farm as a whole, measured by the diminution in the market value of the fee-simple interest therein, for the reason that the evidence fails to show any title in appellee as to that portion of the farm lying north of the meander line established by the government survey and containing about 192 acres. It is asserted that appellee was required under the law to prove title to the land affected, and that the evidence shows that the title to the part of the farm on which the buildings are located north of the meander line in section 36 rests in the state of Indiana or in the government of the United States. This position of appellant is met by appellee with the proposition that a person who is in possession of land claiming to be the owner may maintain an action against a wrongdoer for permanent injury to the land without disclosing anything further than his possession and claim of ownership; and that such wrongdoer cannot set up an outstanding title in a third party for the purpose of defeating a recovery. As sustaining this proposition, appellee cites several authorities which he claims to be in point: Bristol H. Co. v. Boyer (1879) 67 Ind. 236;Ohio, etc., R. Co. v. Trapp (1891) 4 Ind. App. 69, 30 N. E. 812;Cleveland, etc., R. Co. v. Born (1911) 49 Ind. App. 62, 96 N. E. 777;Barber v. Barber (1863) 21 Ind. 468;Winship v. Clendenning (1865) 24 Ind. 439.

Appellant cites a number of cases to sustain the proposition that it is necessary for the plaintiff to prove title to the land in cases where he seeks to recover damages for permanent injury to the freehold. Thompson v. Norton (1860) 14 Ind. 187;Broker v. Scobey (1877) 56 Ind. 588;Start v. Clegg (1882) 83 Ind. 78;Lafayette v. Wortman (1886) 107 Ind. 404, 8 N. E. 277;Burrow v. Terre Haute (1886) 107 Ind. 432, 8 N. E. 167;Porter v. Midland Co. (1890) 125 Ind. 476, 25 N. E. 556.

[5] The cases cited have been of no material assistance to the court. The foundation of the action quare clausum fregit is the breaking by defendant of...