International Paper Co. v. Maddox, 14296.

• Decision Date: 06 May 1953
• Docket Number: No. 14296.,14296.
• Citation: 203 F.2d 88
• Parties: INTERNATIONAL PAPER CO. v. MADDOX.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 88 (1953)

INTERNATIONAL PAPER CO. v. MADDOX.

No. 14296.

United States Court of Appeals Fifth Circuit.

April 3, 1953.

Rehearing Denied May 6, 1953.

H. M. Holder, Shreveport, La., Geo. T. Madison and E. F. Madison, Bastrop, La., John H. Tucker, Jr., Shreveport, La., for appellant.

R. H. Lee, Benton, La., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

This is an action by the appellee for temporary and permanent damages resulting to his property and his established fishing business by a continuing nuisance, maintained by the appellant in the operation of its paper mill in Webster Parish, Louisiana. He alleges that the effluent refuse matter from said mill drains into Bodcau Bayou; that this enormous quantity of waste water, aggregating about 12,000 gallons per minute, contains chemicals, fibrous matter, and other impurities, which completely destroy all plant and aquatic life in said bayou; and that the water therein, in consequence, has become devoid of oxygen, highly odorous, and unfit for fishing purposes, private or commercial. The court below awarded damages to the plaintiff, but denied an injunction restraining the defendant from any further operation of the mill. From this judgment the defendant appealed.

The appellant's specifications of error include the defense of a general denial that it has created or is maintaining any nuisance, and the pleas of release, estoppel, prescription, res judicata, excessiveness of damages, and accord and satisfaction. In ruling on the motion for a new trial, the court below said: "A steady fight, inch by inch, is made by the defendant company. It has zealous, persistent, and eminent counsel * * *. In this the second case we are doing for the defendant what its representatives have yet failed to do, and that is to pay Mr. Maddox once and for all. The defendant has so worked, by its sedimentation plans and manner of controlled discharge, that there is still fishing in Bodcau, but it is spotty and principally at the dam; importantly, it is distasteful fish to many for eating. Commercial fishing (buffalo) is practically extinct. If the fishing now were permanently and totally destroyed, we should be allowing the plaintiff at least $20,000, and not the sum of $5000. We have done our best. Of course, neither side is satisfied."

This action follows an earlier suit between the same parties, which is reported in Maddox v. International Paper Co., D.C., 47 F.Supp. 829; the same trial judge heard both cases. After the rendition of the judgment in the first case, the plaintiff and defendant therein entered into an agreement under the terms of which the defendant (appellant here) paid the plaintiff (appellee here) the amount of the judgment awarded by the lower court, plus the additional sum of $3000 for "any damages that might thereafter arise up to and including December 31, 1946." Plaintiff also granted the defendant (appellant herein) "full flowage rights across any and all property" owned by him, real and personal, "with full acquittance and release of any damages caused thereby up to and including December 31, 1946." After the expiration of the above period, the appellee on May 19, 1948, filed the present suit. In it he seeks permanent damages for the total destruction of his fishing camp and fishing business, loss of improvements, loss of value of camp sites, loss of profits for the years 1947 and 1948, and other items.

We think the plea of res judicata is not well taken. The pollution and its causes are recurrent or continuing nuisances; and actions for such temporary successive injuries from pollution are independent of one for pollution that is permanent in character. The first and second suits between these litigants are based upon separate causes of action, the first being for damages to appellee's business resulting from pollution within the then prescriptive period, and the instant suit being for permanent damages for its total destruction. There is a difference between a claim for total temporary damages and one for total permanent damages. The lower court so interpreted the appellee's demands, and the parties themselves recognized the distinction in the compromise settlement and release for three successive years ending December 31, 1946.

There is a maxim that one is so to use his own as not to injure another's property (Sic utere tuo ut alienum non laedas). It must be applied harmoniously with the maxim of De minimis non curat lex, but there is no question of the latter in this case; and the appellee had the right to presume that the appellant would abate this nuisance at the earliest practicable moment. This presumption was strengthened by the defendant's plea that it was engaged in continuous research for the purpose of controlling the waste disposal and reducing the waste content of the water discharged from its mills. During the war years (as claimed) it was unable to get delivery of certain needed equipment, but within the last three years it had secured this equipment and was completing the installation thereof,...