Kinsman v. Utah Gas & Coke Co.

• Decision Date: 03 December 1918
• Docket Number: 3054
• Citation: 53 Utah 10,177 P. 418
• Parties: KINSMAN et al. v. UTAH GAS & COKE CO
• Court: Utah Supreme Court

177 P. 418

53 Utah 10

KINSMAN et al. v. UTAH GAS & COKE CO

No. 3054

Supreme Court of Utah

December 3, 1918

Appeal from the District Court of Salt Lake County, Third District Hon. T. D. Lewis, Judge.

Action by Hattie G. Kinsman and others against the Utah Gas & Coke Company.

Decree for plaintiffs. Defendant appeals.

AFFIRMED in part, and REVERSED and remanded in part, with directions.

Richards & Richards, C. C. Richards and F. C. Loofbourow for appellant.

Weber Olson & Lewis for respondents.

GIDEON J. McCARTY, CORFMAN, and THURMAN, JJ., FRICK, C. J concurring.

OPINION

GIDEON, J.

Plaintiffs, fifty-nine in number, by this action seek to enjoin the defendant from operating its gas plant at its location in the western part of Salt Lake City.

Plaintiffs are residents and owners of property in the immediate vicinity of the gas plant. The residences are located within a radius of 132 to 800 feet from said plant. It is alleged that in the operation of the gas plant cinders, smoke, obnoxious and poisonous gases are discharged on the premises of the plaintiffs, and as a result the air is polluted and made poisonous to such an extent as to cause great inconvenience to plaintiffs and their families; that such gases cause sickness, such as nausea, headache, etc., and that by reason thereof the homes of plaintiffs have become unhealthful and unfit for enjoyment, and the market and rental value of said premises has been greatly depreciated.

The defendant in its answer admits the ownership and operation of the gas plant. There is a general denial of the other allegations of the complaint.

The court, among others, found the following facts:

(a) "That the defendant now is, and ever since March 21, 1906, has been, a corporation organized under the laws of the state of Utah, and that since its organization it has built and constructed a large plant for the manufacture, generation, sale, and distribution of gas in Salt Lake City, Utah, on First South street, and between Ninth and Tenth West streets, and that defendant's said plant is near the properties and homes of the plaintiffs, and in a district of Salt Lake City that is both residential and manufacturing."

(b) "That said defendant at said place manufactures and generates gas in large quantities, and produces gas for fuel and illuminating purposes."

(c) "That the plaintiffs herein own residence property near the plant of the defendant, said property being hereafter more fully described."

(d) "The court finds that carbon monoxide, a very poisonous and nonodorous gas, is produced in large quantities by the defendant at its said works, but that from the evidence the court is not justified in finding that there is sufficient carbon monoxide in the atmosphere at any place, either on the defendant's premises or on the public highways or on the premises of the plaintiffs, to produce any symptom of carbon monoxide poisoning, or any injury to health, and the evidence wholly fails to justify the court in finding that sulphuretted hydrogen escapes from the defendant's premises in quantities to be injurious to health. But the court does find that the operation of said gas works and manufactory causes gases and fumes to be emanated therefrom that are offensive and disagreeable to the sense of smell; that said gases and fumes are offensively odorous and noxious; that they reach the premises of the plaintiffs herein and render the air impure and unwholesome; that they are deleterious to health, in that they irritate the mucous membrane and cause headache and nausea to many of the plaintiffs or to members of their families; that they annoy and injure the comfort and repose of the plaintiffs herein and members of their families, and so interfere with the comfortable enjoyment of life and of the property of the plaintiffs and of each of them as to render said property less fit for habitation for residence purposes; that said annoyance, discomfort, and injury is substantial and material to each of the plaintiffs, but in varying degree, and in some cases rendering the premises of the plaintiffs wholly unfit for residence purposes."

(e) "That by reason of said offensive and noxious gases and fumes reaching the premises of the plaintiffs herein from the defendant's said gas plant, and from the operation thereof, the rental and market value of the plaintiffs' property are very materially injured and depreciated, and renders said property so uncomfortable and so unfit for habitation as to justify the plaintiffs in asking, and the court in granting, the permanent injunction prayed for by the plaintiffs herein."

(f) "The court further finds that the noises emanating from the defendant's gas plant, as the same is now being operated, it having been admitted on the trial by the plaintiffs that since certain improvements were installed by the defendant the noises complained of at the time of the filing of the complaint were greatly lessened, and not now so annoying or disturbing to the plaintiffs as to constitute in themselves a nuisance, or to give rise to any cause of action against the defendant."

(g) "The court further finds that it is not shown by a preponderance of the evidence that the vegetation on the premises of the plaintiffs is injuriously affected by the gases emanating from the defendant's plant."

(h) "That the interference, annoyances, injuries, and damages to the plaintiffs and to their premises by the defendant through its operation of said gas plant and manufactory are continuously recurring; that prior to and since the commencement of this action, and during the trial of this cause, the defendant has made every possible effort to itself abate said nuisance, and to prevent the emanation of said offensive and noxious gases and fumes from its plant during the operation thereof, but that the defendant is unable by any device to abate said nuisance, and that the same cannot be abated except by discontinuing the operation of said gas plant and manufactory in its present locality, and that said nuisance, if the operation of said gas plant and manufactory is permitted to continue, is a permanent nuisance to the plaintiffs herein and to their property."

From the foregoing, as conclusions of law, the court found:

"That the operation of the gas plant and manufactory of the defendant upon the premises now occupied by it constitutes a permanent nuisance to plaintiffs, and to the premises of the plaintiffs, against which the plaintiffs have no plain, speedy, nor adequate remedy at law, and that plaintiffs are entitled to the relief prayed for in their complaint."

A decree was accordingly entered enjoining the defendant, after a period of 90 days, from operating its gas plant and manufacturing gas upon said premises, or in any locality from which the fumes and gases produced would reach the premises of the plaintiffs.

The defendant brings the case to this court on appeal.

It is vigorously contended that the findings of the court are not supported by the evidence, and this court is asked to review the testimony given and determine its weight. More than 300 witnesses were examined, and the trial of the case covered a period of something like eighty days. Much of the testimony is contradictory. Engineers were heard by the court who detailed at great length the process of manufacture, the methods by which the smoke was conducted from the furnaces and retorts, how the gas was conducted, and demonstrated that, so far as it is possible, no gas or odor was permitted to escape into the atmosphere, and consequently none could reach the premises of the plaintiffs. Other expert testimony was adduced which, at most, could have but an argumentative effect, to-wit, the result of experiments made to determine the presence of poisonous gases in the air around the premises of plaintiffs. Many other witnesses were heard for the defendant to the effect that while in or about the gas plant they had at no time observed any offensive odor in or near the plant or upon the premises of the plaintiffs.

The trial court, by agreement of all parties, during the pendency of the action visited the gas plant in company with counsel, and also alone at numerous times, and had opportunity to and did observe the locality, situation of plaintiffs' residences, the method of operating the plant, and from such personal visits was able to better understand and weigh the testimony of the witnesses than one not having that opportunity, and to determine from such personal observation the presence of offensive and noxious odors emanating from the gas plant and finding their way to the premises of the plaintiffs.

The plaintiffs' witnesses testified that, notwithstanding every effort made on the part of the defendant company to prevent the offensive odors escaping from the gas plant, it had not been successful, and that there were, periodically and at times continuously, offensive and noxious odors coming from the gas plant and entering upon the premises of the plaintiffs and into their homes. The weight of the testimony respecting the effect upon the health of the plaintiffs or the members of their families is not as convincing, conclusive, or satisfactory as that given in support of the other findings. I do not, however, understand from the court's findings that any serious sickness results, or is likely to result, from the odors coming from the defendant's plant, but merely that such offensive odors are deleterious, thereby causing nausea, etc., which, at most, is but temporary in its effect.

The defendant first constructed its gas plant in the years 1906-07, and enlarged the same about the year 1910. Without exception the testimony shows that the homes of the plaintiffs were built and occupied prior to...