Lester v. Highland Boy Gold Min. Co.

• Decision Date: 14 April 1904
• Docket Number: 1533
• Citation: 76 P. 341,27 Utah 470
• Court: Utah Supreme Court
• Parties: FEARGUES LESTER and DAVID D. LESTER, Respondents, v. THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, and ROBERT T. WHITE, Appellants

76 P. 341

27 Utah 470

FEARGUES LESTER and DAVID D. LESTER, Respondents, v. THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, and ROBERT T. WHITE, Appellants

No. 1533

Supreme Court of Utah

April 14, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Action to recover damages to growing crops. From a judgment in favor of the plaintiffs, the defendants appealed.

REVERSED.

Messrs Sutherland, Van Cott & Allison for appellants.

Messrs Henderson, Pierce, Critchlow & Barrette and C. S. Varian, Esq., for respondents.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

This is an action to recover for damages to growing crops. The amended complaint herein was filed April 16, 1902, and it was alleged, in substance, that about June, 1899, the defendant company, having erected the Highland Boy smelter, began operations, and thereafter, to the commencement of this suit, reduced large quantities of copper ores, and thereby caused to be emitted, from the smokestack of the smelter, smoke, gases, and fumes charged with various mineral substances, which were carried by the winds and deposited upon the farm of the plaintiffs, about a mile distant from the smelter; that these substances were highly deleterious to vegetable life; and that, as a consequence, the growing crops and trees on said farm were damaged and destroyed. The answer admitted the erection and operation of the smelter, but denied the other material allegations of the complaint. From the record and evidence it appears that the farm of the plaintiffs is situate from one-half to three-quarters of a mile northeast of the Highland Boy smelter, the west end of it being directly north thereof; that about 1 3-4 miles south of the Highland Boy is situated the Bingham Consolidated smelter; that about one-quarter of a mile south of the latter is the United States smelter; that the Bingham Consolidated was in operation during the latter portion of the time the plaintiffs sue for damages, that both the Bingham Consolidated and the United States smelters were in operation since the commencement of this action; that all the smelters were operated for the purpose of reducing ores; that the wind in that locality fluctuates, but that its general direction is north and south; and that the damages sued for were occasioned by the reduction of the ores, which created smoke, dust, gases, and fumes, that were carried by the wind onto the plaintiffs' farm and deposited on their crops and trees, causing them to be injured and destroyed. At the trial, the jury returned a verdict in favor of the plaintiffs for damages in the sum of $ 2,500, with interest thereon, from the commencement of the action to the date of the verdict, amounting to $ 259.44. Judgment was thereupon rendered for the sum of $ 2,759.44, with interest thereon at 8 per cent. from date thereof. The defendants appealed.

From the theory upon which this case was tried by the defense, it appears to be conceded that the plaintiffs are entitled to some compensation for injuries to their crops and trees, but the appellants insist that the court erred in its charge to the jury respecting the measure of damages. That portion of the charge objected to on this point reads as follows "The plaintiffs in this case are entitled to recover only such damages to their crops of lucerne, potatoes, oats, corn, beets, wheat, and such things as are sued for, as they were worth at the time when destroyed or injured, and at the place where injured or destroyed. In other words, if they were injured or destroyed at or before the time of harvest in the different years respectively, then in arriving at the damages you must take the market value of such products and crops not later than the prices prevailing at the time of such harvest, or during the market season." This instruction, considered as a whole, is clearly erroneous. The rule stated in the first sentence has the support of authority, but, in attempting to explain it in the last sentence, the court virtually set the rule aside, and misdirected the jury by stating that, in arriving at the damages, they must take the "market value of such products and crops not later than the prices prevailing at the time of such harvest, or during the market season." While, in cases of destruction of growing crops, it is proper and important to introduce and admit evidence showing the kind of crops the land is capable of producing, the kind of crops destroyed, the average yield per acre of each kind on the land in dispute, and on other similar lands in the immediate neighborhood cultivated in like manner, the stage of growth of the crops at the time of injury or destruction, the expenses of cultivating, harvesting, and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or destruction of the crops, and while all such evidence may be considered by the jury in determining the amount of damages, if any, still...