Lowther v. Southern Carbon Co.

• Decision Date: 25 April 1927
• Docket Number: 26376
• Citation: 112 So. 711,163 La. 757
• Court: Louisiana Supreme Court
• Parties: LOWTHER et al v. SOUTHERN CARBON CO

112 So. 711

163 La. 757

LOWTHER et al v. SOUTHERN CARBON CO

No. 26376

Supreme Court of Louisiana

April 25, 1927

Appeal from Sixth Judicial District Court, Parish of Ouachita; Fred M. Odom, Judge.

Suit by Charles A. Lowther, individually and as tutor for minors Marvin and Wesley Lowther, against the Southern Carbon Company. From a judgment rejecting plaintiffs' demands they appeal.

Affirmed.

M. C Redmond, of Monroe, and Todd & Todd, of Bastrop, for appellants.

McHenry Montgomery, Lamkin & Lamkin, of Monroe, for appellee.

OPINION

BRUNOT, J.

This is a suit for damages and for an injunction restraining and prohibiting the defendant from conducting certain operations of a carbon plant on land owned by it within a distance less than two miles from the residence of the plaintiffs. The suit was tried on the merits, and, from a judgment rejecting the plaintiffs' demands, they appealed.

The petition alleges that plaintiffs own a tract of land, in indivision, on which they reside; that defendant owns land adjoining the plaintiffs' property; that, during the two years preceding the filing of the petition in this suit, the defendant erected a carbon manufacturing plant on its said property near the division line separating its property from that of the plaintiffs and in close proximity to the plaintiffs' residence; that, during the year prior to November 27, 1920, the operation of defendant's plant on said site damaged the plaintiffs to the extent of $ 6,000 for this, to wit:

"That the apparatus for separating the liquefied petroleum gas or casing-head gasoline is situated within 50 feet of petitioners' said dwelling house; and the liquefied petroleum gas or casing-head gasoline, so separated from the natural gas, is conducted by pressure through pipes into six large storage tanks of 8,000 or 10,000 gallons' capacity each, which storage tanks are situated within 60 feet of petitioners' said dwelling house.

"That, in the ordinary process of operation, there is a continuous escaping of the essence of gas and fumes from the said separating apparatus, filling the air in and around petitioners' said dwelling. That frequently the tremendous pressure of the gas in the pipes and fittings to the said separating apparatus blows off ends of pipes, blows valves open, and such like, blowing the gas into and around petitioners' said dwelling house.

"That the said gas fumes are offensive to the smell and injurious to the health, and petitioner and his said minor children have suffered discomfort, annoyance, and injury to their health on account of said Southern Carbon Company blowing such fumes and gas into and around petitioners' said dwelling; and that it will require at least $ 1,000 each for petitioner and his said minor children to repair the injuries they have suffered within the past year on this account, which amounts petitioners are entitled to recover of said Southern Carbon Company.

"Petitioners further represent that great volumes of dense smoke come and are sent from the burning house of the plant operated by said Southern Carbon Company, into and about petitioners' said dwelling house, and said smoke blackens the said and the clothes, and all other things in and around said premises, and is offensive to petitioner and his said children, in being blackened by said smoke, and being offended by the odor of the same, and from its very nature the said smoke is injurious to the health of petitioner and his said children, and that petitioner and his said children have been damaged and injured by said smoke, to the extent of at least $ 1,000 each for petitioner and his said children, within the past year, which amounts petitioners are entitled to recover of said Southern Carbon Company."

The prayer of the petition is for a judgment in favor of the plaintiffs and against the defendant for $ 6,000, with legal interest thereon from judicial demand, and for an injunction restraining and prohibiting the defendant --

"from separating or storing any liquefied petroleum gas or casing-head gasoline, or conducting same through pipes, in a less distance than two miles away from petitioners' dwelling house, and * * * from letting, allowing, or permitting any smoke from the burning houses of its plant getting into or about petitioners' said dwelling and premises connected with said dwelling."

The defendant answered the suit, admitted the recital of facts averred in the preliminary paragraphs of the petition, but denied every other allegation therein. Before the case was tried, the following compromise agreement was entered into:

"State of Louisiana, Parish of Ouachita.

"Be it known, that on this the 4th day of June, A. D., 1921 before me, C. H. McHenry, a notary public, duly commissioned, qualified, and acting within and for the aforesaid parish and state, personally came and appeared Chas. A. Lother, who appears herein for himself individually and as the duly qualified natural tutor of his minor children, Marvin Lother and Wesley Lother, and for their use and benefit, all residents of the parish of Morehouse, state of Louisiana, and Southern Carbon Company, a Delaware corporation, herein represented by its attorney, Henry D. Briggs, who declared and said:

"1. That the said Chas. A. Lother, together with his two said minor children, is the owner of the following described land, to wit: Lots 4 and 5 in section 4, Tp. 20 N., R. 5 E. That upon the said above-described * * * land is situated the residence of said Lother and his said minors.

"2. That adjoining said property the said Southern Carbon Company is operating a carbon black manufacturing plant and a gasoline extraction plant.

"3. That in the suit No. 10054 on the docket of the Sixth judicial district court for the parish of Morehouse the said Chas. A. Lother, for himself individually and for the use and benefit of his said minors, is asking for the removal of certain gasoline storage tanks and for judgment against said carbon company restraining it from operating its said carbon black manufacturing plant, and its gasoline extraction plant, on account of danger of explosion and fumes, smokes and smells, all as a nuisance.

"4. That Southern Carbon Company denies all the allegations as made, but for the purpose of compromising and settling the differences, and putting an end to the litigation now pending,...