McDonough v. Russell-Miller Milling Company, a Corp.

• Decision Date: 25 January 1921
• Citation: 182 N.W. 251,47 N.D. 237
• Court: North Dakota Supreme Court

182 N.W. 251

47 N.D. 237

JOHN MCDONOUGH, Appellant, v. RUSSELL-MILLER MILLING COMPANY, a Corporation, Respondent

Supreme Court of North Dakota

January 25, 1921

Rehearing denied March 26, 1921.

From a judgment of the district court of Burleigh County, Nuessle Special Judge, plaintiff appeals.

Reversed and remanded for a new trial.

Reversed and remanded.

T. F Murtha and C. H. Starke, for appellant.

After a judgment has been rendered in an action and while such judgment remains in full force and effect, a court does not possess the power to dismiss the action. Todd v. Todd, 7 S.D. 174, 63 N.W. 777; Barnett v. Will (N.D.) 166 N.W. 511.

"The theory of the law is that the infliction of past damages will cause the abatement of a temporary nuisance; if it does not successive actions may be maintained." R. Co. v. Pattison, 67 Ill.App. 351; 11 Dec. Dig. (Judgment) § 606; Bowers v. Boom Co. 81 N.W. 208; Bennett v. Marion (Iowa) 93 N.W. 558; Sanitary Dist. v. Ray (Ill.) 64 N.W. 1048; R. v. Church (U. S.) 34 L.Ed. 784.

The recovery of the judgment in the first action settled the fact that the deposit of sewage into the Heart river was a nuisance for which plaintiff might recover damages. 2 Black, Judgm. § 742; Casebeer v. Mowry, 93 Am. Dec. 766.

Young, Conmy, & Young, for respondent.

The verdict is excessive. Durham v. Eno Cotton Mills (N. C.) 7 L.R.A. (N.S.) 321, 54 S.E. 453; 27 R. C. L. 1216.

ROBINSON, Ch. J. and CHRISTIANSON and BIRDZELL, JJ., concur. GRACE, J., BRONSON, J., (dissenting).

OPINION

PER CURIAM:

This action was commenced by the plaintiff in January, 1919, to recover damages for the alleged pollution by the defendant of the waters in Heart river. The case was tried to a jury, and resulted in a general verdict in favor of the plaintiff in the sum of $ 9,852.98. Judgment was entered pursuant to the verdict. Defendant moved for judgment notwithstanding the verdict or for a new trial. The trial court ordered judgment in favor of the defendant notwithstanding the verdict. Judgment was so entered, and the plaintiff appealed.

This litigation, or rather another phase thereof, was before this court in a former action. McDonough v. Russell-Miller Mill. Co. 38 N.D. 465, 165 N.W. 504. Both parties are riparian owners upon the Heart river within the limits of the city of Dickinson. The plaintiff owns a tract of land traversed by the Heart river. The tract originally consisted of 160 acres. Later plaintiff platted a portion of it, on both sides of the river, as an addition to the city of Dickinson, and sold some of it, for residence lots. Of the remainder, 40 acres are under cultivation, and about 80 acres in pasture. The plaintiff also used to maintain an ice house, which is situated on the bank of the river on this land. Immediately below plaintiff's land is a concrete dam constructed by the Northern Pacific Railroad Company about 1908 or 1909. This dam is situated about 2,060 feet below plaintiff's ice house, and he cut ice from the pond formed above the dam.

The defendant owns a tract of land up stream from plaintiff's premises. In 1910 the defendant constructed a large flour mill upon said tract of land. The drainage from the mill led into the river at a point 6,350 feet above plaintiff's ice house. The plaintiff claimed that this drainage polluted the waters of the Heart river. And in June, 1914, he brought an action against the defendant, wherein he claimed that this drainage polluted the waters of the Heart river, and caused them to become "absolutely unfit for any use in connection with any human or animal food or drink, and rendered all ice cut on said pond unfit and dangerous for use to which ice is commonly used, and valueless and unsalable, thereby destroying utterly the value and profitableness of said ice business" (38 N.D. 465, 471), and asked that he be awarded damages in the sum of $ 40,600 for: (1) The loss of profits of value or the ice cutting privilege; (2) the expense incurred one winter in cutting off about five inches from the bottom of the cakes of ice when such bottom part was filled with black specks; (3) the loss of the use of the land for pasturage purposes; and (4) the additional expense for cutting and hauling ice a distance of about two miles during the winter of 1913-14; and that defendant be enjoined from continuing the acts which it was asserted caused the pollution of the stream. 38 N.D. 465, 474. A trial of that action resulted in a judgment in favor of the plaintiff for $ 100, allowed as and for nominal damages, and denial of the injunctive relief prayed for. That judgment was affirmed by this court. 38 N.D. 465. The drainage from the mill, complained of in that case, consisted of certain water wherein wheat had been washed, and the discharge of a certain water-closet used by the employees of the mill. 38 N.D. 465, 471. Upon the trial of that action it was shown that the defendant was constructing a septic tank; that the latest and most approved scientific apparatus and appliances for purification were utilized in such construction; that the same would completely deodorize and destroy all bacteria and germs; that a large force of men was then at work on such construction; and that the tank would be fully completed and in use within ten days or two weeks from that time. And in the findings of fact, signed several months later, the trial court found that the defendant had "installed a septic tank at its said mill and elevator, and that since that time it has not discharged, and is not now discharging, into the Heart river, any sewage from its said mill and elevator." 38 N.D. 465, 482. The defendant pleaded the judgment in the former action as a bar in this action, and the judgment roll and the transcript of the evidence in that action was offered and received in evidence in this case, and the court was requested to take judicial notice of the decision of this court in the former action.

In this action plaintiff seeks to recover damages for pollution, alleged to have taken place since the trial of the former action. It is contended that the septic tank did not do the work it was supposed to do, and that sewage was discharged into the river; that the defendant put manure on its dam, and repaired breaks therein by filling in manure; that oil and grease was discharged into the water, and that refuse, sweepings and waste matter from the mill were dumped into the river, and were placed upon the banks of the river so that they found their way into the river. As a result thereof plaintiff claims that, since the trial of the former action and up to the commencement of this action, he was damaged, and entitled to judgment, as follows: "$ 7,500 for the pollution of the ice field; $ 3,000 reduced rental of pasture; $ 2,000 damages for interfering with the enjoyment of his dwelling and premises by reason of the bad odors; $ 5,000 damages for preventing the sale of said lands; $ 5,000 exemplary damages." No evidence whatever was offered as to the loss of sale of the premises. And at the close of the testimony the trial court announced that in his judgment there was no room for the allowance of exemplary damages. There was submitted to the jury for determination whether, and to what extent, plaintiff had been damaged: (1) By the pollution of his ice field so that he could not cut ice himself or sell or lease the ice cutting privilege to others; (2) lessened rental value of his pasture; and (3) interference with the use and enjoyment of his dwelling house by reason of bad odors. In answer to special interrogatories the jury found that the value of the untilled land for pasturage purposes was $ 800 per year, and that its value for haying purposes was $ 300 per year; that plaintiff has sustained damages in the sum of $ 1,602.98 on account of the bad odors which prevented his full enjoyment of the dwelling house. The verdict returned in favor of the plaintiff was for $ 9,852.98.

We are entirely satisfied that the verdict cannot stand, and that the trial court was correct in so far as he held that the plaintiff could not recover any damages for the alleged damages occasioned by pollution of the ice field. The plaintiff testified that in the course of the years he had taken this ice and sold it to the people of Dickinson and vicinity; and that the ice cutting privilege during the years involved in this action was worth from $ 1,500 to $ 2,000 per year. Yet the evidence shows that prior to the time involved in this action, the city of Dickinson enacted an ordinance prohibiting the cutting of ice on Heart river at any point within the limits of the city of Dickinson. That ordinance was in effect before the first action was brought. It was considered, and its provisions referred to, in our decision in that case. See, 38 N.D. 465, 478. That action was tried anew in this court. There was no difference of opinion among its members as to either the facts or the law. The ordinance by its terms, (a) "prohibited the cutting of ice from that portion of the Heart river within the city limits, east of the milldam," and, (b) "required all persons desirous of cutting and packing ice for sale or distribution within the city of Dickinson to apply to the local board of health, and receive its approval as to the sanitary condition of such ice." 38 N.D. 465, 475. In that action the plaintiff contended that the ordinance had been "adopted because the city authorities had determined that the drainage from the mill polluted the waters in the Heart river and rendered the ice therein unfit for human use. In support of this contention plaintiff called Dr. Davis and one Rabe, two members of the local board of health, who testified in regard to the reasons for the action of the city officials." 38 N.D. 465, 478.

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