Midland Empire Packing Co. v. Yale Oil Corp. of S. D.

• Court: Montana Supreme Court
• Writing for the Court: ANGSTMAN, Justice.
• Citation: Midland Empire Packing Co. v. Yale Oil Corp. of S. D., 169 P.2d 732, 119 Mont. 36 (Mont. 1946)
• Decision Date: 04 June 1946
• Docket Number: 8639.
• Parties: MIDLAND EMPIRE PACKING CO. v. YALE OIL CORPORATION OF SOUTH DAKOTA et al.

169 P.2d 732

119 Mont. 36

MIDLAND EMPIRE PACKING CO. v. YALE OIL CORPORATION OF SOUTH DAKOTA et al.

No. 8639.

Supreme Court of Montana

June 4, 1946

Appeal from District Court, Thirteenth District, Yellowstone County Guy C. Derry, Judge.

Action by Midland Empire Packing Company against Yale Oil Corporation of South Dakota and another to abate an alleged nuisance and to recover damages. From a judgment sustaining demurrers to its amended complaint, plaintiff appeals.

Judgment affirmed.

H. C. Crippen and M. J. Lamb, both of Billings, for appellant.

Coleman Jameson & Lamey and Harry C. Chapman, all of Billings, for respondents.

ANGSTMAN Justice.

This appeal is to have determined the question whether the district court was right in sustaining demurrers to plaintiff's amended complaint.

The action seeks to abate an alleged nuisance and to recover damages. It was commenced in April, 1944, against the Yale Oil Corporation alone. Later the Yale Oil Corporation sold its refinery to the defendant Carter Oil Company and thereafter an amended and supplemental complaint was filed naming the Carter Oil Company as a defendant.

The important allegations of the amended complaint which was filed November 30, 1944, are these: Plaintiff owns land in Billings on which it and its predecessors for the past 35 years have operated a slaughter house; that the defendant Yale Oil Corporation for approximately the past 15 years has owned and operated an oil refinery on adjacent property; that in its operations crude oil containing noxious chemical substances is permitted to flow onto plaintiff's land permeating the soil in and under its premises and entering floors and walls of buildings of its packing plant, rendering plaintiff's premises unfit for the purposes designed and injuring and damaging its plant and appliances and polluting a well on its property making it necessary for plaintiff to buy city water at a cost of $200 per month; that the oil and its fumes and vapors have an injurious effect upon plaintiff's meat products and in addition cause a fire hazard and a continuing nuisance to its property and business; that plaintiff has been damaged in the sum of $250,000; that in May, 1944, and subsequent to the commencement of the action the defendant Yale Oil Corporation 'either sold, transferred or conveyed all its right title, interest and estate in and to said oil refinery and the assets, property and equipment hereof, to the defendant, the Carter Oil Company, or became amalgamated or merged therewith, through some transactions and dealings unknown to the plaintiff but known to both of said defendants;' that since then the Carter Oil Company has been in possession of and owned, operated and controlled the refinery and claims to be the sole and exclusive owner and operator thereof. In the briefs of counsel for both parties the transaction whereby the Carter Oil Company became the owner of the property is treated as a sale and no reliance is placed upon the allegation of amalgamation or merger of the two corporations. The district court likewise treated the transaction as a sale and we shall do the same.

The separate demurrers filed by each defendant were based upon several grounds but the court sustained them on the following two grounds only:

'First: That causes of action have been improperly united in that said amended and supplemental complaint states one cause of action against the defendant, Yale Oil Corporation of South Dakota, and another, an independent cause of action, against the defendant, The Carter Company, a corporation, which are united and pleaded as one cause of action against said defendants jointly.

'Second: That there is a misjoinder of parties-defendant in that a cause of action is attempted to be pleaded against joint defendants when it is affirmatively shown by the amended and supplemental complaint that the two defendants could not be jointly liable for the injury which is the subject of the action.'

The rule is statutory in Montana that in one and the same action a nuisance may be abated and damages awarded. Section 9474, Revised Codes; Chessman v. Hale, 31 Mont. 577, 79 P. 254, 68 L.R.A. 410, 3 Ann.Cas. 1038; Watson v. Colusa-Parrot, etc., Co., 31 Mont. 513, 79 P. 14.

The precise question before us is whether the lower court was right in condemning the complaint for improperly uniting causes of action or for misjoinder of parties defendant. In substance the district court found that the only cause of action pleaded against defendant Yale Oil Corporation is one for damages caused by it while it owned the property complained of and that as against it the complaint does not and cannot state grounds for a restraining order; that as to the Carter Oil Company the only cause of action stated is for an abatement of the alleged nuisance and for damages caused by it since it has been the owner of the refinery; that it is not liable for damages caused while the Yale Oil Corporation was the owner. Defendants contend that the court's ruling is supported by the holding in Howell v. Bent, 48 Mont. 268, 137 P. 49, 51, where this court said: 'It is well settled that when two or more parties act, each for himself, in producing a result injurious to the plaintiff, they cannot be held jointly liable for the acts of each other; nor, in the absence of statutory authorization, can they be sued in one action for the entire damage, either with or without an apportionment to each of his share of the damage.' They rely upon the general rule that in order to hold the two defendants jointly liable there must have been some joint or concurrent act or community of action or duty and none is alleged. Brose v. Twin Falls Land & Water Co., 24 Idaho 266, 133 P. 673, 46 L.R.A.,N.S., 1187; Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550, 22 Am.St.Rep. 254; Keyes v. Little York Gold, etc., Co., 53 Cal. 724. They contend for the rule stated in Watson v. Colusa-Parrot, etc., Co., supra, where it was said [31 Mont. 513, 79 P. 16]: 'If such damage arose [by reason of the maintenance of a nuisance], plaintiffs or their predecessors in interest were entitled to recover against the predecessors in interest of this defendant for such damage prior to the date when defendant became the purchaser and came into possession and operation of the property. Therefore, under any theory, plaintiffs could not recover damages against this defendant which were the result of acts committed prior to the day it became owner of the plant.' Likewise defendants rely upon section 9130 which permits the joinder of causes of action only when they 'affect all the parties to the action.' Baker v. Hanson, 72 Mont. 22, 231 P. 902, 904.

Plaintiff relies upon section 8646, Revised Codes, and contends that under it both the seller and the purchaser are liable for the nuisance and that the seller cannot escape liability by selling. Section 8646 provides: 'Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it.'

We agree with defendants' contentions above noted and that the court properly sustained the demurrers.

Defendants contend that section 8646, Revised Codes, is limited to nuisances which are created by the erection of a structure and which may be termed nuisances per se and that it does not comprehend a nuisance arising because of the manner of using property or a structure whose mere creation did not constitute a nuisance. Defendants' contentions in these respects must be sustained.

In Brose v. Twin Falls Land & Water Co., supra, there was involved a statute identical with our section 8646. In that case one defendant constructed and operated an irrigation canal over and across plaintiff's land from 1905 until 1909 at which time it was sold to the other defendant who had operated it since them. The court in holding that the complaint, which sought damages against both defendants improperly united two causes of action,...