Muncie Pulp Company v. Keesling
| Decision Date | 21 February 1906 |
| Docket Number | 20,597 |
| Citation | 76 N.E. 1002,166 Ind. 479 |
| Parties | Muncie Pulp Company v. Keesling |
| Court | Indiana Supreme Court |
Rehearing Denied May 17, 1906.
From Randolph Circuit Court; John W. Macy, Judge.
Action by Henry C. Keesling against the Muncie Pulp Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Reversed.
Engle Caldwell & Parry, W. A. Thompson and W. H. Thompson, for appellant.
Nichols, Goodrich & Bales and Harding, Hovey & Wiltsie, for appellee.
Jordan, J. Monks, J., did not participate in the decision of this case.
This action was originally commenced by appellee against appellant in the Delaware Circuit Court to recover damages for injuries sustained to his premises, attributed to the pollution by appellant of a certain stream of water known as Buck creek.
The complaint is in two paragraphs, each of which was held to be sufficient on demurrer for want of facts. The answer of appellant was a general denial and the statute of limitations. On change of venue the cause was tried by a jury in the Randolph Circuit Court, and a verdict returned in favor of appellee, awarding him damages in the sum of $ 4,000. Appellant's motion for a new trial, assigning various reasons therefor, was denied and judgment was rendered on the verdict.
The errors assigned and relied on for reversal are: (1) Overruling the demurrer to each paragraph of the complaint; (2) overruling the motion for a new trial.
The first paragraph of the complaint alleges that the defendant is a corporation organized under the laws of the state of New York, and is doing business in the State of Indiana; that before the time of committing the wrongs hereinafter described the plaintiff was and still is the owner in fee simple of a certain farm in Delaware county, in the State of Indiana (describing the land), containing 148 acres, through which the water of a certain stream known as Buck creek was accustomed to flow; that the defendant is the owner of a pulp-mill, located on said creek above plaintiff's farm; that the defendant empties, and for some time has emptied, the refuse of its said mill into said creek; that said refuse contains acid and other unwholesome ingredients, and the sediment thereof has accumulated and filled the channel of said creek, and in accumulating and filling up the channel of said creek has spread and is spreading over the lands of plaintiff, thereby rendering a large area thereof, to wit, sixty acres, untenantable and unfit for use, and on divers occasions has destroyed, and is now destroying, growing crops thereon, and has rendered, and is now rendering, the water in said creek unfit for use in watering stock and for other farm purposes, and has made said land of plaintiff practically worthless and unmarketable--all of which has damaged him in the sum of $ 15,000, for which he demands judgment and for all proper relief.
The second paragraph, in like manner as the first, alleges that the defendant, the Muncie Pulp Company, is a corporation, etc., and is engaged in the manufacture of wood pulp, and is the owner of certain described lands situate upon said creek about one mile above the lands of the plaintiff; that the ownership of plaintiff in the lands described in the complaint is shown, and it is alleged that these lands, before the wrongful acts of said defendant of which plaintiff complains, were improved, fertile and productive, producing large crops of grain, vegetables and other farm products, and well adapted to stock raising; that there is located on said premises and lands a dwelling-house, barn and other buildings, and that plaintiff and his family now reside upon said lands, and had so resided for many years prior to the commencement of this action. It is averred that said Buck creek is a natural watercourse and flows through said lands of plaintiff, and that said creek is a continuous and living stream; that prior to the grievances hereinafter mentioned said stream of water was largely fed by springs and afforded pure and excellent water for live stock, and for farming and domestic purposes; that in the year 1888 the defendant erected a large pulp-mill upon the lands owned by it, and placed thereon vats, machinery and other appliances for the manufacture of wood-pulp, and has been continuously engaged in said business from that time until the present; that in the operation of said mills the defendant uses various kinds of acids, minerals and poisonous and noxious substances, the properties of which are to the plaintiff unknown. The pleading then particularly discloses that in washing and carrying on the process of manufacturing the wood-pulp large quantities of water are used, which water, after being impregnated with said acids, minerals and poisonous substances, is permitted and caused by the defendant to flow into said Buck creek, and ever since the erection and construction of the defendant's mill this water, containing said acids, minerals, poisonous substances, etc., has flowed into said creek, and has poisoned and polluted the waters thereof and rendered the same unfit for agricultural and domestic purposes, and unfit to be used by the live stock and animals on plaintiff's farm and in the locality thereof.
It is further alleged that the defendant has caused, and is now causing, large quantities of said minerals and other refuse matters and poisonous substances and sediments from its said mill and factory to flow into said stream and be deposited in the bottom and sides thereof, and upon the lands adjacent thereto, and that said refuse, sediments and poisonous substances have been carried and are now being carried by the waters of said stream down to and upon plaintiff's land, and have spread, and are now spreading over the same, and have polluted and poisoned said land so much that grain, grass and other crops will not grow thereon; that the defendant has entirely destroyed and rendered useless thereby sixty acres of plaintiff's said land; that said substances and minerals so permitted by the defendant to flow in and upon plaintiff's land becomes hard and crusted, and in a great measure has destroyed said land for agricultural purposes and for the raising of stock; that the land so overflowed and destroyed is situated about the center of plaintiff's farm, and the waters of said stream, by being so poisoned, polluted and contaminated by said substances, produce, and have produced, a great and sickening stench, and that noxious exhalations and noxious and offensive smells arise therefrom, which render the habitation near said stream unhealthful, unpleasant and injurious; that said noxious and offensive odors and smells are offensive to the senses and interfere with the comfortable enjoyment of life and property of the plaintiff and to other inhabitants of said locality; that prior to the pollution of said creek by the defendant it contained many fish which afforded food to the plaintiff and his family and other inhabitants of said locality; that since the pollution thereof all the fish therein have been destroyed by and on account of the pollution, and it is impossible for such fish to live or to exist in said stream; that by reason of the noxious, nauseous, unhealthful, offensive and poisonous substances the plaintiff's lands have been greatly injured and damaged for farming purposes, for stock raising and also as a dwelling place for himself and family; that before the commission of the wrongs and grievances complained of plaintiff's lands were worth $ 100 per acre; that since the commission of the wrongs in question and by reason thereof said lands are worth only $ 60 per acre; that defendant is still committing the injury to plaintiff's land as hereinbefore described, and intends so to continue to do indefinitely; that by reason of the wrong and injury to plaintiff's premises herein complained of he is damaged in the sum of $ 15,000, for which he demands judgment and all other proper relief.
It is insisted by appellant's counsel that the court erred in overruling the demurrer to the first paragraph of the complaint, and to sustain their contention they point out six objections, among which are: (1) Because there is no direct allegation that the stream of water in controversy ran by or through the lands of appellee; (2) there is no averment that appellant company ran and operated the pulp-mill mentioned in the complaint; (3) there is no allegation that appellant emptied the refuse from said mill into Buck creek, etc. We cannot commend this paragraph as a model pleading, and possibly it is open to the objections that it is not as direct and positive in its character as the rules of good pleading require; but as the judgment must be reversed on another ground, and as all of the objections to the pleading may be obviated by amendment upon another trial, we therefore do not consider its sufficiency in this appeal.
It is contended also that the second paragraph of the complaint does not show a good cause of action and is bad pleading because the facts therein stated are not direct, but are mainly in narrative form. But these contentions are not sustained, and we hold that the paragraph sufficiently states a cause of action. That this is true is settled by the decisions of this court. See Muncie Pulp Co. v. Martin (1904), 164 Ind. 30, 72 N.E. 882, and cases there cited; West Muncie Strawboard...
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