National Energy Corp. v. O'Quinn, 791073

• Decision Date: 22 January 1982
• Docket Number: No. 791073,791073
• Parties: NATIONAL ENERGY CORPORATION v. Troy O'QUINN, et al. Record
• Court: Virginia Supreme Court

Page 181

286 S.E.2d 181

223 Va. 83

NATIONAL ENERGY CORPORATION v. Troy O'QUINN, et al.

Record No. 791073.

Supreme Court of Virginia.

Jan. 22, 1982.

Thomas R. Scott, Jr., N. D. Street, Grundy (Street, Street & Street, Grundy, on brief), for appellant.

Robert T. Winston, Jr., Norton (Mullins, Winston & Roberson, Norton, on brief), for appellees.

Before CARRICO, C. J., COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ., and HARRISON, Retired Justice.

COMPTON, Justice.

This appeal involves the law of private nuisances. When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gases, the operation of such business is a nuisance. Barnes v. Quarries, Inc., 204 Va. 414, 417, 132 S.E.2d 395, 397 (1963). The term "nuisance" includes "everything that endangers life or health, or obstructs the reasonable and comfortable use of property." Id. Accord Newport News v. Hertzler, 216 Va. 587, 592, 221 S.E.2d 146, 150 (1976). See Foley v. Harris, 223 Va. 20, 286 S.E.2d 186 (1982), decided today. But every trifling or imaginary annoyance that may offend the sensibilities of a fastidious person is not actionable. Bragg v. Ives, 149 Va. 482, 496, 140 S.E. 656, 660 (1927).

A nuisance may diminish value of realty. The condition also may interfere with some right incident to the ownership or possession of real property. Such interference may be accomplished by substantially impairing the occupant's comfort, convenience, and enjoyment of the property, causing a material disturbance or annoyance in use of the realty. Virginian Railway Co. v. London, 114 Va. 334, 344-45, 76 S.E. 306, 307-08 (1912).

Here, 11 property owners, whose residences were situated in Dickenson County adjacent to State Route 83 and Russell Prater Creek, filed six separate damage suits in 1976 against appellant National Energy Corporation, the sole defendant below. ^* Each plaintiff alleged that defendant built a coal tipple with hopper, feeder, and crusher close to their land and began operation of a coal preparation plant. They further asserted that defendant's operation of the facility caused coal dust to be spread over the plaintiffs' properties and homes, and caused loud and excessive noise to be emitted from the plant. These conditions, plaintiffs alleged, decreased the value of their property and deprived them of the quiet, comfortable use of their residences.

In a 1978 jury trial of the consolidated actions, during which the jury viewed the scene, verdicts were rendered in favor of the plaintiffs aggregating $110,000. The trial court overruled defendant's motions to set the verdicts aside and entered final judgment on each verdict in a 1979 order, from which we awarded defendant this appeal.

The following questions, emphasized by defendant on appeal, are dispositive. First, did plaintiffs adduce sufficient evidence to present an issue for the jury that defendant's operation created a nuisance? Second, was the evidence sufficient to show plaintiffs were damaged by the nuisance, and to show the extent and source of the damages? We answer both questions in the affirmative.

Under familiar appellate principles, we view the evidence in the light most favorable to the plaintiffs, who are here armed with jury verdicts in their behalf approved by the trial judge.

The situs of this controversy is between Haysi on the west and a plant operated by Clinchfield Coal Company on the east. At the scene, the two-lane state road runs generally east and west being paralleled by the creek to the south. There is a two-lane public bridge over the creek intersecting the road from the south. At that point the road curves almost 90 degrees to the northeast for a vehicle travelling east and to the northwest for a vehicle travelling west.

Defendant's plant was established and began operating in 1975, subsequent to plaintiffs' acquisition of their properties and occupancy of their homes. The plant is situated south of and adjacent to the creek, west of the bridge. The properties and homes involved in five of the suits are located in a row south of and adjacent to the highway, east of the bridge and north of the creek. The residence nearest defendant's facility is about 325 feet from the plant while the easternmost home is about 635 feet away. The property involved in the sixth suit is located north of and adjacent to the highway, west of the bridge, and about 550 feet from the plant.

At the facility, defendant cleans raw coal. The plant usually operates from 7:00 a. m. to 9:00 p. m., six days a week. The coal is fed through a washer, cleaned, separated from rock, and crushed. The plant consists of a stockpile of coal, begun in 1974, bins, a rock picker, a shaker or vibrator, a washer, and loaders. Defendant also maintains a sludge pond at the site.

Raw coal is brought to defendant's plant in trucks of independent contractors; the trucks approach from both directions on the highway, travel across the bridge, move onto defendant's property, and dump on the stockpile. As the pile builds in height and size, the trucks, carrying about 17 tons of coal, go "right on up the pile with it." The plaintiffs' observation that, at times, the stockpile "is a veritable mountain of coal and coal dust" is confirmed by an examination of the numerous photographs received in evidence depicting views from the ground and air. After dumping, the trucks, driving on the stockpile, travel down and back across the bridge to the highway.

The coal is next handled by highlifts that load it into a bin, or into a truck which places it into the bin. The coal then goes from the bin to the loader, through the rock picker, and onto a beltline. If the coal is washed, it goes into another loader. Sludge from the washing process is carried by defendant's tractor-trailer across the bridge to the sludge pond located just west of the bridge and south of the state road.

A double track of the Haysi Railroad runs parallel to the highway adjacent to defendant's facility between the plant and the creek. The railroad was operating before defendant commenced business. Coal is loaded from defendant's plant onto railroad cars at two sites west of the bridge.

According to plaintiffs' evidence, a huge amount of thick coal dust was generated continuously by defendant's facility during dry weather, from the time defendant began operating the plant to the time of trial. The dust was created, according to the record, by many factors all directly associated with defendant's facility.

For example, as trucks were driven to the stockpile, many overfilled with "graveyard heap[s]," some of the cargo spilled on the highway and bridge; as trucks were driven from the stockpile, dust, mud, and dirt were tracked from the pile and defendant's property onto the bridge and highway. This accumulation was stirred up and made airborne by other trucks using defendant's facility, as well as by public use of the bridge and highway.

Also, as the trucks were driven onto the stockpile, at a rate of 25 to 50 per day, and the load discharged, considerable dust was thrown into the air. When the coal was lifted by the highlifts, more coal dust was tossed into the atmosphere.

The evidence showed that as the dust scattered from the stockpile, the bridge, and the highway, wind blew the coal particles east and west along the creek, upon the plaintiffs' lands and homes. While the residents of the area experienced some collection of coal dust from highway and railroad use before 1975, testimony showed the amount of coal dust in the immediate area had increased by 75 to 95 percent after defendant began using its facility.

The constant invasion by coal dust and noise resulted in devaluation of the plaintiffs' realty, according to their testimony. In addition, the evidence showed they were materially disturbed in the use and enjoyment of their homes by the dust and noise. The effect was described in different ways.

Testifying about the period after establishment of defendant's facility, witnesses said that when the settled dust is touched, ...