Olson v. Armour & Company, a Corp.

• Court: North Dakota Supreme Court
• Writing for the Court: BURR
• Citation: Olson v. Armour & Company, a Corp., 280 N.W. 200, 68 N.D. 272 (N.D. 1938)
• Decision Date: 29 March 1938
• Docket Number: 6518

280 N.W. 200

68 N.D. 272

AXEL OLSON, Respondent, v. ARMOUR & COMPANY, a Corporation, Appellant

No. 6518

Supreme Court of North Dakota

March 29, 1938

Appeal from District Court, Cass County; Daniel B. Holt, Judge.

Action for damage to land occasioned by pollution of stream by Axel Olson against Armour & Co. Judgment for plaintiff in the amount of $2,000, and defendant appeals.

Affirmed.

Syllabus by the Court.

1. Specifications of error not argued in appellant's brief are deemed abandoned and are not considered on the appeal.

2. In this case, where the sole issue was the amount of damages to be allowed the plaintiff because of the pollution of a stream by appellant, the record is examined and it is held for reasons set forth in the opinion the rulings on the admission of testimony are held nonprejudicial.

Fuller & Powers, for appellant.

Proof of defendant's knowledge of a nuisance caused by its acts, and of warnings given defendant, or continuation of nuisance after a verdict of jury has established the wrong are sufficient to show that the acts of defendant are wilful, and sufficient to support the recovery of punitive damages. See notes to Yazoo & M.R. Co. v. Sanders, 3 L.R.A. 1119, 1120.

Malice, to support recovery of exemplary damages, may be implied or presumed. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42.

But if malice or oppressive conduct is not specifically alleged, then the facts, in respect to defendant's conduct, must be so alleged as to show the implied malice. Thompson v. Shanley, 93 Mont. 235, 17 P.2d 1085, 1900.

Goodwin T. Westlund and Conmy & Conmy, for respondent.

Where the plaintiff has the right to show the conditions under which an instrument was signed, the fact that incidentally thereto damage may accrue to the defendant's case does not deprive her of that right. Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 882; Kvello v. Taylor, 5 N.D. 76, 63 N.W. 889.

Where the pollution of a stream does not constitute a public nuisance the right so to pollute may be acquired as against a riparian owner by prescription. 20 R.C.L. 499.

Where, however, the pollution of a stream does not constitute a public nuisance, it is generally held that the right so to pollute may be acquired by prescription as against a riparian owner to a greater extent than is permissible of common right. 27 R.C.L. 1221; Dangelo v. McLean Fire Brick Co. 287 F. 14; 21 Am. & Eng. Enc. Law, 2d ed. pp. 733, 734; Charnley v. Water Power Co. 109 Wis. 563, 85 N.W. 507, 53 L.R.A. 895; Felton v. Wedthoff, 151 N.W. 731; Marble Co. v. Gaslight Co. 128 Mo.App. 96, 106 S.W. 594; Skinner v. Slater, 141 S.W. 734.

If it is not established by the evidence that the defendant knew or ought to have known that the injury would result from his conduct, the finding on the question of liability will be in his favor. Noyes v. Carr, 228 Mass. 339, 117 N.E. 350, L.R.A.1918A, 954; Moulton v. Fargo, 39 N.D. 502, 167 N.W. 717, L.R.A.1918D, 1108.

In an action against one who merely maintains a nuisance, but who has not created it, it is necessasry to allege that he was given notice of the nuisance or had knowledge of its existence; and it has been held that the complaint must allege either that defendant created the nuisance or that he had knowledge thereof. 46 C.J. 807.

Where a railroad company created a nuisance by the manner of the construction of its roadbed, the successor of that company is not liable for the erection of the nuisance, but only for its continuance after notice. Graves v. St. Louis, M. & S.E.R. Co. 133 Mo.App. 91, 112 S.W. 736; Daniels v. St. Louis & S.F.R. Co. 36 Okla. 421, 128 P. 1089, 50 L.R.A.(N.S.) 929; 17 Am. Dig. 2d ed. 620, 621; Fuller v. Andrew, 119 N.E. 695; 20 R.C.L. 492, 493.

One not originally responsible for the erection of a nuisance is not liable for its continuance, in the absence of notice to abate. Gleason v. Kirksville, 136 Mo.App. 521, 118 S.W. 120.

Collateral proof of knowledge, intention, etc., must be limited within such a period that it may naturally be seen to throw light as to the intent with which the act under investigation was committed. The question of time during which other acts may be proven seems to be largely within the trial court's discretion. 10 R.C.L. 939; Gram v. N.P.R. Co. 1 N.D. 260, 46 N.W. 972; Collard v. Fried, 41 N.D. 242, 170 N.W. 525.

A verdict based on clear and convincing evidence will not be vacated for harmless error. Carr v. Neva, 38 N.D. 158, 164 N.W. 729.

Assignments of error based upon rulings in the admission and exclusion of testimony will not be sustained, where from the whole record it is manifest that no prejudicial error was committed. Willoughby v. Smith, 26 N.D. 209, 144 N.W. 79; Vidger Co. v. G.N.R. Co. 15 N.D. 501, 107 N.W. 1083; Wells v. Lisbon, 21 N.D. 34, 128 N.W. 308.

Burr, J. Christianson, Ch. J., and Nuessle, J., concur. Morris, J. (dissenting). Sathre, J., concurs in the views expressed by Judge Morris.

OPINION

BURR

The plaintiff brings this action to recover damages which he claims he sustained from March 5, 1934 to the time of trial in 1937 as lessee of a farm located on the banks of the Sheyenne River, and alleges that the defendant in operating a slaughtering establishment and packing plant along the river so polluted the stream that he was unable to use the water and his "use and enjoyment of said farm and his leasehold to said farm has been materially damaged and interfered with because of the pollution and fouling of the waters by defendant, and the foul and noxious odors created by said pollution, all to his damage since December 1, 1933, to date, in the sum of Three Thousand ($ 3,000.00) Dollars."

The answer, with its amendment, states that, while the defendant company had a right to make a reasonable use of the river in the operation of its packing plant so long as it did not cause material injury to others, nevertheless, the defendant "admits for the purpose of this trial that defendant has used the stream for the purpose of releasing packing house waste therein to an extent or degree greater than defendant reasonably might use the same, thereby contributing to the pollution of the water, and that defendant is liable to the plaintiff for such real and actual injury, if any, as directly may have resulted from the acts of the defendant causing such pollution."

When the plaintiff rested at the close of his case the defendant stated to the court: "In our pleading we concede that our use of the stream has passed beyond the point where we lawfully could use it, and that we are liable, that we should pay the actual, the real damage, in a properly adjusted measure, for which we are responsible to this plaintiff. So that it leaves only the question of the computation of what that just measure of damages is. And under the conditions as they are in the case, we consider that no proof on that subject will illuminate or aid the jury. For that reason, the defendant also rests."

The case therefore was submitted to the jury upon the testimony furnished by the plaintiff; a verdict was returned in favor of the plaintiff for $ 2000.00; judgment was entered thereon and the defendant moved for a new trial, specifying as grounds certain errors in law occurring at the trial and excepted to by the defendant and the insufficiency of the evidence to sustain the verdict. The court denied this motion and defendant appeals from the judgment and from the order overruling the motion for a new trial.

The appellant, in its notice of appeal, says the "said appeal will be based upon a statement or specification of errors at law and insufficiency of evidence, a draft of which is hereto attached and made a part of this notice."

These specifications divide themselves into two classes, one dealing with portions of the instructions to the jury and the other with the insufficiency of the evidence. With reference to the latter the appellant says that the "evidence is insufficient to support the verdict and decision in this:

"That there is no showing that plaintiff by reason of his right of occupancy acquired an interest in the waters of the stream sufficient to support recovery of damages for the acts of defendant, in wrongfully using or occupying the same; and no proof of what would have been the condition, or quality, or fitness of water at time from which damages are claimed, if defendant were not then releasing its waste into the stream."

At the same time there were three other similar cases pending and tried -- Weir v. Armour & Co. post, 281, 280 N.W. 204; Paseka v. Armour & Co. post, 283, 280 N.W. 205, and Haugen v. Armour & Co. post, 282, 280 N.W. 204 -- wherein the plaintiffs recovered damages for pollution of this stream; and the four appeals are on the same identical grounds.

Appellant divides his "Statement and Brief" in this Olson Case into two parts. Part I sets forth the pleadings, the result, the specifications of error, and the nature of the appeal. The same treatment is afforded the companion cases.

Part II in this case is concerned with the defendant's argument, and this argument applies to the companion cases without repetition. As appellant says, the Olson Case is typical of the four cases.

In the alleged errors of law occurring at the trial two deal with portions of the instructions to the jury said to be erroneous. The portions are set forth in the specifications of error; but nowhere are these specifications argued in the appellant's brief, and, therefore, they are deemed abandoned and will not be considered on this appeal. Foster County Implement Co. v. Smith, 17 N.D. 178 115 N.W. 663; Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531; Kennedy v. State Bank, 22 N.D. 69, 132 N.W. 657; Starke v. Wannemacher, 32 N.D. 617, ...