Patterson v. Peabody Coal Co., 54-M-3

• Decision Date: 01 October 1954
• Docket Number: No. 54-M-3,54-M-3
• Citation: 3 Ill.App.2d 311,122 N.E.2d 48
• Parties: Walter PATTERSON, Plaintiff and Appellee, v. PEABODY COAL COMPANY, a Corporation, Defendant and Appellant.
• Court: United States Appellate Court of Illinois

Page 48

122 N.E.2d 48

3 Ill.App.2d 311

Walter PATTERSON, Plaintiff and Appellee, v. PEABODY COAL COMPANY, a Corporation, Defendant and Appellant.

No. 54-M-3.

Appellate Court of Illinois, Fourth District.

Oct. 1, 1954.

DeWitt Twente, Harrisburg, for appellant.

Rumsey & Dennis, Harrisburg, for appellee.

BARDENS, Justice.

This case presents the perplexing problems involved in a claim for damages based upon an alleged private nuisance. Since the factual situation is necessary to an understanding of principles involved we will state it in some detail.

Suit was filed June 16, 1951. Plaintiff's land is the surface of the Northwest Quarter of the Southeast Quarter of Section 27, Township 8 South, Range 5 East of the Third Principal Meridian, except a railroad right of way of 100 feet running diagonally through the premises. The ownership of coal had been separated from that of the surface in 1905 and 1906. On the property plaintiff owns a dwelling house, barn and other small outbuildings. He has lived there since 1912 and acquired a deed to it in 1929.

Defendant owns a coal mine, earlier known as 'Harco' Mine, and now as Peabody Mine No. 47 situated about 1/4 mile southwest of plaintiff's land. Defendant began operating a coal washer in 1937 and a coal drier in February 1949. The mine itself was closed in April 1951 but the washer and drier continued to operate, coal being brought in from other mines of defendant.

During the five years preceding the filing of suit, plaintiff, his wife and his daughter lived upon his land. It was used generally for farming purposes. The land was not of the best for farming and plaintiff had permitted the improvements to deteriorate. In fact none of them had ever been painted by him. There was a cistern at a corner of the porch and a walled up stream or shallow well about 150 feet north of the house.

Plaintiff complained of gas, smoke and fumes that came from burning gob piles and dust from the stack of the coal drier. Defendant's witnesses explained that the washer removes impurities known as 'gob' from the coal, which material is trucked to the gob pile. They testified to the care used by defendant in piling and featheredging gob in the proper manner so as to eliminate spontaneous combustion as far as possible and the efforts put forth to extinguish fires in the piles when they occurred. In the washing process the heavier materials sink to the bottom and lighter materials, consisting of fine coal or slurry, float on top and are carried through a pipe to a settling pond where the water drains off. It is then trucked to the drier, conducted into a Luver conveyor which pulls the wet material up to the top and through the drier stack. In the course of being conveyed the hot air and gases from the furnace push through the coal, drying it. During this process coal dust is raised through the stack and carried into the air.

Plaintiff and his witnesses (including his wife and daughter) testified that the gas, fumes or smoke from the gob piles had blown over his premises since 1946; that before erection of the drier the dust was not too bad, but that since 1949, when the drier began operation, soot and dust have come over on him, carried by the prevailing southwest winds, for hours and days at a time; that the land gets black, the fields and crops get black and so does a person working in the fields or garden; that dust gets inside the house, in food and bed clothing; garden stuff sometimes is not fit to eat; it affected his nostrils and throat; sometimes on hot summer nights it was necessary to sleep with windows closed; you couldn't keep the house clean; in drying laundry at times it got covered with black soot; water in the cistern (which drains from the roof) was not fit to drink; any water or milk left in open pails or buckets would get soot on it.

Defendant's testimony proved that the neighborhood was a mining community. At one time 1,000 miners worked there and about 75 houses were erected and occupied. Grocery and other stores, restaurants, picture theatres, pool rooms, a bank, churches and school were present and used. Defendant's witnesses also detailed the operations of the washer and drier and proved that the methods used in treating the coal were the approved ones in the industry and met the recognized standards.

Defendant did not deny that dust comes out of the drier stack in abundance at various times. The drier is operated six days a week and 24 hours a day.

Plaintiff's complaint was bottomed on loss of value of comforts and conveniences only. He alleged defendant had a duty to protect him against said grievances and it failed to do so and that plaintiff was free from contributory negligence. Defendant's answer denied all allegations. The jury awarded plaintiff damages in the sum of $5,000 and judgment was entered on the verdict.

Defendant contends that the lower court should have directed a verdict because (1) the case was based and tried on a negligence theory and there is no evidence of negligence of defendant or (2) if plaintiff's suit is considered based on a nuisance theory, there is no evidence sufficient to sustain recovery for nuisance. In the alternative defendant contends it is entitled to a new trial for error in instructions and in rulings on evidence and for improper argument and conduct of counsel and for excessive damages.

It would serve no useful purpose for us to review the authorities on the subject of nuisance. These were thoroughly examined by this court and the Supreme Court in the case of Gardner v. International Shoe Co., 319 Ill.App. 416, 49 N.E.2d 328, and 386 Ill. 418, 54 N.E.2d 482. The Supreme Court in its opinion pointed out the lack of unanimity in the cases and our research leads us to the same conclusion. In view of the changing conditions in the state and nation this result was inevitable. The earliest cases proceeded upon the theory that an owner of property was entitled to pure and unadulterated air over his property. As we became more industrial and less pioneering and agricultural, courts were forced to recognize that industry could never develop or even live if exceptions were not made in the original hard and fast rule. The law thus developed that if industrial plants were located in...