Payne & Butler v. Providence Gas Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: DUBOIS, C. J.
• Citation: Payne & Butler v. Providence Gas Co., 31 R.I. 295, 77 A. 145 (R.I. 1910)
• Decision Date: 16 July 1910
• Parties: PAYNE & BUTLER v. PROVIDENCE GAS CO.

77 A. 145

31 R.I. 295

PAYNE & BUTLER

v. PROVIDENCE GAS CO.

Supreme Court of Rhode Island.

July 16, 1910.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Payne & Butler against the Providence Gas Company. Verdict for plaintiff, and defendant brings exceptions and constitutional questions. Exceptions overruled, questions answered, and cause remitted.

James C. Collins, Jr., and Percy W. Gardner, for plaintiff.

Edwards & Angell (Walter F. Angell, Seeber Edwards, and Francis B. Keeney, of counsel), for defendant.

DUBOIS, C. J. This is an action of trespass on the case brought by the plaintiffs against the defendant to recover damages for injury to their oysters and quahaugs and to their grounds, and for the expense of cleaning the same caused and made necessary by the deposit in the Providence river of tar, oils, and other deleterious substances manufactured by the defendant.

The plaintiffs' declaration is in five counts, whereof the first count reads as follows: "For that on, to wit, the 1st day of October, 1903, and on divers other days and times between that day and the commencement of this suit, the defendant corporation was located and engaged in the business of the manufacture of illuminating gas and kindred products in the city of Providence having two gas works or plants located on the west bank of the Providence river. That in the process of the manufacture of said gas and kindred products large quantities of coal, petroleum, oils, and other materials were used; that from said manufacture of gas and kindred products large quantities of coal tar, water gas tar, oils, and other substances which are the products of and the refuse from the manufacture of illuminating gas and kindred products, were produced. That on, to wit, the days and times aforesaid, said defendant discharged and suffered and allowed to escape from its premises to and into said Providence river large quantities of said coal tar, water gas tar, oils, and other substances. That said coal tar, water gas tar, oils, and other substances floated in and upon the waters of said Providence river and were carried by the currents and tides in said Providence river down said river and were deposited in large quantities in the waters and on the bottom of said river and of the upper part of Narragansett Bay into which said river empties. That said coal tar, water gas tar, oils, and other substances aforesaid are of a nature very injurious and poisonous to the healthy growth of all kinds of shellfish which grow in said waters and with which they come in contact. That the plaintiffs on, to wit, the 1st day of October, 1903, and from that time to the time of bringing the suit, were the holders and occupants of a large acreage of ground located under the waters of said Providence river and the upper part of Narragansett Bay. That said ground consisted of, to wit, three lots or parcels of land, the first of which is located on, to wit, the easterly portion of Great Bed, to wit, westerly and northerly of the Beacon, so called, the second lying northerly of Sabin's Point and easterly of the channel, the third southerly of Sabin's Point and northerly of Crescent Park Wharf and easterly of the channel, being in area in the aggregate amount of, to wit, 28 acres. That said land was held by virtue of valid leases and granted by the state of Rhode Island to them for the purpose of growing shellfish, and which were in full force and effect throughout all said times. That said ground during the time alleged was used and occupied by the plaintiffs, being properly and sufficiently staked, marked, designated, and identified by said plaintiffs. That upon said ground the plaintiffs at the time aforesaid had a large quantity of systers, quahaugs, and other shellfish upon said ground occupied, as aforesaid, which were the property of the plaintiff, being in the amount of, to wit, 40,000 bushels. That they were engaged in the business of selling shellfish and had a large trade and business which they supplied from the shellfish upon said grounds. That said shellfish were ready for the market and were being grown for the market, and said shellfish and trade were of great value. That thereafter on said days and on the times heretofore alleged said coal tar, water gas tar, oils, and other substances discharged, suffered, and allowed to escape into the Providence river by the defendant corporation, as aforesaid, were carried down said river by said currents and tides and deposited in and upon said grounds used and occupied by said plaintiffs as aforesaid and in and upon said oysters, quahaugs, and other shellfish deposited on the grounds described as aforesaid, and greatly injured and destroyed the same, impairing their growth and rendering them unfit for market. That said plaintiffs were at said several times engaged in the business of selling shellfish and were dependent upon the shellfish upon those grounds to supply their trade and customers —whereby and by means thereof said oysters, quahaugs, and other shellfish of the said plaintiffs were killed and destroyed, and covered by the said coal tar, water gas tar, oils, and other substances and the like, and greatly hindered in growth and value, and said plaintiffs were greatly hindered and prevented from taking, selling, and marketing the same and were deprived of all the profits and benefits which would have arisen and accrued to them therefor, whereby and by means whereof said plaintiffs have suffered great loss and been greatly injured."

In the second count the cause of action is set out as follows: "The defendant failed to use due care and to take the necessary steps to prevent" the discharge and deposit of said substances in the Providence river. The plaintiffs, in this count, rely upon the leases of oyster grounds which are set forth with considerable particularity, and then allege injury to their shellfish growing upon the same.

The third count sets forth its cause of action in these terms: "That said defendant deposited and stored said coal tar, water gas tar, oils, and other substances which are the products of and refuse from the manufacture of gas in and upon its premises, and its said plants near to and adjacent to said Providence river. That it failed to properly care for, control, and guard said coal tar, water gas tar, and other substances, so as to keep the same upon its premises and to prevent their discharge and escape into the waters of the Providence river; but, on the contrary, on said days and times aforesaid it discharged the same and suffered, permitted, and allowed the same to escape from its premises and to run into the waters of said Providence river." This count likewise declares upon the leases from the state and alleges injury to their shellfish from these oils, water gas, and coal tar.

The fourth count differs in one material respect from the foregoing counts in not declaring upon the leases of oyster beds as the basis of recovery. The allegation of property in the shellfish is made to depend on possession and is set out as follows: "That the plaintiffs on, to wit, the 1st day of October, 1903, and throughout the period from that time until the commencement of this suit, were the sole holders and occupants of a large acreage of ground of said Providence river and the upper part of Narragansett Bay covered by the tide waters of said river and bay. That said ground consisted of, to wit, three lots or parcels. (Here follows specific designation.) That said ground when taken and accepted by them did not have other shellfish growing upon it, but was free from the same. That said ground at the times alleged was used and occupied by the plaintiffs and was properly and sufficiently staked, marked, designated, and identified by said plaintiff, so as to clearly indicate the ground to which they claimed the use and possession for the planting and growing of oysters, quahaugs, and other shellfish and the gathering of the sets of oysters, quahaugs, and other shellfish. That upon said ground occupied, as aforesaid, the plaintiffs at the said several times had a large quantity of oysters, quahaugs, and other shellfish, which were the property of the plaintiff, being in the aggregate amount of, to wit, 40,000 bushels. * * *"

The fifth count likewise declares upon a possessory claim, irrespective of any leases from the state. The wrongful act, charged against the defendant, is set out in the same language as in the first count.

The defendant pleaded the general issue to each of the five counts, and also pleaded specially that the plaintiffs were not the owners of said oysters, quahaugs, and other shellfish, thereby raising the question of the validity, of the leases declared upon in the first, second, and third counts. The plea to the fourth count denies that the plaintiffs were the sole holders and occupants of the ground described in said count, and also denies that said ground was free from all shellfish. The plaintiffs' replications were formal, and on the issue thus joined the case proceeded to trial. The verdict of the jury was in favor of the plaintiffs for $17,280. During the course of the trial numerous exceptions to the introduction of testimony, to the charge of the court to the jury, and to his refusal to charge as requested, were taken by the defendant, and two constitutional questions were raised. After the rendition of the verdict, the defendant filed its motion for a new trial which was denied. The defendant has brought the constitutional questions to this court by certification from the judge presiding at the trial as well as by bill of exceptions. The constitutional questions so certified are as follows:

"First, is said chapter 1574 in conflict with section 10 of article 1 of the Constitution of Rhode Island in so far as by validating said leases it subjects the defendant to liabilities to which the defendant was not subject at...