Penn American Plate Glass Company v. Schwinn
| Decision Date | 28 May 1912 |
| Docket Number | 21,972 |
| Parties | Penn American Plate Glass Company v. Schwinn |
| Court | Indiana Supreme Court |
From Madison Circuit Court; Charles K. Bagot, Judge.
Action by Noah Schwinn against the Penn American Plate Glass Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Affirmed.
John W Lovett and G. B. Slaymaker, for appellant.
James A. May, for appellee.
Action by appellee against appellant, by a complaint in three paragraphs, for damages as for a nuisance. Appellant answered by eight paragraphs, the first a general denial. Demurrers were sustained to the second, third, fourth and eighth paragraphs of answer, which rulings are the errors here assigned. The further assignment, that the court erred in refusing to stay the cause until the costs in a former action between the parties were paid, is waived. On a reply of general denial, a trial was had, and a small amount assessed as damages.
The first paragraph of the complaint alleges that appellant, for more than six years prior to the bringing of the action, was a corporation, owning and operating a large factory, for the manufacture of plate glass, at the city of Alexandria Indiana; that in its business appellant used large quantities of water, sand and other materials procured from appellant's premises, or at places many miles distant from a stream known as Pipe creek; that the factory of appellant is located on the north bank of Pipe creek, a small nonnavigable, natural watercourse, with a constant flowing or living stream flowing between banks in a well-defined channel; that during the past six years appellant deposited many thousand tons of finely powdered sand into the channel of the creek, in such quantities that the channel of the stream was filled up and narrowed, and that the water of the stream, because of such deposits, carried the sand and other materials out upon the lands of appellee lying about four miles southwest of appellant's factory; that appellee owned eighty acres of farm and pasture lands, which, before the acts of appellant complained of, were good for agricultural and grazing purposes, but that the acts of appellant had rendered about ten acres of the land unfit for agricultural and grazing purposes, and had rendered the water of the stream unfit for the drink of either man or animal; that before appellant made such use of the creek appellee's lands were valuable for the purpose aforesaid, and the water also fit for the drink of man and animal; that appellant's acts also caused the waters of the creek frequently to overflow appellee's lands; that appellee's crop damage amounted to $ 500; that about six acres of timber lands were damaged; that appellant's acts made it impossible for appellee's stock to get into the stream to drink, and made it impossible for them to cross the stream; that appellant's acts further produced foul and disagreeable odors on appellee's real estate near his dwelling-house, near the creek; that the annual rental value of the premises during the last six years has been and is now $ 200, and that before appellant's acts, and without appellant's acts in the premises, the rental value of appellee's real estate would have been $ 500 a year. It is further alleged that appellee's real estate was practically ruined, and he demanded damages in the sum of $ 2,000.
The second and third paragraphs allege that the materials which appellant deposited in the stream were brought into appellant's factory from points many miles distant, and also that appellant's acts were done negligently, carelessly and wrongfully. Except in these particulars, the three paragraphs are identical.
The second paragraph of answer avers that appellant owns the land on both sides of Pipe creek, both above and below, and operates a large factory for the manufacture of plate glass in the west part of the city of Alexandria, Indiana, and on the north bank of a small stream known as "Pipe creek," and has the rights of a riparian owner in the stream; that appellant and its predecessors have been in possession of the factory thereat for the manufacture of plate glass for more than seventeen years; that appellant had expended more than $ 1,000,000 in building and improving its plant, and employs, when running at its full capacity, more than 600 men, and pays in wages $ 350,000 annually; that one of the processes in the manufacture of plate glass at appellant's factory is the grinding of the glass, and that to do said work it is necessary for appellant to use three carloads of sand each day; that appellant takes from Pipe creek and redischarges into it, carrying the sand in solution, 3,000,000 gallons of water daily; that it is necessary that said sand be discharged into said waters, and carried, by means thereof, through an iron pipe into said Pipe creek; that there is no means known to appellant, and no device or mechanism invented or discovered, and no means whatsoever, by which all the sand necessarily placed in said water can be separated therefrom; that appellant has endeavored to detain the sand and other materials which it places in the water, by constructing channels, basins and drains in the creek at the location of the factory, which do detain the major portion of the sand and materials which appellant deposits in the water; that there is no basin or other stream or outlet into or through which the water containing sand can be deposited, nor can appellant create artificial basins, channels or reservoirs so as to detain more of the sand and other materials which it discharges into the creek; that appellant has done every thing that it can do to prevent the flowage into Pipe creek of the sand and other materials that escape from the plant into the stream; that Pipe creek is a stream from six to thirty-six inches deep, and from ten to fifty feet wide, and is the natural and sole means of drainage from appellant's factory and lands and the basin thereabout, as well as from the city of Alexandria, a large manufacturing center, and the city, other factories and the community thereabout, all use Pipe creek as a natural means of drainage; that Pipe creek above appellant's factory flows through a sandy country, devoid of timber, and is peculiarly susceptible to rise and overflow, and bears down with it, to and past appellant's factory, large quantities of sand, which have come therein by natural and erosive processes; that when said stream is at its usual and normal stage, it carries down from appellant's factory the sand which appellant deposits in it, and leaves but a small deposit on the bed and banks of the creek.
It is further averred that appellee's lands are low lying, and susceptible to overflow, and are overflowed by Pipe creek many times during every year, and that the sand, which by natural processes has been carried by the waters of the creek, and not from appellant's factory, is carried over, and deposited on appellee's lands; that appellee's lands are depressed, and constitute a swale through which flood waters from Pipe creek flow; that appellee, by expending not to exceed $ 25, could construct a barrier on his lands which would divert the water from his lands, and cause it to remain in the channel.
Appellant further alleges that it uses no harmful, poisonous, noxious or malodorous materials at its factory that are discharged into the creek, and that, after the stream leaves appellant's factory, the water is wholesome and fit for the drink of both man and animal; that any harmful materials are neutralized absolutely at appellant's factory, and long before they could be carried to appellee's lands that appellant cannot operate its factory without discharging into said creek the quantities of water, sand and other materials which it now discharges therein, which are carried by the waters in invisible solution; that plate glass is a necessity of commerce; that it is not possible or practicable for appellant as its plant is now constructed, or as it might be constructed on its lands, or as it might be constructed elsewhere on said stream, nor is it possible or practicable to construct a plate glass factory of the kind and character of appellant's factory so as to operate it in any manner other than as it is now operated, and that appellant operates its factory in every respect as such factories are usually operated, and exercises every care and diligence possible in the conduct of its plant, and that it is necessary and indispensable to the operation of the factory that it make such discharge into Pipe creek, and it cannot so construct its factory on its lands or elsewhere on said stream without discharging such materials into said stream; that it is not possible or practicable to carry on the industry of plate glass manufacture elsewhere than upon a flowing stream, nor otherwise than by discharging therein the quantities of sand and other materials which appellant discharges into the same; that appellant operates its plant in every respect as well-regulated and properly-conducted plants of its nature are everywhere conducted, and throughout the United States it is necessary for plate glass manufactories to locate, and they are located, and it is the custom of such industries to locate, on the banks of flowing streams, and to discharge therein sand and such other materials as appellant discharges into Pipe creek, and has discharged into the same for many years last past; that appellant and its predecessors have operated said plant for more than seventeen years in the manner in which the plant is now operated, without objection or notice from appellee or any one else that the operation of its plant in such...
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