Pottock v. Continental Can Co.
| Decision Date | 09 March 1965 |
| Docket Number | No. 1882,1882 |
| Citation | 42 Del.Ch. 296,210 A.2d 295 |
| Parties | Louis POTTOCK, trading as Pottock's Junk Shop, Plaintiff, v. CONTINENTAL CAN CO., Inc., a New York Corporation, Defendant. Civ. A. |
| Court | Court of Chancery of Delaware |
Samuel R. Russell of Bayard, Brill, Russell & Handelman, Wilmington, for plaintiff.
Frank J. Miller, of Walker, Miller & Wakefield, Wilmington, for defendant.
SEITZ, Chancellor:
Plaintiff brought this action against the corporate defendant to enjoin an alleged nuisance and for damages. By way of answer defendant has set up certain affirmative defenses. This opinion is concerned with two of them, namely, (1) plaintiff has failed to exhaust his administrative remedies and (2) plaintiff has an adequate remedy at law. If either defense has merit the scheduled trial on the nuisance issue should not be held. In consequence, the court, with agreement of counsel, has decided to determine now whether either of these defenses has legal merit.
Plaintiff operates a junk yard, which has larger commercial implications than one might infer from the term itself. Defendant operates an adjacent manufacturing plant which ejects soot into the air from its smokestack. Plaintiff claims that this soot comes to rest, in part, on plaintiff's property and constitutes a nuisance which has caused him special injury. Defendant is thus causing both a public and a private nuisance, if plaintiff is correct.
Concededly both of the affirmative defenses here involved are based on the existence of the Air Pollution Authority Act ('Authority'), 16 Del.C. § 1601 et seq. In view of the court's disposition of the matter these defenses need not be treated separately except to note that we are not, strictly speaking dealing with the doctrine of exhaustion of administrative remedies.
I delineate some of the provisions of the Act creating the Authority for background purposes. The Authority is authorized to consider complaints, make investigations and hold hearings in order to enforce compliance with the laws of this State relating to the pollution of the air. The Act recites that no person shall discharge into the air solids, liquids, or gases causing such injury to human, plant or animal life, or to property as constitutes a public nuisance. It provides for administrative hearings. It also provides that a violation of the Authority's rules and orders constitutes a criminal offense. It further authorizes the Authority to institute actions at law or in equity to abate public nuisances created by pollution of the air. Any person whose interest is substantially affected by the action of the Authority may appeal the Authority's decision to the Superior Court which shall hear and determine the matter 'as a suit in law and equity'.
The basic issue posed by defendant's defenses here considered is whether the Act, to the extent of its subject matter, precludes the exercise of jurisdiction by this court with respect thereto.
Our Supreme Court in duPont v. duPont, 32 Del.Ch. 413, 85 A.2d 724, construed our Constitution as prohibiting the legislature from depriving this court of its so-called traditional jurisdiction (that existing in 1792) unless an equivalent remedy was provided and also unless that remedy was expressly or by necessary implication made exclusive. The parties tactily concede that the granting of injunctive relief against nuisances was part of equity's traditional jurisdiction. I shall assume, without deciding, that the administrative remedy with its appeal provision fulfills the 'equivalent remedy' requirement of our Constitution, as to the nuisance aspect of this...
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Eastern Shore Natural Gas Co. v. Stauffer Chemical Co.
...the agency, while at the same time avoiding any suggestion of abdication of the jurisdiction of the court. Compare Pottock v. Continental Can Co., Del.Ch., 210 A.2d 295 (1965). The doctrine of primary administrative jurisdiction is to be distinguished from the rule of exhaustion of administ......
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Delaware Bankers Ass'n v. Division of Revenue of Dept. of Finance
...no such powers have previously existed. Thus, cases such as duPont v. duPont, 32 Del.Ch. 413, 85 A.2d 724, and Pottock v. Continental Can Co., 42 Del.Ch. 296, 210 A.2d 295 are not Finally, there being no showing of present independent, historic equitable jurisdiction of plaintiffs' claims, ......
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Eastern Shore Natural Gas Co. v. Stauffer Chemical Co.
...this Court of jurisdiction over plaintiff's claim, this not being a case of alleged state primary jurisdiction, Pottock v. Continental Can Co., Inc., 42 Del.Ch. 296, 210 A.2d 295. Defendant argues that by reason of the provisions of the Natural Gas Act 1 primary jurisdiction over the matter......
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Webb v. Diamond State Tel. Co.
...carrying on of illegal gambling. However, in the Tollin case the constitutional considerations, later dealt with in Pottock v. Continental Can Co. (Del.Ch.), 210 A.2d 295, were not raised by counsel and were not considered by the Court. In the Pottock case, however, such issue was vigorousl......