Powell v. Superior Portland Cement, Inc., 28369.

• Decision Date: 01 October 1942
• Docket Number: 28369.
• Citation: 15 Wn.2d 14,129 P.2d 536
• Parties: POWELL v. SUPERIOR PORTLAND CEMENT, Inc.
• Court: Washington Supreme Court

129 P.2d 536

15 Wn.2d 14

POWELL v. SUPERIOR PORTLAND CEMENT, Inc.

No. 28369.

Supreme Court of Washington, En Banc.

October 1, 1942

Action by Guy Powell against Superior Portland Cement, Inc., to enjoin defendant from interfering with plaintiff's use and enjoyment of his premises, and to recover damages for injuries caused to plaintiff's premises by dust from defendant's plant. From a judgment denying equitable relief, but awarding plaintiff damages in the sum of $500 defendant appeals.

Judgment reversed and cause remanded with directions to dismiss the action.

JEFFERS J., dissenting.

Appeal from Superior Court, Whatcom County; Ralph O. Olson, judge.

Welts &amp Welts, of Mount Vernon, and Little & Leader, of Seattle, for appellant.

Ward & Barclay, of Sedro-Woolley, for respondent.

MILLARD, Justice.

This action was brought to enjoin defendant from interfering with plaintiff's use and enjoyment of his premises and to recover damages for injury caused to plaintiff's premises by dust from defendant's plant at Concrete, Washington. The cause was tried to the court which found that a substantial quantity of dust was blown from defendant's plant upon plaintiff's property in such quantity as to subject plaintiff to substantial inconvenience and discomfort; and that as a result of the deposit of dust from defendant's plant upon the property of plaintiff the latter was damaged in the amount of five hundred dollars. Plaintiff was denied the equitable relief for which he prayed but judgment was entered awarding him five hundred dollars for damages he had sustained. Defendant appealed.

Respondent who has resided in Concrete since 1907, acquired by purchase in 1934 the property which is involved in this action. That property consists of two lots of an aggregate area of six thousand square feet improved with a six-room house and garage thereon situated two and one-half city blocks northeast of the cement plant of appellant. The premises were occupied by respondent as his residence until August, 1938, when he removed therefrom and let same partially furnished.

Appellant's cement plant, which is located within the town of Concrete, commenced the manufacture of Portland cement in June, 1908. Prior to the location of the cement plant therein Concrete was a small community with a few logging camps and shingle mills. Many families moved to Concrete when the cement plant commenced operation; in fact, at least half of the residents of the town are directly dependent upon appellant's plant for their livelihood. Prior to the establishment of the plant there were practically no homes in Concrete. The school population has increased since the commencement of the operation of appellant's plant from forty students to more than three hundred at the present time. An examination of the record Before us clearly discloses that the continuance of Concrete as a town of any appreciable size is dependent upon the operation of the plant which employs about two hundred men. The main reason for the location of appellant's cement plant, which is a permanent one, in Concrete is the proximity of huge deposits of limestone. It is estimated that more than two hundred million tons of limestone are within the area at Concrete and the largest year's operation in thirty years is four hundred thousand tons. In the process of manufacturing cement a quantity of dust, consisting of fine limestone rock particles in various steps of burning, escapes from appellant's plant and is carried by the air currents and precipitated upon the surrounding territory. The dust, a certain portion of which escapes from the stacks, is created in the revolving cylinders of the kilns and is driven by forced draft into the stacks attached to the kilns. At this time appellant operates six kilns, each having its own stack. The escape of the dust from the stacks is not caused by any neglect on the part of appellant. The trial court stated that the preponderance of the evidence was that appellant has eliminated all possibility of the escape of dust from portions of its plant other than from the stacks, and has greatly reduced the amount of dust escaping from the stacks.

It appears that the installation of dust catching machinery, designated as the Cottrell system, would eliminated substantially all the stack dust but the cost of the installation of that system would be prohibitive and would necessitate the entire reconstruction of appellant's plant. It further appears that such installation and reconstruction of the plant would limit the use of the plant to the better grade of its limestone deposits, whereas its present method of manufacture utilizes the entire deposits as it is found at Concrete.

Counsel for appellant contend that as respondent purchased property in a manufacturing community he is not entitled to compensation because of dust inseparable from industrial activity in that community.

In Hardin v. Olympic Portland Cement Company, 89 Wash. 320, 154 P. 450, we held that plaintiff was entitled to recover for damages to his property from particles of cement carried by the prevailing winds from defendant's plant over and upon plaintiff's premises. In that case the record discloses that defendant was not engaged in manufacturing and selling cement in Whatcom county until nine years after plaintiff had continuously owned and farmed the land affected. We held the defendant was liable, although there was no showing of negligence in the manner of the operation of defendant's plant, on the theory that no one has a right to pursue a lawful business, if thereby he injures his neighbor, without compensating that neighbor for the damages actually sustained.

In Bartel v. Ridgefield Lumber Co., 131 Wash. 183, 229 P. 306, 37 A.L.R. 683, we followed Hardin v. Olympic Portland Cement Co., supra, and held that it is no defense to an action, like the case at bar, that a defendant is conducting its business in substantially the same manner, with substantially the same effect upon plaintiff's property long Before plaintiff acquired that property and lived thereon. As sustaining authority we cited Brede v. Minnesota Crushed Stone Co., 143 Minn. 374, 173 N.W. 805, 6 A.L.R. 1092, in which the supreme court of Minnesota held that the fact that some of the plaintiffs acquired their property after defendant began to operate its quarry was of no particular importance.

It is true that the position of respondent is amply supported by precedent authority; however, the presence or absence of precedent should not determine the question presented in the case at bar. While due deference should be paid to precedent, the question in determining whether to accept or reject the precedent is how far it accords with good sense or reason; that is, the law should not be confined to precedents, but consists in the reason of them as 'The reason of the law is the soul of the law.'

Respondent, who has resided in Concrete thirty-five years, did not acquire until 1934 the property which is involved in this action. He purchased the property with knowledge of conditions. That the right of action, if any, respondent's grantor may have had for damages to that property prior to 1934 did not pass to respondent grantee with conveyance of the property needs no citation of sustaining authority.

Appellant has practically made the community. It has invested a great deal of money in construction of its plant and has made provision for the maintenance of a necessary industry for many years to come. It has done everything that can be reasonably expected of it to reduce to a minimum the discomforts that are inseparable from such industrial activity. To require appellant to respond in damages for its continuance, is a step toward destruction of appellant's business. Respondent knew that living in the surroundings herein described necessarily entailed some discomfort. That burden he assumed when he acquired his property in a community the character of which had been established for many years.

It would serve no useful purpose to review the numerous cases from our own and other jurisdictions. The courts are not in accord on the question presented. Any opinion of this court which holds, or from which it may be inferred, that one who voluntarily purchases property in a manufacturing community may be compensated because of smoke, gases, dust or noise inseparable from industrial activity in that community and reasonably necessary or expectable in the conduct of lawful industrial operations therein is hereby overruled. The effect of a contrary holding would be to destroy or prohibit the continuance of an established and otherwise lawful business.

In the past we have not hesitated to reexamine our opinions and overrule same. We adopt the rule enunciated in the logical opinion in Ebur v. Alloy Metal Wire Co., 304 Pa. 177, 155 A. 280, 282. In that case, which in principle is indistinguishable from the case at bar, the court said:

'The courts have found it difficult to lay down any precise and inflexible rule by the application of which it can be determined that a plaintiff in a given case is entitled to relief by injunction against smoke, fumes, and noises emitted in the vicinity of his residence. It has been said that a 'fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case'. 46 C.J. 655. It has also been said: 'Whether the use is reasonable generally depends upon many and varied facts. No hard and fast rule controls the subject. A use that would be reasonable under one set of

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