Riblet v. Spokane-Portland Cement Co.
| Decision Date | 02 October 1952 |
| Docket Number | No. 31919,SPOKANE-PORTLAND,31919 |
| Citation | 41 Wn.2d 249,248 P.2d 380 |
| Parties | RIBLET et ux. v.CEMENT CO. |
| Court | Washington Supreme Court |
A. O. Colburn, Harvey W. Clarke, Spokane, for appellants.
Keith, Winston, MacGillivray & Repsold, Spokane, Witherspoon, Witherspoon & Kelley, Spokane, for respondent.
In this action plaintiffs, Mr. and Mrs. Riblet, seek to recover for damages to their residential property, caused by cement dust cast thereupon as a result of the operation of the cement manufacturing plant of defendant, Spokane-Portland Cement Company, a corporation. After both sides had presented their evidence, the trial court (sitting without a jury) granted a motion by the defendant for dismissal on the ground that the evidence was insufficient to support a cause of action, considering the decision in Powell v. Superior Portland Cement, Inc., 15 Wash.2d 14, 129 P.2d 536. Plaintiffs have appealed.
Hereinafter, in some detail, we shall discuss the following questions:
1. What is a nuisance?
2. Are the facts in the case at bar and those in the Powell case, supra, identical or sufficiently similar that the Powell decision is controlling (as to whether the evidence in the case at bar supports a cause of action relative to maintenance of a nuisance)?
3. Is the defendant cement company, by its acts or conduct, estopped from asserting a defense based upon the applicable statute of limitations?
4. Is the two-year statute of limitations, Rem.Rev.Stat. § 165, RCW 4.16.130, or the three-year statute of limitations, Rem.Rev.Stat. (Sup.) §§ 159(1) and 159(3), RCW 4.16.080(1) and (3), applicable?
Briefly stated, we think that, on its facts, the Powell case must be distinguished, and that it is not controlling in the instant case. Furthermore, we believe that the cement company is not estopped to assert a statute of limitations defense, and that the two-year statute of limitations, Rem.Rev.Stat. § 165, supra, is applicable.
Consideration of this appeal requires a rather full outline of the facts and circumstances involved. In 1910, the cement company established a plant at Irvin, Washington, in the Spokane Valley, about eleven miles east of Spokane. The distance from any densely populated area and the matter of rail accessibility, among other things, were considered in locating the plant. At the time, there were a few homes in the general locality, but for the most part it was a vacant and unpopulated area. Cement production commenced in 1913, continuing to date in varying, but generally increasing, annual production amounts.
In 1924, Mr. and Mrs. Riblet purchased a tract of about ninety acres, located on top of a rock cliff some three thousand feet northwest across the Spokane River from the cement plant. The Riblet's tract is generally about four or five hundred feet higher in elevation than the cement plant. From the Riblet property there is an impressive view of the valley below. In 1925, the Riblets commenced construction of a home and extensive improvements of the nearby grounds. In the next five years or so they built, among other things, a vista house, a garage, a swimming pool, a croquet court which could be flooded in the winter for use as a skating rink, and an outdoor checker board with giant-sized checkers. Mr. Riblet, who was an official of a tramway construction company and an inventor, also built an aerial tramway from his property to a point across the Spokane River. The Riblets claim that the house and grounds were the culmination of their dreams and that, at the time built, it cost approximately fifty thousand dollars.
Mr. Riblet had worked at Metaline Falls, building tramways for a cement company. He was aware of the dust problems usually accompanying the operation of cement manufacturing plants. It is not clear from the evidence whether his work and experience at Metaline Falls was before or after beginning the construction of the Riblet residence. He testified upon cross-examination that on occasions after purchasing the land, but before starting construction, he had observed smoke and dust coming from the stack at the plant and, from his past experience, knew of a possible dust problem. However, he claimed it was his impression that the production capacity of the plant was only around two hundred barrels day. When questioned as to the source of this belief, it appeared he had made no inquiry from the plant officials; he stated that this particular knowledge was 'public knowledge.' The production capacity at the time was approximately fifteen hundred barrels a day. Respondent stated that 215,000 barrels was the average annual production between the years 1913 and 1935. Allowing for the possibility that the plant operated only five or six days a week, the actual daily production for the above period, based on the above figures, would average somewhere between 589 and 811 barrels. In any event, Mr. Ribert claimed that, because of the prevailing winds (which should have carried any dust away from his property), and because of the supposedly limited production of cement by the company, initially, and for a long time thereafter, he did not believe the dust problem would be troublesome to any serious extent.
The evidence is conflicting as to when the cement dust first became a serious problem.
The company contends that the dust problem was apparent at all times; that the Riblets must have voluntarily purchased the property with knowledge of it, and should not now be heard to complain. The Riblets maintain that there was no acute dust problem until about 1939, or thereafter. Cross-examination of Mr. Riblet relative to photographic exhibit 13, taken about 1935, suggests that there was some dust deposited on his property as early as 1935. It is his contention that a significant increase in the production of cement by the company caused the dust problem.
The precipitation of the dust results in a fine encrustation of cement on building exteriors and the landscape generally. Growth of shrubbery and plants was made difficult if not impossible under such conditions. When the encrustation was removed from building exteriors, the paint came off with it. The dust seeped into the interior of the buildings. It made housecleaning difficult and required windows to be kept shut. It settled to the bottom of the swimming pool, and made it too dangerous for use. The original color of tile roofing was transformed into a dull gray. Automobiles, left outside, were soon covered with a fine dust, almost imperceptible, but quite apparent when one ran his finger across the surface.
The Riblets contend that the dust made their home practically useless except as a shelter from the elements. The cement company contends that the Riblets have had full use of their property and will continue to have full use of it, now that in effective dust-control program is in operation.
The Riblets assert that the dust-control program, inaugurated by the company, afforded no relief until 1950, when, for the first time, something was done about the smoke or dust stack.
A letter written on October 16, 1939, by the Riblets is the first record evidence of any protest from them to the company. This letter stated that the dust problem had 'now become unbearable and cannot be tolerated.' The company replied on October 25, 1939, stating that the matter would be submitted to its board of directors at their next meeting, and this apparently was done. No further action was taken by the Riblets in 1939. Apparently they contemplated a lawsuit in 1941 or 1942, but were advised by an attorney friend that cement production was necessary for the war effort, and that it would be unpatriotic for them to sue the company during the war years. Several years passed. On October 2, 1947, the Riblets sent an invoice for forty thousand dollars for 'irreparable damages to my property by uncontrolled cement dust from your plant at Irvin.' The company made no reply. The Riblets renewed their claim for damages by a letter from their attorneys dated January 14, 1949. There was no immediate followup until the present suit was instituted on May 22, 1950.
A demurrer by the cement company to the Riblets' amended complaint was overruled, and a motion to make more definite and certain was denied. Judge Kelly, on overruling this demurrer, felt that the Powell case was distinguishable from the case at bar. However, at the trial of the lawsuit on its merits, Judge Edgerton concluded to the contrary, that the Powell case was controlling as to the case at bar. He granted the cement company's motion to dismiss on the ground, as pointed out above, that the evidence was insufficient to support a cause of action.
Our basic point of inquiry relates to the general theory of the law of nuisance. This appears primarily to be based upon generally accepted ideas of right, equity and justice. The thought is inherent that not even a fee-simple owner has a totality of rights in and with respect to his real property. Insofar as the law of nuisance is concerned, rights as to the usage of land are relative. The general legal principle to be inferred from court action in nuisance cases is that one landowner will not be permitted to use his land so unreasonably as to interfere unreasonably with another landowner's use and enjoyment of his land. The crux of the matter appears to be reasonableness. Admittedly, the term is a flexible one. It has many shades and varieties of meaning. In a nuisance case the fundamental inquiry always appears to be whether the use of certain land can be consisdered as reasonable in relation to all the facts and surrounding circumstances. Application of the doctrine of nuisance requires a balancing of rights, interests and convenience. The rule in the Powell case, consequently, is a rule dependent upon the facts and circumstances unique to that case. Whether that decision with regard to an alleged nuisance or decisions in ...
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