Rogers v. Bond Bros.

• Decision Date: 16 June 1939
• Citation: 279 Ky. 239,130 S.W.2d 22
• Parties: ROGERS et al. v. BOND BROS.
• Court: Kentucky Court of Appeals

130 S.W.2d 22

279 Ky. 239

ROGERS et al. v. BOND BROS.

Court of Appeals of Kentucky

June 16, 1939

Appeal from Circuit Court, Todd County; Doyle Willis, Judge.

Action by W. E. Rogers, Sr., and others against Bond Brothers for pollution of artesian well of plaintiff with creosote from defendant's plant. From a judgment for the defendant, the plaintiffs appeal.

Affirmed.

W. E Rogers, Jr., and White & Clark, all of Hopkinsville, and J D. Standard, of Elkton, for appellants.

Woodward Dawson & Hobson, of Louisville, Taylor & Milam, of Russellville, Petrie & Davis, of Elkton, and Trimble &amp Trimble, of Hopkinsville, for appellee.

STITES Justice.

This is an appeal from a judgment of the Todd Circuit Court in favor of the appellee, Bond Brothers. Appellants, W. E. Rogers, Sr., and E. O. Morris, are the surviving members of a partnership operating under the name of the Guthrie Waterworks Company. The heirs-at-law of a third deceased partner, W. O. Nelson, have joined in the petition. The appellants own an artesian well near Guthrie, Kentucky, which was the sole source of the town's water supply from 1914 until "sometime after the year 1930". The well, amply sufficient for the needs of the town, then became so polluted with creosote that the water was rendered unfit either for drinking or the various other uses to which water is normally put. It is for this pollution that the appellants seek to recover in this action. From 1914 to 1930, the Louisville & Nashville Railroad Company operated a plant in the vicinity of the well where it creosoted wooden cross-ties. In 1930, the plant was leased to appellee, Bond Brothers, a corporation, which continued the business. To preserve the ties, creosote is administered by pressure in vats. The ties, still wet, are then removed from the vats, stacked, and allowed to drain upon the ground. Though the business has increased in volume, the routine of this process has remained the same. Appellee, after taking over the plant, sank two wells on the property and attempted to raise water from them without success by applying steam lines used in creosoting the ties. Later, it purchased land about the plant and removed timber from twenty-five acres adjacent to appellants' well by the use of dynamite. It is alleged that the operation of the plant was "negligently, carelessly, and maliciously" carried on, causing creosote to impregnate the ground to such an extent, either by seepage from the stacking of wet ties, or through fissures created in digging the wells or blasting the stumps, that the underground waters leading to appellants' spring were contaminated and the appellants were damaged in the amount of $25,000. (An additional $10,000 was later asked to indemnify appellants for losses suffered since the institution of this proceeding.) The Louisville & Nashville Railroad Company was originally joined as a co-defendant, but the appellants dismissed the cause of action against them. At the conclusion of appellants' presentation of evidence, the trial court sustained appellee's motion for a peremptory instruction and the case is here on appeal from that judgment.

It is not denied that creosote was present in the appellants' spring; nor is it denied that the presence of creosote (a coal-tar derivitive containing certain harmful acids with an affinity for chlorine) rendered the water poisonous for human use.

While the duty of one who maintains deleterious substances on his property to prevent their escape is not an absolute one it may be observed that negligence, as ordinarily conceived, is not necessarily implicit in the liability. The idea is well expressed in Cooley on Torts (4th Ed.), sec. 407, with a wealth of supporting authority: "It is said in an early case that where one has filthy deposits on his premises, he whose dirt it is must keep it that it may not trespass. Therefore, if filthy matter from a privy or other place of deposit percolates through the soil of the adjacent premises, or breaks through into the neighbor's cellar, or finds its way into his well, this is a nuisance. Nor where this is the natural result of the deposit is the question of liability one depending on degrees of care to prevent it."

The extreme doctrine of Rylands v. Fletcher, 3 H. L. 330, has been expressly rejected in Kentucky. Triple-State Natural Gas & Oil Company v. Wellman, 114 Ky. 79, 70 S.W. 49, 24 Ky. Law Rep. 851, 1 Ann.Cas. 64; Long v. Louisville & N. R. Co., 128 Ky. 26, 107 S.W 203, 32 Ky.Law Rep. 774, 13 L.R.A., N.S., 1063, 16 Ann.Cas. 673. It is observed in Harper on Torts, sec. 180, that "nuisance differs from those cases which fall within the rule of Rylands v. Fletcher in...