Rose v. Socony-Vacuum Corp.

• Citation: 173 A. 627
• Decision Date: 02 July 1934
• Docket Number: Nos. 7407, 7408.,s. 7407, 7408.
• Parties: ROSE v. SOCONY-VACUUM CORPORATION. ROCHA v. SAME.
• Court: United States State Supreme Court of Rhode Island

173 A. 627

ROSE

v. SOCONY-VACUUM CORPORATION.

ROCHA

v. SAME.

Nos. 7407, 7408.

Supreme Court of Rhode Island.

July 2, 1934.

Exceptions from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Action by Manuel Rose and by Joseph Rocha against Socony-Vacuum Corporation. On exceptions to rulings sustaining demurrers to the declaration.

Exceptions in each case overruled, and cases remitted, with directions.

William A. Needham, Albert A. Baker, and Baker & Spicer, all of Providence, for plaintiff.

Francis I. McCanna, of Providence, for defendant.

MURDOCK, Justice.

These cases, described in the writs as trespass on the case for causing a nuisance, were heard together for the reason that the same questions of law are involved in each case. They are here on plaintiffs' exceptions to a ruling of the superior court sustaining demurrers to the declarations which are summarized in plaintiffs' brief as follows:

"The plaintiff (Manuel Rose) for thirty years prior to and in June, 1930, owned a farm in East Providence, bounding southerly on the state highway known as the Wampanoag Trail, comprising fifty-seven acres with a dwelling house, large barn and other out buildings thereon, and occupied by him and his family. On the farm was a well of pure water used for drinking purposes, and on the westerly part of the farm was a stream in part fed by percolations of water in and under the land of the defendant and said highway and into said stream. On the farm was a large piggery and a hennery, the hens supplied by water from the well, and the pigs supplied by water of the stream. On the southerly side of and bounding northerly on said highway and opposite said farm the defendant had a large tract of land at a higher elevation than the farm.

"Years before 1930, the defendant acquired said tract of land and built upon it a large oil refinery and a large number of tanks for storing petroleum, gasoline and other petroleum products, and operated the same and from time to time suffered and permitted to be discharged on its land and into settling basins, bodies of water and natural water ponds and ways thereon large quantities of petroleum, gasoline, petroleum products and waste substances from its refinery and tanks with the result that large parts of its said land, basins, bodies of water and natural water ponds and ways became impregnated, and polluted by the same, and that it was the duty of the defendant to confine to its said land said polluting matters and substances and said waters in their polluted condition and not suffer or permit the same to be discharged or escape from its land to, in, under and on any adjoining or neighboring land, and thereby create a nuisance there on to its injury, but the defendant disregarding its duty wrongfully and injuriously suffered and permitted large quantities of said polluting matters and substances and said waters in their polluted condition to escape from time to time from its land by means of percolations thereof in, under and through its land to, in, under and through said highway and to, in, under, on and through said farm and parts thereof and to and into said well and said stream, with the direct result that in said June, 1830, said well became polluted by the same and especially by gasoline and rendered unfit as drinking water for use by man or beast, and also said stream theretofore fit for use then became polluted and unfit for use by man or beast with the direct result that the plaintiff in June, 1930, and until the present time was deprived of the use of said well and stream and obliged since to obtain water from other sources off his farm for the supply of his house for drinking and domestic uses and watering his hens and for watering his hogs and pigs and other uses for which the stream was available.

"Further the declaration sets forth that because of the pollution of the stream 136 of his hogs and pigs died from drinking the waters, including 75 breeding sows, and because of the pollution of the well about 700 of his hens died from drinking the well waters, and that because of a lack of a wholesome water supply the plaintiff has been deprived of raising on his farm as large a number of pigs and hens as theretofore and his business in raising and selling the same interfered with and greatly reduced in amount to his monetary damage and loss. The declaration concludes with a general allegation as to other damages from said nuisance caused by the defendant."

The declarations allege no negligent act, and recovery is sought principally on the ground that the acts set forth in the declarations have resulted in a nuisance for which defendant is liable even though not negligent The assertion that the acts of the defendant complained of have resulted in a nuisance is petition principii.

There is no wholly satisfactory definition of what constitutes a nuisance, but it is generally agreed that a nuisance has its origin in the invasion of a legal right. In Cooley on Torts, vol. 3 (4th Ed.) § 398, it is said that "An actionable nuisance may, therefore, be said to be anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights," and in Joyce on Nuisances, § 29, that "a nuisance does not necessarily exist even though one may by the use of his property cause an injury or damage to another." The plaintiffs must therefore go further to establish liability than the mere assertion that a nuisance exists on their land by reason of the acts of the defendant.

The plaintiffs' cases rest on the proposition that they have a cause of action from the fact that contaminating and deleterious substances have escaped from the land of the defendant through the medium of percolating waters to their land. The plaintiffs rely on the much-discussed case of Rylands v. Fletcher, L. R. 3 H. L. 330, where the following rule laid down by Mr. Justice Blackburn in Fletcher v. Rylands, L R, 1 Ex. 265, was approved: "We think that the true rule of law is, that' the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or, perhaps that it was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just * * * and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property." This rule is a radical departure from the commonly accepted doctrine of the law of torts that liability is predicated on fault. It has not found general acceptance in this country, and in England it has been greatly modified by later decisions. Wilson v. Newberry, L. R. 7 Q. B. 31; Ross v. Feddon, L R. 7 Q. B. 661; Nichols v. Marsland, L. R. 2 Ex. 255 s. c. 2 Ex. D. 1; Box v. Jubb, 2 Ex. D. 76. See Pollock, Law of Torts (12th Ed.) p. 496; Salmond, Law of Torts (7th Ed.) p. 23; Law Times Rep. vol. 140, p. 1.

A profound criticism of the rule is found in the opinion of Mr. Justice Doe in Brown v. Collins, 53 N. H. 442, at page 448, 16 Am. Rep. 372, where it is said: "Everything that a man can bring on his land is capable of escaping,—against his will, and without his fault, with or without assistance, in some form, solid, liquid, or gaseous, changed or unchanged by the transforming processes of nature or art,—and of doing damage after its escape. Moreover, if there is a legal principle that makes a man liable for the natural consequences of the escape of things which he brings on his land, the application of such a principle cannot be limited to those things; it must be applied to all his acts that disturb the original order of creation; or, at least, to all things which he undertakes to possess or control anywhere, and which were not used and enjoyed in what is called the natural or primitive condition of mankind, whatever that may have been. This is going back a long way for a standard of legal rights, and adopting an arbitrary test of responsibility that confounds all degrees of danger, pays no heed to the essential elements of actual fault, puts a clog upon natural and reasonably necessary uses of matter, and tends to embarrass and obstruct much of the work which it seems to be man's duty carefully to do." Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; Burdick, Law of Torts (4th Ed.) § 12: "The rule in Bylands v. Fletcher, even with the recognized limitations, finds no favor even in England, and American courts have generally refused to follow it." See, also, Bohlen, Studies in the Law of Torts, p. 421.

We think, therefore, that reason and the great weight of authority in this country sustain us in refusing to adopt the rule of absolute liability as stated in Rylands v. Fletcher, supra.

The plaintiffs lean heavily on the maxim sic utere tuo ut alienum non laedas. This maxim, so often cited as the governing principle of decisions, affords little, if any, aid in the determination of the rights of par ties in litigation. If it be taken to mean any injury to another by the use of one's own, it is not true, and, if it means legal injury, it is simply a restatement of what has already been determined. "The maxim, sic utere tuo ut alienum non laedas, is mere verbiage. A party may damage the property of another where the law permits; and he...