Salter v. B. W. S. Corp., Inc.

• Decision Date: 18 February 1974
• Docket Number: No. 53629,53629
• Citation: 290 So.2d 821
• Parties: Frank T. SALTER, Jr., et al. v. B.W.S. CORPORATION, INC.
• Court: Louisiana Supreme Court

Page 821

290 So.2d 821

Frank T. SALTER, Jr., et al. v. B.W.S. CORPORATION, INC.

No. 53629.

Supreme Court of Louisiana.

Feb. 18, 1974.

Seth Lewis, Jr., Lewis & Lewis, Opelousas, for defendant-applicant.

Joseph W. Greenwald, Asst. Dist. Atty., Lake Charles, for plaintiffs-respondents.

DIXON, Justice.

We granted certiorari in this case to consider the broad injunction issued by the trial court and affirmed by the Court of Appeal prohibiting the defendant from 'disposing of any acid and/or chemicals on their property.'

The defendant, B.W.S. Corporation, Inc., is engaged in the business of disposing of various kinds of industrial waste. B.W.S., intending to dispose of these waste materials by burying them in the ground, undertook engineering site evaluations of property near Starks, Louisiana and a one hundred sixty acre tract outside DeQuincy, Louisiana. The tests indicated that the DeQuincy property was suitable for the purpose intended by B.W.S. and the property was purchased. The corporation sought and was granted a permit from the Louisiana State Department of Health to carry on its proposed disposal operations at the site.

B.W.S. proposed to dispose of the waste by burying it in trenches fifteen feet deep by thirty feet wide by one hundred fifty feet long with a cover of ten feet of clay.

Immediately after B.W.S. began to truck barrels of chemical wastes onto this property, the Calcasieu Parish district attorney, a police juror and the mayor of DeQuincy instituted this suit obtaining a temporary restraining order. Subsequently, two neighbors intervened, an adjacent landowner, Ivey Vanwinkle, and George Frazier, who described himself in his petition as a lessee. ¹ The trial court sustained defendant's exceptions of no cause and no right of action as to the district attorney, the police juror and the mayor. No appeal was taken from that ruling. An exception of no right of action was filed by the defendant in the intervention of George Frazier, but it was not pursued by the defendant. After a two day trial, a temporary injunction was issued and by stipulation was made into a permanent injunction in favor of both intervenors, Frazier and Vanwinkle, and against the defendant, B. W. S. On appeal, the judgment was affirmed. 281 So.2d 764 (1973).

The intervenor, Frazier, who occupies a tract adjacent to the northeast corner of defendant's property, established that he had a shallow well to the depth of twenty-thirty feet located five hundred feet east of defendant's property.

Vanwinkle, whose property is located across Louisiana Highway 389 due north of the middle portion of defendant's tract, established that he had a water well one hundred eighty-nine feet deep and a pond twelve feet deep on his property. The well is some seven hundred feet from defendant's property.

Plaintiffs sought the injunction because of the alleged imminent danger of the pollution of their wells and pond by lethal substances placed on defendant's tract.

At trial the plaintiffs called several expert witnesses. Anthony Starkovich, a chemist, testified that samples taken from the barrels located at the site included acids and caustic substances containing heavy metals. Neil Bishop, a sanitary engineer, testified that the natural drain in the area was to the south and that the soil for two or three feet under the surface was a silty loam which was very permeable. Jacoby Scher, an expert in water pollution and solid waste, testified that there are six wells and a pond in the area and that in his opinion there was a probability that chemicals buried on defendant's property would permeate the wells in the area. We note that Scher's opinion was not based on tests, borings or any other source of evidence concerning the relationship between aquifers on defendant's property and those under plaintiffs' property. He also testified that the movement of fluid through clay was on the order of 1/100 of a foot a year. Louis Capozzoli, a civil engineer with expertise in waste disposal, testified that some borings taken between a pit which had been dug on defendant's land and Frazier's well indicated a sand stratum at eighteen feet. Other borings reached a sand stratum at depths of twenty-six to twenty-eight feet. In his opinion there is a sandy silt stratum running from the boring nearest the pit to Frazier's well. He also testified that, even though the natural flow in the acquifer was probably from the Frazier property to defendant's property, removal of water from the well could cause a reversal in the natural flow.

Gordon Boutwell, an expert in soil mechanics and soil foundations, who testified on behalf of defendant, stated that the subsurface of the site consisted primarily of clay with a few layers of sand to a depth of thirty feet. He was of the opinion that the site was suitable for the intended purpose provided that the trenches were lined with four to five feet of compacted clay or other impermeable material, such as drilling mud. Another expert witness, Ara Arman, corroborated the testimony of Boutwell and stated that the proposed operations could be conducted safely if the trench was lined with an impermeable material and if the chemicals involved did not react adversely with the soil. The witness Ferrell, a clay mineralogist, testified that he had tested the clays from the site with samples of substances taken from the barrels at the location. He stated the clays from the site would react with the chemicals and that the reaction would neutralize the chemicals on a one to one volume basis with the clay. The result of the reaction would be to fill the pores in the clay, thus making it more impermeable.

This action falls under C.C. 667 which provides:

'Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.'

We must now consider whether Frazier, who is at most a lessee, has a right of action. In State ex rel. Villett v. King, 46 La.Ann. 78, 14 So. 423 (1894), the court held that a tenant had a right of action in a proceeding to enjoin certain objectionable aspects of an operation conducted on neighboring property where that operation threatened the health and comfort of the tenant. In Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385 (1971), we granted injunctive relief to tenants whose health and safety were threatened by the manner in which the neighboring property was being used. In Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973), we recognized that 'proprietor' as used in C.C. 667 need not be limited to owners.

We find that under the circumstances before us Frazier has a legally cognizable interest in the litigation and has a right of action to seek an injunction.

From the evidence adduced at trial we conclude that intervenor Vanwinkle has failed to prove that operations on defendant's property will damage his property. There is no evidence to show that underground disposal of chemical waste will interfere with his water well or pond.

We find that the evidence establishes the probability that disposal of chemical waste by defendant without adequate precautions will pollute the well from which Frazier and his family obtain their water, thus posing a threat to their health and safety. However, evidence adduced by the defendant satisfies us that the operation envisioned can be conducted safely if the recommendations relative to ensuring that the trenches are lined with an impermeable material are followed.

In order to justify an injunction prohibiting lawful activities a showing must be made that the proposed operations will occasion irreparable injury. C.C.P. 3601; Cf. Hilliard v. Shuff, 260 La. 384, 256 So.2d 127 (1972); Frederick v. Brown Funeral Homes, 222 La. 57, 62 So.2d 100 (1952); Bell v. riggs & Bro., 38 La.Ann. 555 (1886); Fuselier v. Spalding, 2 La.Ann. 773 (1847). See also, Young v. International Paper Co., 179 La. 803, 155 So. 231 (1934); Adams v. Town of Ruston, 194 La. 403, 193 So. 688 (1940).

C.C.P. 3601 provides in pertinent part:

'An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.'

We find the availability of injunctive relief in an action predicated on C.C. 667 is controlled by C.C.P. 3601. C.C. 667 does not specifically provide for injunctive relief; thus an injunction is only available under this article upon a showing of irreparable injury. ² Contra, see the dissent in Hilliard v. Shuff, supra.

No one may prevent the establishment of a lawful business merely because of Fear that it will cause damage to neighboring estates. Cf. Frederick v. Brown Funeral Homes, supra; Graver v. Lepine, 161 La. 97, 108 So. 138 (1926); Canone v. Pailet, 160 La. 159, 106 So. 730 (1926).

Suit was filed in this case before the disposition of any waste material. We have only the plans of the defendant and the beginning of its operation. The record establishes that this waste disposal operation can be conducted safely and in a manner not violating the duties of vicinage. However, the consequences of failure to exercise great care to prevent the escape of poisonous materials are so serious (the poisoning of Frazier's well) that we deem it appropriate to issue a qualified injunction. See Robichaux v. Huppenbauer, supra. Although the record shows only that the violation of recommended engineering procedures will result in damage to neighbors, the consequences of escaping poisonous materials are so terrible that the injunctive relief is appropriate.

The defendant will therefore be enjoined to conduct its operations in compliance with standards recommended by its experts which will prohibit the escape of noxious substances on the property of its neighbors. The right is reserved to plaintiffs to renew their complaint upon...