Signal Mountain Portland Cement Company v. Brown

• Decision Date: 15 February 1944
• Docket Number: No. 9593.,9593.
• Citation: 141 F.2d 471
• Parties: SIGNAL MOUNTAIN PORTLAND CEMENT COMPANY v. BROWN et al. SAME v. GODFREY et al. SAME v. HAYS.
• Court: U.S. Court of Appeals — Sixth Circuit

141 F.2d 471 (1944)

SIGNAL MOUNTAIN PORTLAND CEMENT COMPANY v. BROWN et al. SAME v. GODFREY et al. SAME v. HAYS.

No. 9593.

Circuit Court of Appeals, Sixth Circuit.

February 15, 1944.

Charles A. Noone, of Chattanooga, Tenn., for appellant.

P. H. Thach, of Chattanooga, Tenn. (Thach & Thach, of Chattanooga, Tenn., on the brief), for appellees.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

In the trial together of five separate actions brought against the appellant, Signal Mountain Portland Cement Company, separate verdicts in three cases were awarded the respective plaintiffs (now appellees) for diminution in rental value of properties owned by them. In two cases, non-suits were taken at the end of the trial, after the court had indicated that the two particular cases should not be submitted to the jury. The five original actions were brought in the Circuit Court of Hamilton County, Tennessee, and were separately removed by appellant to the United States District Court for Eastern Tennessee on the ground of diversity of citizenship. Each of the actions was based upon a declaration that the plaintiff, as home owner in an exclusive residential section on Signal Mountain overlooking Chattanooga, had been damaged in the enjoyment and use of his or her property and in the loss of rental value as a result of a nuisance maintained by appellant.

It was charged in all of the declarations that appellant, in the manufacture of Portland cement at its plant at the foot of Signal Mountain below the properties of appellees, had maintained since November, 1939, a nuisance in throwing out in a careless and reckless manner through smoke stacks large quantities of dust, ashes, powdered cement and smoke, which, permeating the pure mountain air, settled on the properties of appellees and deposited dirt and trash throughout their homes, with resultant injury to rugs, draperies, furniture and the like.

In each of its separate answers appellant denied generally the allegations of the declaration and stated that for some eighteen years its plant had been operated continuously, except when closed for lack of business; that, to minimize the escape of dust, soot and ashes, which cannot be wholly eliminated, standard equipment had been installed when the plant was constructed; that its business had been operated in the same manner as that of other up-to-date cement plants in the same section; that it had been guilty of no negligence but had used its property "in a manner and for the only purpose" to which it was adapted.

It was denied that the operation of appellant's business constituted a nuisance; on the contrary, appellant averred that the making of cement is a lawful business which could not be conducted by it on any other location without the abandonment of valuable property. The answer in each case asserted that when appellant began its operations, few, if any, houses or homes were in the neighborhood; and that during recent years appellees and other persons, with knowledge of the location of appellant's plant and of the existing conditions, had purchased property within possible range of slight portions of dust, soot and ashes from plants operated by appellant and by others. These persons had voluntarily subjected themselves to slight annoyance on rare occasions; but such annoyance, if constituting damage, was said to be common to all persons living in the vicinity and to afford appellees no separate right of recovery.

The answer in each case set forth that lately the plant of appellant had been operated almost continuously in aid of national defense; that for several weeks prior to the institution of the suits, so little rain had fallen in the vicinity of Chattanooga that in all probability the dust, soot and ashes from its plant had ascended higher than at any time in the past. It was added that before this "combination of unavoidable circumstances," no complaint concerning the operation of its plant had ever been made to appellant.

The answer in each case declared that because of the elevation of appellee's property and its distance from appellant's plant, no dust therefrom "could reach the plaintiff's property, except possibly the very lightest dust, and that only in extremely dry weather and when the wind was from the southwest." The assertion was made that there is no continuous fall of dust but only an intermittent fall, if any, upon the premises of appellees.

It was not admitted, however, that any dust created by appellant ever reached the premises of the appellees; but the allegation was made that any dust, soot and ashes falling upon the property of appellees came from the commingling of such particles from appellant's plant with those produced by the operation of other plants, factories, foundries, railroads and railroad shops in the vicinity of Chattanooga; and that what proportion of dust, soot and ashes falling upon the premises of appellees was produced by appellant, and what proportion by other plants, was incapable of ascertainment.

In amended answers, appellant announced that it did not know at the time its plant was constructed that there existed an unusual air current around Signal Mountain which carried particles much higher and farther than normal air currents would have driven them. The knowledge of the existence of this unusual air current had come to appellant only recently; from which circumstance appellant insisted that it was not liable to appellees.

Pleas of the statute of limitation were incorporated in the amended answers upon the ground that appellant had operated its plant substantially as at present for more than eighteen years; and that any causes of action for damages accruing from its operation existed in predecessors in title to the appellees, and had long since been barred by Section 8598 of the Tennessee Code of 1932, which provides that actions for injuries to personal or real property shall be commenced within three years from the accrual of the cause of action.

Upon the trial together of the five cases, much testimony was adduced and many exhibits were received in evidence. It was proved that the appellees had all built their homes in 1939; and from this fact appellant presses its chief contention that the actions, having all been brought in June, 1941, are barred by the statute of limitations pleaded. Appellant insists that if its plant is a nuisance, it is a permanent nuisance, for which any right to sue accrued in favor of appellees' predecessors in title and has long since been barred by the three-year statute of limitation, such causes of action "not passing with the conveyances to the plaintiffs."

In support of the argument that if any nuisance resulted from its operations, such nuisance was permanent, appellant points to evidence that its plant operation began in 1923 and has continued since then at the same location; that the supply of needed raw material in the adjacent mountain is sufficient for many years of intended continued operation; that the plant when constructed was modern and has been so maintained; that the total cost of its plant investment is upward of four million dollars; that a standard dust-collecting system is in use; that the only superior type, the Cottrell System, is impracticable, would cost more than four hundred thousand dollars to install and would eliminate no appreciable quantity of dust to justify installation; and that, therefore, any injury to appellees is not "of such a nature as to be abatable, either by the expenditure of labor or money." Dodge, an expert witness introduced by appellant, admitted, however, that were the Cottrell System installed in appellant's plant, eighteen or nineteen tons of dust thrown out on the countryside could be collected over a period of 24 hours. If a true estimate, this would constitute a substantial reduction in dust distribution from the plant of appellant. Parcell testified that dust nuisance had been remedied in other places by the use of "some sort of an abater or apparatus."

Proof was introduced that only 25 of the 157 cement plants operated in the United States are equipped with the Cottrell System. The one witness, Uhlig, who had actual experience with the Cottrell System, expressed the opinion that the system would not prove "practical and efficient" in appellant's plant; and, indeed, would afford no added relief. The expert admitted, however, that under normal operating conditions the Cottrell System traps "from two-thirds to three-fourths of the total dust load."

It was shown that it is impossible to operate a cement plant without creating dust; and that the other five cement plants in Tennessee are not equipped with the Cottrell System, but use the same dust collecting system employed at appellant's plant. Colonel Weeks, formerly appellant's Assistant General Manager and Secretary, testified that while he lived on the mountainside five hundred feet above and one-half mile from the plant, he had the best roses on the mountain and that the dust affected his "wife's disposition more than it did anything else." There was substantial evidence, however, that cement dust from appellant's plant was deposited and accumulated on the properties of the appellees and did damage to furniture, draperies and rugs in their homes.

Upon conclusion of the introduction of their evidence, appellees elected "to sue for temporary damages instead of permanent damages." This action was taken to meet the motion of appellant made earlier that "the court designate whether or not this was a permanent or a temporary nuisance."

Appellant then moved for a directed verdict, first upon the ground that the cement plant, if any nuisance at all, was a permanent nuisance and being such, "the right to sue for damages, present and future, accrued when the nuisance first began to operate, and has long since been barred by the statute of limitations."

The district court overruled the first...