Skipwith v. Albemarle Soapstone Co.

• Decision Date: 10 February 1911
• Docket Number: 922.
• Citation: 185 F. 15
• Parties: SKIPWITH v. ALBEMARLE SOAPSTONE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

185 F. 15

SKIPWITH v. ALBEMARLE SOAPSTONE CO.

No. 922.

United States Court of Appeals, Fourth Circuit.

February 10, 1911

This is a civil action of trespass on the case brought by the plaintiff in error, plaintiff below, L. Skipwith, against the Albemarle Soapstone Company, defendant in error, defendant below, a corporation seeking to recover damages for pollution of the waters of a stream, and for injuries to plaintiff's lands lying along the stream. The plaintiff in his declaration alleges that he is owner of a farm situated in Albemarle county, Va., upon which he lives and carries on the business of an agriculturist, and that about 50 or 60 acres of his farm consists of bottom lands located on what is known as 'Eppes creek,' which is a running stream, and in its natural state was unpolluted and pure, and furnished water for the stock of the plaintiff, and also for agricultural purposes; that at frequent intervals the said stream overflowed its banks and flooded the lands of the plaintiff, and thereby was conducive to the improvement of the bottom lands and benefited them for agricultural and grazing purposes; that the defendant in operating a soapstone mill erected on the waters of the said stream some four or five miles above the lands of the plaintiff had poured and washed into the stream, and at points on its branches, great quantities of soapstone dust and debris, and tailings from quarrying, mining, sawing, and milling soapstone, which substances are sterile and unwholesome; that they polluted the water of the stream, and that the accumulations of soapstone dust, debris, and tailings which had settled in the bottom of the stream and its branches were lifted and churned by the freshets and overflow of the said stream and carried upon the lands of the plaintiff and there deposited, which resulted in injuring the land to the extent that it became unfit for agricultural or grazing purposes, and plaintiff laid his damages at $500 for pollution of the water, and $4,500 for injury to his land. The defendant entered its plea of not guilty, and thereby raised the general issue, and also filed four several special pleas. The plaintiff objected to the filing of pleas 2, 3, and 4, and the objection to No. 3 was sustained, and to 2 and 4 overruled by the court, to which ruling the plaintiff duly excepted. Thus the case stood for trial upon the general plea of not guilty and upon the special pleas. The facts as set out in the special pleas were, in substance, that the defendant was owner in fee simple of a large tract of land in Albemarle county, situated upon the waters of Eppes creek about four miles above the lands of the plaintiff, on which tract there were valuable deposits of soapstone, and that in 1883, 24 years prior to the bringing of plaintiff's suit, the defendant had constructed and put in operation upon its land a costly valuable, and permanent mill and manufactory for the quarrying, sawing, working, and milling of soapstone; that the manufactory and mill consisted of extensive buildings and structures and costly machinery and appliances, constructed erected, and put in operation at a great expense and outlay for the said purposes, and also substantial and permanent in its character, and that more than 20 years had elapsed from the erection and commencement of the operation of the said manufactory before the bringing of plaintiff's suit; that the said manufactory had continued to be operated without interruption from the time of its completion aforesaid, and to the same extent, for more than 20 years; and that the substances complained of were cast into the stream by the defendant through and by means of the said mill, manufactory machinery, and appliances and continuously in the same manner without interruption, and that the casting of said soapstone, tailings, etc., into the waters of the stream were the necessary result of the operations of the said manufactory. The jury returned a verdict for the defendant, basing it on instruction B given by the court at the instance of plaintiff, as follows: 'The court instructs the jury that if they shall believe from the evidence that the amount of soapstone discharged into the stream by the defendant has been materially increased within the five years preceding May 27, 1907, then they may find for the plaintiff and assess his damages at such amount as they shall believe from the evidence he has suffered by reason of such increase, although they may determine that no recovery can be had for damage suffered from that amount which was being discharged on and prior to May 27, 1902. ' The case comes here by writ of error at the instance of the plaintiff below for review.

H. W. Walsh and Daniel Harmon, for plaintiff in error.

William O. Fife and George Perkins (Moon & Fife and Perkins & Perkins, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and WADDILL and BOYD, District Judges.

BOYD District Judge (after stating the facts as above).

The foregoing synopsis of the facts in the case and the pleadings will give a general understanding of the nature of the action. However, a reference to other facts and circumstances involved will be had in the course of our discussion of the points which arise. It may be said in the outset that the three defenses set up by the defendant were first, a plea of not guilty, which, under the Virginia practice in an action of trespass on the case for damages, raises the general issue. The first special plea was that by the uninterrupted use of the waters of Eppes creek for more than 20 years the defendant had acquired a right to such use by prescription, and the other special plea was that the use of the stream in the operation of the mill of the defendant was necessary; that the structure was permanent in its character, and that the waste therefrom had been discharged into the waters of the stream continuously from the time that the operations began, and that, therefore, if the discharge of such waste into the stream was a nuisance, it was a permanent one; that the injury therefrom was direct, immediate, and complete, and that the damages therefor, if any resulted, should have been measured in a single action; and that under the Virginia law the plaintiff was barred to bring his action after the lapse of five years from the time the operation of the mill began.

We could find no error in this case if the special defenses set up by the defendant were applicable to the facts which are uncontroverted or to the cause of action set forth in plaintiff's declaration alleging injury to his land, for, as relating to the principles involved in the defenses, the law was correctly stated by the learned trial judge. We are of the opinion, however, that to adopt these defenses, or to try the case upon the theory that they, or either one of them, could be sustained as against the plaintiff's alleged injury to his land was error.

We will consider first the question of right by prescription. Had the conclusive presumption of such right in defendant arisen by the lapse of time? Take it to be true that the defendant in the continuous operation of the soapstone mill, which was a permanent structure, had discharged into the upper waters of Eppes creek the dust, tailings, etc., from the mill from the time the operations began in 1883, and that such discharge was necessarily consequent upon such operation, can it be said that the use of the stream for this purpose was adverse to the right of plaintiff, who is a riparian owner four miles...