Southland Co. v. Aaron, 39138

• Decision Date: 03 May 1954
• Docket Number: No. 39138,39138
• Parties: , 49 A.L.R.2d 243 SOUTHLAND CO. v. AARON et ux.
• Court: Mississippi Supreme Court

Page 161

72 So.2d 161

221 Miss. 59, 49 A.L.R.2d 243

SOUTHLAND CO. v. AARON et ux.

No. 39138.

Supreme Court of Mississippi.

May 3, 1954.

Welch, Gibbes & Butts, Laurel, Wells, Thomas & Wells, Jackson, for appellant.

James D. Hester, Laurel, for appellees.

KYLE, Justice.

This case is before us on appeal by the Southland Company, a joint venture composed of E. Constantin, Jr., and others, defendant in the court below, from a judgment of the Circuit Court of the Second Judicial District of Jones County, in favor of Edward R. Aaron and wife, Nellie F. Aaron, plaintiffs in the court below, for the sum of $1,875 as damages alleged to have been sustained by the plaintiffs as a result of the pollution by the defendant of the waters of a creek which flowed through the lands of the plaintiffs.

The record shows that the appellee, Edward R. Aaron, was the owner of 187 1/2 acres of land lying east of U. S. Highway No. 11 and a short distance north of Sandersville, in Jones County, which was traversed from north to south by Big Boguehoma Creek, a natural watercourse. Approximately 43 1/2 acres of the land, in the northwest corner of the tract, lay west of the creek and fronted on the highway. Aaron's dwelling house and cattle barn were located on this 43 1/2-acre tract. The remaining 144 acres of land, lying east of the creek, was swampy woodland, a part of which was subject to overflow during the winter months, and was neither cultivated nor used for pasturage purposes. Aaron had purchased the land from his wife during the summer of 1950, and had moved on the land in November, 1950. North of Aaron's land a small tributary branch known as McGill's Branch flowed eastwardly into Boguehoma Creek.

The appellant, Southland Company, was the owner of an oil refinery located approximately five-eights of a mile north of Aaron's land and south of McGill's Branch. The refinery had been erected during the year 1946 for the purpose of refining crude oil and converting the same into marketable products. The crude oil was brought to the refinery and stored, and was then run through the fractionation coils where it was distilled into gasoline and motor fuels. Large quantities of water were used in the refining process for cooling purposes. Waste oil leaking from the pumps was collected in reclamation facilities to prevent waste. A series of traps was provided in the plant with double sedimentation ponds below them, for the purpose of separating the oil from the water. The water then flowed into a sedimentation pond. When the effluent left the plant it flowed into a ditch which emptied itself into McGill's Branch.

The plaintiffs alleged in their declaration that Big Boguehoma Creek had always furnished a permanent water supply for the plaintiffs' land; that its waters prior to the construction of the defendant's refinery were clean, wholesome and healthful, and entirely fit for consumption by man and beast; and that the creek afforded pleasant swimming and fishing facilities, and provided wholesome water the year around for cattle on the plaintiffs' land. The plaintiffs alleged that during the two years immediately preceding the filing of their declaration the defendant had continually permitted poisonous, harmful and deleterious refuse consisting of oil, asphalt, and various chemicals, to escape from its refinery and to flow into McGill's Branch, and thence into Big Boguehoma Creek; that the poisonous refuse thus escaping from the refinery, had contaminated and polluted the waters of the creek so as to render the same unfit for use by man or beast; that the waters thus contaminated and polluted had overflowed the plaintiffs' lands and had caused deposits of such poisonous refuse to be left on the banks of the creek and on the low lands adjacent thereto, thereby damaging said lands and completely destroying the reed cane and pasture grasses near the banks of the creek. The plaintiffs asked for damages for depreciation in the market value of their land and for the loss of their water supply, and also damages to cover the cost of the digging of a well and the installation of an electric pump to provide a water supply for their cattle; also damages for the loss of swimming facilities and fishing rights in the waters of the creek; and the plaintiffs also asked for punitive damages.

The defendant in its answer denied the material allegations of the plaintiffs' declaration. The defendant averred in its answer that the waters of Big Boguehoma Creek had been contaminated since 1944 by the salt waters escaping from the Heidelberg Oil Field situated several miles north of the refinery; and the defendant denied that it was in anywise responsible for the contamination of the waters of the creek.

Many witnesses testified on behalf of the respective parties and the evidence as to the extent of the contamination complained of was conflicting. The plaintiff, Edward R. Aaron, testified that he had acquired title to the above mentioned tract of land on June 19, 1950, and that he moved on the land in November 1950, after his retirement from the Navy. He stated that he was engaged in the business of raising registered Hereford cattle. Twenty acres of the 43 1/2-acre tract west of the creek was in a permanent pasture at the time of the trial, and 14 head of cattle were being pastured on the lands.

Aaron testified that the waters of the creek had been contaminated by foreign substances escaping from the refinery during the two years that he had lived on the land. He had made a detailed inspection of the waters of the creek and the waters of McGill's Branch below the refinery. He stated that the effluent from the refinery was discharged into a ditch which ran northwardly approximately 1/4 mile and emptied into McGill's Branch, which flowed into the Big Boguehoma Creek a short distance above his own land. Aaron testified that he had examined the waters of the creek above the point where McGill's Branch emptied into the creek, and he did not find those waters contaminated. He had also examined the waters of the branch above the point where the refinery ditch emptied into the branch, and the waters of the branch were clear. He stated that the effluent which was discharged from the refinery and which found its way into the creek had the appearance of something like oil-slick. It floated on top of the water; 'has a sort of fluorescent sheen in it,' and 'if you stick your finger in it and put it in your mouth it has an oily taste to it. * * * It is greasy to touch, and feels sort of sticky.' He had seen globules of oil come out from the soil on the banks of the creek and run down into the stream. The contamination appeared to be worse in the summer time than during the winter. He testified that he had fenced his pasture land off from the creek, and that he had installed a well and an electric pump to furnish water for his cattle, and had erected a fence along the west bank of the creek, as a part of his pasture enclosure. He admitted, however, that the well had been dug and the fence erected during the summer of 1950, before he actually moved on the land and before the beginning of the two-year period mentioned in his declaration. He stated that he had not used the 144 acres of land lying east of the creek for pasturage purposes because he had no water supply; and he had been unable to fish in the creek since the waters of the creek were contaminated. He stated that he had complained to J. R. Cox, the superintendent of the Southland Company, during the month of October 1952, about the contamination of the waters of the creek, and that Cox said to him: 'I know there has been oil running down there, but we have made an attempt to correct it. I know there is a flourescent sheen running down there, but that won't hurt anything.' He stated that he land east of the creek was suitable for pasturage during the summer months, but he had been unable to use the same because he had no water supply on that side of the creek.

Aaron admitted that no damage had been done to the improved pasture land west of the creek or the grasses on the pasture land by the foreign matter in the creek. His cows had never had an opportunity to drink water out of the creek, because his pasture land was fenced off from the creek. But he estimated that the water overflowed from the creek for a distance of fifty yards in some places; and in his opinion the oily substance in the water would in time damage his land.

Aaron's testimony concerning the pollution of the waters of the creek during the two-year period was corroborated by the testimony of other witnesses who testified for the plaintiff.

J. R. Cox, plant superintendent of the Southland Company who was a graduate chemist, testified that the crude oil was brought to the refinery through pipe lines or in tank cars. He then described the fractionating process. He stated that there was only a small amount of chemicals used in the process. Only a small amount of caustic soda was used to wash the gas. Cox stated that there was no waste of the crude oil and there were no waste products from the fractionating process, but there was evidence of caustic soda deposited in the effluent.

Cox stated that on February 9, 1951, a break occurred in the pipe line, and 400 barrels of oil escaped into the ditch and into the branch, and thence into Boguehoma Creek. Work crews were employed about a month in the recapture of the oil. Nine different traps were thrown across Boguehoma Creek on the south side to catch the oil. The refinery spent $8,000 in cleaning up the oil that escaped. Cox stated that a controlled laboratory was maintained at the plant, and that frequent tests were made of the effluent that flowed from the plant. The tests had never shown more than 700 parts per million sodium chloride in the effluent flowing from the plant into McGill's Branch. The waters of Boguehoma Creek above the point where McGill's Branch entered the...