Spanbauer v. J.R. Simplot Co.

• Decision Date: 27 February 1984
• Docket Number: No. 14705,14705
• Citation: 685 P.2d 271,107 Idaho 42
• Court: Idaho Supreme Court
• Parties: John SPANBAUER and Marie Spanbauer, husband and wife, Plaintiff-respondents and Cross Appellants, v. J.R. SIMPLOT COMPANY, a foreign corporation; Food, Machinery & Chemical Corporation, aka F.M.C. Corporation, a foreign corporation; John Doe, Jane Doe, John Smith and Jane Smith, Fictitious individuals; and John Doe Corporation and Jane Doe Corporation, fictitious foreign corporations, Defendant-appellants and Cross Respondents.

Page 271

685 P.2d 271

107 Idaho 42

John SPANBAUER and Marie Spanbauer, husband and wife, Plaintiff-respondents and Cross Appellants, v. J.R. SIMPLOT COMPANY, a foreign corporation; Food, Machinery & Chemical Corporation, aka F.M.C. Corporation, a foreign corporation; John Doe, Jane Doe, John Smith and Jane Smith, Fictitious individuals; and John Doe Corporation and Jane Doe Corporation, fictitious foreign corporations, Defendant-appellants and Cross Respondents.

No. 14705.

Supreme Court of Idaho.

Feb. 27, 1984.

Rehearing Denied Aug. 23, 1984.

Wesley F. Merrill, of Merrill & Merrill, Pocatello, for defendant-appellant and cross-respondent J.R. Simplot Company.

Louis F. Racine, Jr., of Racine, Olson, Nye, Cooper & Budge, Pocatello, for defendant-appellant and cross-respondent FMC Corp.

R. Max Whittier, of Whittier & Souza, Pocatello, for plaintiffs-respondents and cross-appellants Spanbauers.

BAKES, Justice.

This action was commenced to recover for injury to respondent Spanbauer's real property, and to a cow/calf operation conducted on the property, allegedly caused by the emission of fluorides from the appellants' phosphate plants. Appellants Simplot and FMC appeal from a judgment based on a jury verdict in favor of Spanbauer which granted $95,545 on the injury to property count, and Spanbauer cross appeals from the trial court's grant of a judgment n.o.v. on the claim of injury to the cattle operation for which the jury had awarded $13,526. We reverse the judgments challenged on both appeals and hold that there is a lack of substantial competent evidence to support the jury's verdict on the injury to property claim, and that the trial court erred in granting a judgment n.o.v. on the cattle operation claim.

Simplot and FMC operate separate phosphate plants in the Pocatello area. These plants emit fluorides as a byproduct of phosphate processing. In 1956, after the plants had already begun operation, Spanbauer purchased the land in question here. The Spanbauer family conducted a farming and cattle feeding operation on the land. A few years before 1976, the family began a cow/calf operation on the property. The evidence reflects that to conduct a successful cow/calf operation one must build up a herd by breeding the cattle, in an attempt to breed higher quality cattle for sale. Spanbauer used part of his land to keep and feed the cattle, while using the remainder of his property and many acres of leased property to raise hay and grain for feed.

In approximately 1976, Spanbauer noticed that many of his cattle appeared to be having problems in the development of their teeth and joints. He suspected that the problem stemmed from fluorosis, a disease which affects animals who ingest an overabundance of fluorides. He subsequently conducted tests on the foliage and bone analyses of animals raised on the property. These tests indicated the strong presence of fluorides. Spanbauer also noticed that his land, located at a distance of 2 1/2 miles from the phospate plants, was often covered with dust and effluents originating at appellants' plants. Spanbauer suspected that the fluoride contamination on his land stemmed from these emissions.

From 1976 through subsequent years, Spanbauer's cattle continued to suffer from the effects of fluorosis. In 1980, Spanbauer determined that his cattle operation could not continue in the Pocatello area because of the fluorosis condition. He then moved to Jerome and commenced this action in October, 1980. At the time of trial, Spanbauer still owned 130 acres of the land in question, having failed in his efforts to sell it.

Spanbauer brought suit against FMC and Simplot, alleging damage to his land, loss of profits to his cow/calf operation, and claiming punitive damages. A great deal of the testimony at trial was devoted to proving or disproving the existence of fluorosis in Spanbauer's cattle. The question of liability of Simplot and FMC for the fluorosis contamination of defendant's land and cattle operation is not challenged on this appeal. The only questions presented deal with the problems posed by Spanbauer's alleged failure to prove the amount of damages suffered with sufficient certainty.

I

We will consider the appeal of Simplot and FMC first. They challenge the award for damages to the real property. Our task on appeal from a jury verdict is to determine if there was substantial, competent evidence to support the verdict. Quincy v. Joint School Dist. No. 41, Benewah County, 102 Idaho 764, 640 P.2d 304 (1981); Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978); Werry v. Phillips Petroleum Co., 97 Idaho 130, 540 P.2d 792 (1975). In this case, the trial court refused to grant a judgment n.o.v. on this issue. The substantial evidence test also applies to an appeal from a denial of a motion for judgment n.o.v. Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974). In reviewing the evidence, we must view it in a light most favorable to the respondent Spanbauer. Higginson v. Westergard, 100 Idaho 687, 604 P.2d 51 (1979); Furness v. Park, 98 Idaho 617, 570 P.2d 854 (1977); Matter of Estate of Webber, 97 Idaho 703, 551 P.2d 1339 (1976). Only when the findings of the trier of fact are clearly erroneous will the verdict be set aside. See Massey-Ferguson Credit Corp. v. Peterson, 102 Idaho 111, 626 P.2d 767 (1980); State ex rel. Kidwell v. Master Distributers, Inc., 101 Idaho 447, 615 P.2d 116 (1980). See also I.R.C.P. 52(a). A finding of the trier of fact will be set aside only if there is no substantial evidence to support it. See Wood v. Sadler, 93 Idaho 552, 468 P.2d 42 (1970).

Only two people testified on the question of the measure of damages stemming from the injury to Spanbauer's land. One was Spanbauer himself. He testified that, based on his experience, in his opinion the value of his land at the time of trial would be $3,200 per acre if it were free from fluoride contamination.

"Q. BY MR. WHITTIER: Do you have an opinion as to what the value of your place would be if it was--did not have the fluoride contamination? This is your home place.

"A. Yes. I think it would have a value of $3,200 per acre."

He testified that he based this estimate not only on his experience, but also on the fact that adjoining land sold shortly before trial for $3,200 an acre. He then testified that the present value of his land with fluoride contamination was $275,000. ¹ He explained that he had discounted the value of his land by one-third to account for the damage caused by fluoride contamination.

"Q. Would you tell us how you arrived at that.

"A. I figured a third of the value had it not been contaminated.

"Q. Well, maybe I misunderstand you. If it, if it was not contaminated--strike that. Explain your answer, what you mean by the one-third.

"A. If--it decreased in value by one-third.

"Q. Because of this condition?

"A. Because of this condition."

On cross examination, Spanbauer claimed that his one-third depreciation value was based on his experience.

"Q. Where did you get your one-third depreciation value?

"A. Based on my experience."

He also admitted on cross examination that the $3,200 an acre sale of adjoining property, upon which he partially based his estimate of the value of his land if undamaged, was made on an as-is basis, i.e., the adjoining land was sold with fluoride contamination. However, there was testimony indicating that the sale was made to a church, and the existence or non-existence of fluoride contamination was irrelevant to such a buyer.

The other person to testify on the amount of permanent damage caused by fluoride contamination was Charles Thompson, an area realtor. Viewing his testimony most favorably to Spanbauer, as we must, Thompson's testimony indicates that the land could no longer be used for a cow/calf operation. Thompson admitted that there was some damage to the land and estimated it to be between 0% and 10%. Thompson also testified of the existence of various comparable sales within the area. These comparable sales, which Thompson testified had to be adjusted either up or down to compare to Spanbauer's property, depending on the condition of the land itself, ranged in price from $1,500 an acre to $6,000 an acre.

Appellants present numerous reasons why the testimony presented does not support the jury verdict. Initially we note that there is no issue raised concerning the trial court's ruling as to the applicable statute of limitations. The trial court applied I.C. § 5-224, a four-year statute of limitations, and instructed the jury that the plaintiff had to prove "a decrease in the fair market value of the plaintiff's land between October 27, 1976, and October 27, 1980 ...." Neither party challenges the application of I.C. § 5-224 to this case or the trial court's instructions. See Woodland v. Lyon, 78 Idaho 79, 298 P.2d 380 (1956).

The measure of damages recoverable for permanent injury to land is the diminution in market value of the land. This rule is often stated as the difference in the market value of the land before the injury, and the market value of the land after the injury. See Smith v. Big Lost River Irr. Dist., 83 Idaho 374, 364 P.2d 146 (1961). Because of the application of the four-year statute of limitations, Spanbauer was required to prove what damage had occurred to his land between October, 1976, and October, 1980, and also that the market value of his land diminished during this same period. In this respect, there was a complete failure of proof. Spanbauer's testimony dealt only with the value of his property, at the time of trial, with and without contamination. There was an absence of testimony concerning the value of the land before the contamination. The testimony was that the contamination had begun some thirty years before trial of this case. Since the contamination of Spanbauer's land began before October, 1976, it would not have been possible for Spanbauer to attempt to prove the value of the land...