Swift & Co. v. Peoples Coal & Oil Co.

• Decision Date: 10 July 1936
• Citation: 186 A. 629,121 Conn. 579
• Parties: SWIFT & CO. v. PEOPLES COAL & OIL CO. et al.
• Court: Connecticut Supreme Court

186 A. 629

121 Conn. 579

SWIFT & CO. v. PEOPLES COAL & OIL CO. et al.

Supreme Court of Errors of Connecticut.

July 10, 1936

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Action by Swift & Company against the Peoples Coal & Oil Company and another, for an injunction restraining the continuance of a certain nuisance and for other relief. The case was tried to the court. From a judgment for defendants, plaintiff appeals.

Error and new trial ordered.

Richardson Bronson, of Waterbury (J. Warren Upson, of Waterbury, on the brief), for appellant.

John H. Cassidy and Mitchell G. Meyers, both of Waterbury, for appellees.

Argued before MALTBIE, C.J., and HINMAN, BANKS, BROWN, and JOHN RUFUS BOOTH, JJ.

MALTBIE, Chief Justice.

The plaintiff carries on a business a portion of which consists of the wholesale storage of sweet pickled meats in a large brick building situated upon premises owned by it in Waterbury. The building extends to the westerly line of the lot, and directly adjacent to it are premises owned by the defendant the Fulton Markets, Incorporated, and occupied by the defendant the Peoples Coal & Oil Company under a lease. In September, 1934, water and oil began to ooze through the floor of two refrigerating rooms in the basement of the plaintiff's building. The defendant oil company is engaged in the business of selling oil and gasoline and has upon its premises three tanks for the storage of fuel oil and kerosene of a capacity of 25,000 gallons, 10,000 gallons, and 7,500 gallons, respectively. The plaintiff brought this action against the two defendants seeking an injunction and damages, the gravamen of its complaint being that the oil coming into its basement was oil of the defendant oil company.

The trial court gave judgment for the defendants. Its memorandum of decision gave as its reasons for that decision that the oil of which the plaintiff complains reaches its building through subterranean streams or currents, and that the oil business on the defendants' premises had been conducted without negligence, stating that these two facts would of themselves absolve the defendants of any liability to the plaintiff. The rather long finding contains two paragraphs dealing with the question whether the oil came from the premises of the defendants. In one it is stated that the defendants' tanks were filled with oil, measured, sealed and allowed to remain for three days, and when unsealed, the oil was measured and the quantity found to be the same as when the tanks were filled; that no oil had leaked out or had been lost. In the other it is stated that the evidence was not preponderating as to the source of the oil; that the land was low, with a hill to the north on which is located the factory of the Lux Clock Company using oil, a dump where crankcase automobile oil had been deposited in large quantities, and a garage. If these findings stand, they justify the judgment for the defendants, and the correctness of the grounds of decision stated in the trial court's memorandum of decision becomes of no consequence.

As regards the first paragraph, in which it is stated that the tanks upon the defendants' premises had been tested and it had been found that no oil had leaked out or been lost, the witness who made the test stated upon cross-examination that under the method used a tank might have leaked as much as five gallons between the time when it was sealed for the test and when it was unsealed, stated by him to be a lapse of forty-three hours, without the test disclosing that fact. The finding of the trial court that the tanks had been tested and it had been found that no oil had leaked out cannot, therefore, be sustained.

The other paragraph of the finding, to the effect that the evidence was not preponderating as to the source of the oil, has required an extended examination of the evidence, which may be summarized as follows: The oil, beginning in September, 1934, came into the basement of the plaintiff's building at or near the base of the wall adjoining the defendants' premises. The largest of the defendant oil company's tanks has been used to store kerosene, the next was used at first for storing No. 2 fuel oil but this was later changed to No. 4, and the third has at all times been used to store No. 4 fuel oil. These tanks are located about fifty feet away from the plaintiff's building. To the northeast of the plaintiff's and defendants' premises the land rises at a sharp slope, and the land of the defendants gradually slopes from an area near the oil tanks toward the westerly wall of the plaintiff's building. The premises of the plaintiff and defendants are located in a low place, and water gathers there to such an extent that the water level is usually about a foot below the surface of the ground. That there was a considerable amount of free oil in the ground of the defendants' premises appears clearly, not only from the testimony of the plaintiff's witnesses, but that of a witness produced by the defendants who gave evidence that he had dug several holes there and they rapidly filled with water upon the top of which was a scum of oil. Anilin dye placed in a hole four and one-half feet deep sunk near the tanks on the defendants' premises appeared three or four days later in the cellar of the plaintiff's building, thus showing that water, at least, percolated from the land near the tanks into the cellar; an expert witness for the defendants testified, to be sure, that this dye, while it might show the direction in which water percolated, would not necessarily show that the oil percolated in the same direction, but a reading of his testimony indicates that in very large part his opinion was based upon the theory that if the water level on the premises was one foot below the surface of the ground, the oil, which would not mix with the water, would not be found at the depth of the floor of the basement of the plaintiff's building, a theory which is disproved by the fact found by the trial court and all but admitted by the defendants, that oil did in fact come into the floor of the cellar; and the other expert witness called by the defendants stated on cross-examination that the oil would probably follow the same path as the water.

The plaintiff offered the opinion evidence of a sanitary inspector of the city and a qualified expert that the oil in the cellar did come from the premises of the defendants, and also that of a member of the sanitary staff of the city who stated that his first conclusion had been to the same effect, but later he had come to doubt it, principally because the test applied to the defendant oil company's tanks showed no leakage of oil, a reason which, as we have stated, does not accord with the defendants' own evidence, and secondly because of the possibility of the oil coming from the factories of the Lux Clock Company, a matter of which we shall speak later. The defendants produced two expert witnesses who testified to the general effect that in their opinion the oil did not come from the defendants' premises, but both of whom admitted that free oil on the defendants' premises might get into the cellar of the plaintiff's building. The Lux Company did own property upon the slope to the northeast of the plaintiff's premises and had two oil tanks, one with a capacity of 5,000 gallons and the other 1,000 gallons; but the latter had not been put into use when the oil first appeared in the cellar of the plaintiff's building, and the former was about eight hundred feet away, had been subjected to a test for leakage and shown none, and had, moreover, been there for some years before the defendants' plant was established. There was testimony, also, that the slope near the Lux Company factory had been used for dumping refuse containing oil, that before the defendants' plant was established the land occupied by it had shown an oily condition, and that there were other possible sources which might have resulted in oil upon the surface of the ground. But these conditions had all been in existence for years before the oil appeared in the plaintiff's cellar and, as causes of that oil, had decreased rather than increased in effect.

The plaintiff offered the expert testimony of a chemist who had made a number of tests of the oil found in the cellar, oil taken from the defendants' tanks, and oil from those of the Lux Company, and upon the basis of these tests reached the opinion that the oil from the cellar was substantially similar to that from the defendants' tanks and not to that from the Lux Company tanks and came from the former; and he also testified that the oil might very well take the time between the installation of the defendants' tanks and the time it appeared in the cellar to work its way through the waterproofing of the cellar, evidence which was not in any way disputed. It is true that the defendants countered with the testimony of an expert witness who upon the basis of two tests, one by specific gravity and one by viscosity, of oil taken from the cellar and from the tanks of the defendant oil company, testified that the former could not have come from the tanks; but he admitted that the gravity of the oil from the cellar might have been affected by the fact that it had been in contact with waterproofing material; and the chemist for the plaintiff, called in rebuttal, testified that the viscosity test also showed a very large discrepancy in character between the oil from the cellar and that from the tanks of the Lux Company.

Viewing the testimony as a whole, it thus appears that there was in the soil of the defendants' property a considerable amount of oil which might continually be increased by a leakage from its tanks or from spillage in their...