Thackery v. Union Portland Cement Co.

• Decision Date: 04 December 1924
• Docket Number: 4175
• Court: Utah Supreme Court
• Parties: THACKERY v. UNION PORTLAND CEMENT CO

231 P. 813

64 Utah 437

THACKERY v. UNION PORTLAND CEMENT CO

No. 4175

Supreme Court of Utah

December 4, 1924

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action by George R. Thackery against the Union Portland Cement Company. Judgment for plaintiff, and defendant appeals, and plaintiff appealed and filed cross-assignments of error.

AFFIRMED.

Henderson & Johnson, of Ogden, for appellant.

J. C Davis, S. P. Dobbs, and Arthur Woolley, all of Ogden, for respondent.

GIDEON J. WEBER, C. J., and FRICK and CHERRY, JJ., and WOOLLEY, District Judge, concurring. THURMAN, J., did not participate.

OPINION

GIDEON, J.

The appellant (defendant below) owns and operates a cement plant located in Weber Canyon, Morgan county, in this state. The respondent and cross-appellant (plaintiff below) owns a farm of about 100 acres located in the immediate vicinity of the cement plant.

It is alleged in the complaint that there are located upon respondent's land a dwelling house and other buildings, including corrals for feeding stock. It is also alleged that the appellant had been operating its cement plant at the same place since the year 1909, and was so operating it at the date of the bringing of the action, August 23, 1919. The basis of respondent's claim for damages in injury caused by the appellant in operating its cement plant, and by permitting small particles of cement, dust, and smoke to escape and pass from the appellant's plant and to fall upon respondent's premises. Statements in the complaint claim injury to grown and growing crops and to hay stored on the premises, and that the dust and smoke rendered the place undesirable for a home for respondent and his family, thereby depreciating the value of said premises and damaging the crops grown and growing thereon and the live stock fed upon the premises.

The appellant demurred to the complaint. One of the grounds of demurrer alleged was that the cause of action was barred by the statute of limitations. The court overruled the demurred. An answer was filed, and a trial was had before the court and a jury. Judgment was rendered against appellant. It appeals. Respondent also appeals, and has filed cross-assignments of error.

In appellant's answer the statute of limitations is pleaded and relied upon as a defense to the action. The prayer of the complaint is for (a) an order restraining the appellant from further operating its plant, and (b) for damages. At the trial respondent abandoned any claim for an injunction restraining the operation of the plant.

The only error argued by appellant is the ruling of the court in holding that the cause of action is not barred by the statute of limitations. At the oral argument counsel for the appellant stated that, if this court is of the opinion that the action is not barred by the statute of limitations, he did not ask a reversal of the judgment.

Much of respondent's testimony was directed to the depreciation of the market value of his premises caused by appellant permitting smoke and dust to pass over and settle thereon. In other words, testimony was offered to establish the difference between the market value of the premises if the dust and smoke had not been permitted to settle upon them and what that value is with the dust and smoke allowed to be deposited on the farm from appellant's plant.

The trial court submitted to the jury only the question of the depreciation of the market value, and its verdict, of necessity, is based upon what it found to be the depreciation in value of respondent's premises by reason of the acts of appellant as above indicated.

It is shown by the testimony that the annoyance and discomfort to the respondent's premises is not continuous. If the plant is not in operation, necessarily no dust or smoke will emanate from it or pass over respondent's land. If the wind is not blowing toward respondent's land, the dust and smoke will be carried in another direction. The extent of injury or annoyance at any particular time is dependent largely upon the extent to which the plant is in operation and the condition of the elements, particularly direction of the wind, and upon other causes. The nuisance or annoyance created by the plant of appellant cannot therefore be said to be continuing. It is recurrent, dependent upon the causes indicated.

Subdivision 2, § 6468, Comp. Laws Utah 1917, is relied upon by appellant. That subdivision is as follows: "An action for waste or trespass of real property must be commenced within three years."

The acts of appellant were in no sense a trespass upon the premises of respondent as the term "trespass" has been interpreted by this court in O'Neill v. Railroad, 38 Utah 475, 114 P. 127. The court in that case was considering the subdivision just quoted. It is not claimed that appellant by any act entered upon the close of the respondent or in any way interfered with the physical occupancy of the premises by the respondent. The cause or right of action cannot therefore be said to have come into existence at any particular moment of time. Permitting the smoke and dust to emanate from appellant's plant and fall upon the premises of respondent was a recurring nuisance, and a right of action necessarily could be founded upon such recurring nuisance if injury resulted.

It is, however, insisted by appellant that, if the cause of action is not barred by the provisions of Comp. Laws Utah 1917, § 6468, it is barred by the provisions of section 6474 of the same compilation. That section provides that "an action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued." The cause of the injury complained of in this action, as has been pointed out, is not a trespass upon the premises of respondent. It is more in the nature of a recurring nuisance. In a note in 3 A. L. R., at page 312, in a definition of what constitutes a nuisance, the annotator says: "Any dust which substantially interferes with the comfortable enjoyment of adjacent premises constitutes a nuisance." Numerous cases are cited supporting that statement of the annotator. While there is some conflict in the authorities, it has been held by the great weight of authority that in the determination of whether an action is barred by the statute of limitations the permanency and continuance of the nuisance or whether it is a temporary or recurring one is controlling. That is true, however substantial and permanent the industry causing the nuisance, and even though the nuisance complained of is continuing in the sense that it will and does occur at intervals in like manner, and therefore cannot be said to be uninterruptedly continuing in its nature. Bartlett v. Grasselli Chemical Co., 92 W.Va. 445, 115 S.E. 451, 27 A. L. R. 54; Trinity Portland Cement Co. v. Horton (Tex. Civ. App.) 214 S.W. 510. The second headnote to Bartlett v. Grasselli Chemical Co., supra, reads:

"As a general rule, the element of permanency of cause of injury is lacking in cases of public and private nuisances working such injury, because, in such cases, the nuisance constituting the cause from which the injury and damages arise is abatable, both by acts of the parties, and especially of the wrongdoer, and by judicial process."

The fourth headnote in Trinity Portland Cement Co. v. Horton, supra, reads:

"Though plaintiffs delayed for ten years in suing for damages caused by dust which, when the wind was in certain directions, was carried from defendant's cement...