Tuttle v. Church

• Decision Date: 21 December 1892
• Citation: 53 F. 422
• Parties: TUTTLE et ux. v. CHURCH et al.
• Court: U.S. District Court — District of Rhode Island

53 F. 422

TUTTLE et ux. v. CHURCH et al.

United States Circuit Court, D. Rhode Island.

December 21, 1892

Patrick J. Galen, Benjamin Barker, Jr., and Arnold Green, for complainants.

Miner &amp Roelker, for defendants.

COLT Circuit Judge.

This bill in equity is brought to enjoin the defendants from maintaining an alleged nuisance. The defendants, under the firm name of Joseph Church & Co., are engaged in the business of expressing oil from fish, and the manufacture of fertilizers from fish, in the town of Portsmouth, R.I. The plaintiff Cornelia S. Tuttle, wife of the coplaintiff, Elias A. Tuttle is the owner of a dwelling house situated a mile and a half in a southerly direction from the defendants' works, in the adjacent town of Tiverton, where she and her husband are accustomed to spend the summer months. It is contended that the defendants' factory emits strong and offensive odors and smoke, which blow over and through the plaintiffs' dwelling house, thereby corrupting the air; that the matter from the factory pollutes the waters of Seaconnet river in the vicinity, and of Narragansett bay in proximity thereto thereby destroying and injuring the edible quality of the shellfish; that such pollution prevents the full, free, and comfortable use of these waters for bathing, fishing, sailing, and other purposes; that the corruption of the air and water is deleterious to the health, and destructive of the comfortable and healthful use of the plaintiffs' premises, and that it diminishes their value, and the power to rent the same. These allegations the defendants deny.

It appears that works for expressing oil from fish have been in continuous operation on their present site for about 30 years, and that the defendants purchased them 12 years ago. They value the plant, including the boats, at more than $300,000, and they have spent about $90,000 in improvements since the plaintiffs have occupied their present residence. They give employment to about 450 persons. The plaintiffs' property cost them, with improvements, $2,750, and they have offered to sell the place for $3,500. They have lived in Tiverton during the summer months for the past 13 years. They have occupied their present house since 1882, and for five years prior to that time they lived in a house one half a mile nearer the works of the defendants. During all these years they made no complaint until the present suit was brought. The plaintiff Elias A. Tuttle admits that this suit was begun at the request of Benjamin Barker, Jr., one of the counsel of record in the case, in order that it might be brought in the United States court. It seems that Barker's father had previously had a quarrel with the firm of William J. Brightman & Co., who carry on the same kind of business as Church & Co., and who are defendants in another suit similar to this. Both suits were entered the same day, the same testimony was used by agreement in both cases, and they were heard together.

The quarrel between the elder Barker and Brightman & Co. was over a road or private passway near the latter's works, and, in the suit which followed, Barker was beaten. He subsequently made threats that he would follow Brightman & Co. and prove their works a nuisance, and that to do this it was necessary to bring suit also against Church & Co. Mr. Barker, Sr., has been present at the various hearings before the examiner, instructing counsel as to the witnesses, and generally directing these cases. He has also furnished money to carry them on. In March, 1891, his son wrote to George Alexander, of Baltimore, Md., who owns real estate in Tiverton, urging him to bring suit against the fish works there as a nuisance. Subsequently an action at law was entered in this court by Alexander against the defendants. The fish used in this manufacture are the menhaden. The process of manufacture as at present conducted is as follows: The fish are hoisted from the holds of the vessels to the pens, which are elevated boxes above the wharf. From these pens they are carried by a runway to the tanks, where they are cooked in fresh water from 30 to 50 minutes. After the fish have been boiled, the water is drained from the vats. They are then placed in adjoining compressers, and subjected to great hydraulic pressure, and the oil expressed therefrom runs into barrels. The fish scrap remaining in the compressers is then dried by exposure to the sun, or treated with sulphuric acid, which prevents decomposition. This scrap is then deposited in storehouses, to be sold for fertilizing purposes. The water from the vats in which the fish are boiled is drawn off and run through a series of settling basins or tubs. It is subjected to heat, when the oil rises to the top, and is skimmed off, and the nitrogenous matter sinks to the bottom. This operation is repeated until all the oil and other matter are taken from the water, which then runs into the Seaconnet river. About the time of the commencement of this suit the defendants made a contract to sell this waste water to the Phospho-Ammonia Company, who have a factory near the works, and the delivery of the water began as early as the commencement of the year 1891. During the winter of 1888 and 1889, when there was on hand large quantities of wet acid fish, the defendants ran an artificial dryer, which consists of cylinders into which the fish are thrown, and around which a fire is built. The dryer was also run part of the time during the winter of 1889 and 1890, but since the spring of 1890 its use has been discontinued, unless the wind blows the smoke off shore and away from the plaintiffs' dwelling, excepting on one occasion, when the wind suddenly shifted, and then the work was stopped. Owing to improved facilities in the handling and cooking of the fish, and the treatment of the scrap or pumice with acid, the better disposition of the waste water, the discontinuance of the use of the dryer except as already described, and the general cleanliness about the works as compared with what formerly existed, the offensive smells have decreased the past few years. Formerly the fish, if the catch was good, would remain for some days piled up in a heap at the works, while now, owing to the increased facilities for boiling, a more speedy disposition can be made of them. Daniel Church, the owner of the works, testifies that the capacity for handling fish has increased the past three years 50 per cent., while there is not much difference, if any, in the amount of the catch. The works have a capacity to handle 12,000 barrel a day, and there are not many days in the year when the catch exceeds 5,000 barrels. He admits, however, that in the cooking of fish a couple of days old, caught in the months of July and August, a smell is inevitable, and also that the dryer makes an offensive odor. He says the works must shut down if the defendants are enjoined from sending out such odors as are now emitted. Until recent years it was the custom of the neighboring farmers to purchase scrap for fertilizing purposes. This was spread upon the land, and caused an offensive smell, but this has been discontinued, owing to the high price of scrap.

The plaintiffs seek to prove the defendants' works a nuisance on three grounds: First, because they have suffered discomfort in their dwelling by reason of the smells and smoke from the defendants' works; second, because they have been deprived of the pleasure of boating, bathing, and fishing in Seaconnet river and Narragansett bay from the pollution of these waters; third, because in consequence of these things the value of their property has diminished.

The plaintiffs have introduced 18 witnesses and the defendants 80. It is claimed that some of these witnesses on both sides may be said to be interested, and, therefore, not free from bias. The record shows that the Barkers are the real instigators of this suit, and one half of the plaintiffs' witnesses are connections or friends of the Barker family, or have been employed by them professionally or otherwise, or were present to testify at their request. So with respect to defendants' witnesses it may be said that perhaps 20 have been at some time employed by the defendants, or are engaged in occupations that make them more or less interested. While the number of witnesses, taken by itself, does not necessarily prove a given fact, if opposed by a smaller number, because credibility, interest, knowledge, and intelligence are to be considered, still it cannot be denied that in this case the defendants have brought forward a mass of testimony which, taken altogether, has not been met by the plaintiffs, either with respect to weight or number. As to the point that the plaintiffs' property has declined in value by reason of the operation of these fish works, this is not proved by the evidence, but, on the contrary, it is shown that the tendency of values in real estate in Tiverton has been upwards, and that from 100 to 150 houses have been built during the past nine years.

With respect to the pollution of the waters in the vicinity, the preponderance of testimony is decidedly with the defendants. It is true that during the summer of 1888, by reason of an accident caused by overloading the fish pen, it broke away, and a large quantity of fish and oil escaped into the waters of Seaconnet river and Narragansett bay, and, in consequence, for several weeks the surface of the water was covered with oil and scum, and deposits were left on the shores. This occurrence is not denied, but that there is any general contamination of these waters caused by defendants' works, rendering them unfit for yachting, fishing, and bathing, and other purposes, is not sustained by the evidence.

If the plaintiffs are entitled to an injunction it must be...