United Verde Extension Mining Co. v. Ralston

• Decision Date: 18 February 1931
• Docket Number: Civil 2924
• Citation: 296 P. 262,37 Ariz. 554
• Parties: UNITED VERDE EXTENSION MINING COMPANY, a Corporation, Appellant, v. JOHN F. RALSTON and ELMA E. RALSTON, His Wife, Appellees
• Court: Arizona Supreme Court

296 P. 262

37 Ariz. 554

UNITED VERDE EXTENSION MINING COMPANY, a Corporation, Appellant, v. JOHN F. RALSTON and ELMA E. RALSTON, His Wife, Appellees

Civil No. 2924

Supreme Court of Arizona

February 18, 1931

APPEAL from a judgment of the Superior Court of the County of Yavapai. M. T. Phelps, Judge. Judgment affirmed.

Messrs Cornick & Crable, for Appellant.

Messrs O'Sullivan & Morgan and Mr. Louis H. Bunte, for Appellees.

OPINION

McALISTER, C. J.

This action was instituted in December, 1927, by John F. Ralston and Elma E. Ralston, his wife, to recover of the United Verde Extension Mining Company damages for the loss of crops and the rental value of certain lands, and from a judgment in their favor entered upon the verdict of a jury the defendant appeals.

The plaintiffs are the owners of 160 acres of land situated on the Verde River about nine miles southeast of a smelter operated by defendant and during 1926 and 1927 and for many years prior thereto were engaged in farming and stock-raising and in connection therewith cultivating or leasing for cultivation about forty-five acres of said land. It appears that in 1926 they planted to corn, melons, onions, beets etc., twenty-three acres of this land and properly irrigated and cared for the same, but that throughout the year, particularly the growing season thereof and the period when the crops were approaching maturity and exceeded in value $1,300, the defendant discharged daily from its smelter near the town of Clemenceau, Yavapai county, Arizona, into the pure air and atmosphere immense quantities of noxious gas, fumes and smoke containing great quantities of sulphur and other poisonous ingredients which were carried by the wind currents to and deposited upon the premises above described and which so poisoned and injured the plants and crops growing thereon as to render them valueless.

It is alleged as a second cause of action that during 1927 the plaintiffs could have farmed or rented this land at a net profit of $800 had it not been that the defendant's smelter was discharging said gas and smoke which would have poisoned and destroyed any crops planted thereon and that in consequence of this they were prevented in 1927 from either farming or leasing for this purpose said lands, and hence they lost all income from farming operations thereon.

It is alleged as a third cause of action that during 1926 and 1927 and for many years prior thereto plaintiffs pastured about 200 head of cattle on that portion of the land above mentioned not devoted to farming and other lands adjacent thereto held by them under lease or permit from the United States; that these lands were sufficient in extent and quality to pasture and feed such stock the year around had it not been that the poisonous gas and smoke which the defendant's smelter discharged so damaged the grasses, herbage and foliage growing thereon that they became unfit for food for livestock and so reduced the productiveness of said land for pasturage purposes that they would not sustain 200 head of cattle, and that in consequence thereof plaintiffs were forced to feed from 50 to 70 head of said stock during the winters of 1926 and 1927 at a loss of one thousand dollars.

The complaint contains eight other counts but each of them is for damages which, it is alleged, the gas and smoke from defendant's smelter caused some other land owner along the Verde River to suffer in 1926 and 1927, the claim for which was assigned to plaintiffs. Four of these counts, however, were dismissed by the court, and the case heard on the remaining five. The jury returned a verdict for plaintiffs on each count and it is the judgment rendered thereon that the defendant seeks by this appeal to reverse.

Numerous errors are assigned and several of them contain various subheads, but all of these are discussed by defendant under five or six propositions of law. It is first urged that there was a misjoinder of causes of action and parties plaintiff in that the action by plaintiffs is for injuries alleged to have been suffered by the, while the others are for injuries to their assignors. Each of these counts covers separate and distinct property and neither the plaintiffs nor their assignors had any interest whatever either in any of the land described in the complaint except their own or the damages suffered by anyone else other than themselves. Hence, no one of them could have been joined as individual plaintiffs with John F. Ralston and Elma E. Ralston. Bancroft's Code Pleading, par. 142, p. 257; Creer et al. v. Bancroft Land & Irrigation Co., 13 Idaho 407, 90 P. 228; St. Louis & S.F.R. Co. v. Dickerson, 29 Okl. 386, 118 P. 140. But this does not mean, as the defendant contends, that the plaintiffs as assignees of separate causes of action growing out of damage to the lands of their assignors, all of the same character and against the same defendant, cannot, upon the theory that they are suing in a dual capacity, that is, individually and as trustees of the assignors be joined in the same complaint with themselves as individuals. If it did, the contention would be sound, for plaintiffs cannot sue in one count as representatives and in another in their personal character. Pomeroy's Code Remedies, 5th ed., par. 603, p. 978; Morton v. Western Union Tel. Co., 130 N.C. 299, 41 S.E. 484. But they are suing as assignees of the causes of action described in counts 2 to 9 inclusive, and, therefore, as the legal owners thereof, not as representatives of their assignors, and this makes them the real parties in interest on these counts and renders the joining of such counts and their individual cause of action in the one complaint proper. And even though there was at the time of the assignment a contemporaneous collateral agreement that the assignees were to account to the assignors for the entire proceeds of the claims assigned and sued on there would still be no misjoinder of either plaintiffs or causes of action. Pomeroy's Code Remedies, par. 70, p. 106. This is in accord with paragraph 3727, Revised Code of 1928, and the decisions of this court holding that the assignee of a chose in action may bring suit thereon. See Mosher v. Bellas, 33 Ariz. 147, 264 P. 468; Leon v. Citizens' Building & Loan Assn., 14 Ariz. 294, Ann. Cas. 1914D 1151, 127 P. 721. And the failure to make the assignors plaintiffs did not, as argued, constitute a nonjoinder of parties, because an assignee may bring suit on an assigned claim in his own name. Deatsch v. Fairfield, 27 Ariz. 387, 38 A.L.R. 651, 233 P. 887; Sroufe v. Soto Bros. & Co., 5 Ariz. 10, 43 P. 221.

The defendant contends that the causes of action alleging damages to the property of others are not assignable, and hence, that the assignees cannot maintain actions thereon. This court held in Deatsch v. Fairfield, supra, that whether a chose in action is assignable is determined by the question of survivorship and there can be no doubt but that the action for damages which accrued to each of the assignors would survive, for, under section 3725, Revised Code of 1928, "actions . . . for any right attached, or growing out of" lands "or for any injury or damage done thereto" may be instituted by an executor or administrator, the same as they could by his testator or intestate. The Circuit Court of Appeals for the Ninth Circuit had before it this identical question in United Verde Copper Co. v. Jordan, 14 F.2d 299, 301, and in disposing of it used the following language, which is a correct statement of the law:

"The next inquiry is whether plaintiffs, as assignees, could recover under the counts alleging damages to the properties of others. We think they could. In Deatsch v. Fairfield, 27 Ariz. 387, 38 A.L.R. 651, 233 P. 887, the court said that the question of survivorship of a chose in action is the test of assignability. Under paragraph 398, Arizona Civil Code, suits for recovery of damages or for any injury or damage done to lands may be instituted by executors, administrators, or guardians in like manner as they could have been by their testators or intestates. Paragraph 968, p. 447, Arizona Civil Code, provides that executors or administrators may maintain action for trespass committed on real estate of the decedent in his lifetime. Our opinion is that by the statutes of the state a cause of action which arises from a tort to real property or injuries to a decedent's estate, by which the value of the estate is lessened, survives, and that the general rule that such cause of action is capable of assignment obtains. 2 R.C.L. 613; Ingersoll v. Gourley, 72 Wash. 462, 130 P. 743; Bultman v. Atlantic Coast R. Co., 103 S.C. 512, 88 S.E. 279."

The sufficiency of the complaint, and particularly of the counts based on the assigned claims and of the second cause of action in the first count, to constitute causes of action against the defendant is attacked. In the first cause of action of the first count plaintiffs aver that they are the owners of lands situated about nine miles southeast of defendant's smelter and that during 1926 this smelter discharged large quantities of poisonous gas and smoke which the wind currents carried to these lands and deposited upon them and that they (the gas and smoke) so poisoned and injured the crops growing thereon as to render them (crops) valueless. The theory upon which the complaint is based is that the operation of the smelter in so far as it affects the lands in question, is a nuisance per se, but notwithstanding this the right to observance of due care precaution and vigilance would have averted the damage. Operating a smelter is a perfectly lawful business and necessarily not a nuisance per se, but notwithstanding this the right to operate one, like the right to pursue any...