Wales Trucking Co. v. Stallcup

• Decision Date: 24 November 1971
• Docket Number: No. B--2718,B--2718
• Citation: 2 Envtl.L.Rep. 20,3 ERC 1678,474 S.W.2d 184
• Parties: , 2 Envtl. L. Rep. 20,142 WALES TRUCKING COMPANY, Petitioner, v. Louis STALLCUP et al., Respondents.
• Court: Texas Supreme Court

Page 184

474 S.W.2d 184

3 ERC 1678, 2 Envtl. L. Rep. 20,142

WALES TRUCKING COMPANY, Petitioner, v. Louis STALLCUP et al., Respondents.

No. B--2718.

Supreme Court of Texas.

Nov. 24, 1971.

Rehearing Denied Dec. 22, 1971.

Fillmore, Lambert, Farabee & Purtle, Larry Lambert, Wichita Falls, for petitioner.

Short & Helton, R. M. Helton, Wichita Falls, for respondents.

GREENHILL, Justice.

This is a suit for damages for an alleged nuisance arising out of a lawful, non-negligent use of a public highway. The City of Wichita Falls, needing additional fresh water, was building a pipeline from a lake to the city. In making any trips to deliver the pipe to the site of the construction, the trucks of the defendant truck company, while traveling an unimproved county road, caused dust which was offensive to the plaintiffs. Trial was to a jury resulting in a judgment for the plaintiffs. The court of civil appeals affirmed. 465 S.W.2d 444. We reverse.

The beckground is that the city employed the A & A Construction Company to build the water pipeline from Lake Arrowhead to a city plant, a distance of some 13 miles. The roadway in question was used as an access to the pipeline right-of-way during about five miles of its construction.

The concrete pipe was manufactured and sold by the Gifford-Hill Company in Grand Prairie. The defendant, Wales Trucking Company, was employed as a subcontractor to transport the pipe to the job. Several individuals owned and drove their own trucks, and Wales leased these trucks (with owner-drivers) to deliver the pipe. As relevant here, all were under the control of Wales. The trucks varied in size, but all were duly licensed and were within the load limits fixed by law for the deliveries over public highways.

The house of the plaintiffs, Mr. and Mrs. Stallcup, was on some acreage which adjoined a public county road. Their house was set back some 75 feet. The road is described as 'a typical unpaved county road,' 'a dirt road,' a road with a gravel surface, 'Kind of road gravel material.' Some red gravel had been put on it by the county because in wet weather, the school bus could not stay on the road. No load limit was prescribed for the use of the road which was publicly owned and maintained. The area was rural and thinly populated. The road ultimately ended on a ranch some distance past the plaintiffs' house. Mr. Stallcup testified that the road was little used before the pipeline project began.

Then, for about four months during the summer, the road was used by the defendant's trucks delivering pipe for a segment of the water pipeline. The pipe was laid in a bed of sand, and the same road was also used other people delivering sand in heavy trucks to the pipeline right-of-way. The road was used as well by inspectors, engineers, laborers and other employees of the general contractor, and by some members of the general public. But the evidence from the plaintiffs is that the dust problem was really caused by the trucks transporting the heavy pipe, and the Wales Trucking Company is the sole defendant.

The pipe being delivered was in 16-foot lengths and was 54 inches in diameter. Most, 80 to 90 per cent, of the trucks leased by the defendant Wales were of such size as to carry two lengths of pipe; and when loaded, they weighed about 58,000 pounds. A few were heavier and could carry three. Because of the distance from Grand Prairie to the site, and because of a ruling of the ICC that these trucks could be driven only 10 hours per day, the general rule was that each truck and driver could make only one delivery per day. Over the period of the four months, approximately 825 truck loads were delivered; and, upon unloading the pipe, the 825 trucks returned past the plaintiffs' house. As set out in the opinion of the court of civil appeals, the number of pipe deliveries per day varied from zero to 20, depending upon the weather and production schedule.

The trucks bringing sand for the pipeline were of comparable size (58,000 pounds loaded); and the sand trucks made about one trip to three for the pipe trucks. But no complaint is made of their operations.

Apparently, the delivery of the pipe to this sector of the project began in the latter part of April. Around the first of May, the plaintiff Stallcup called the defendant company to complain about the dust caused by the passing trucks. He suggested that the road needed to be oiled or something. Defendant's superintendent, Malmay, in turn called the general contractor, A & A Construction Company. Malmay considered that the right-of-way for delivery of the pipe was the general contractor's responsibility. Malmay then went out to visit Stallcup and discussed the matter with him. Malmay said he would ask the truck drivers to slow down, and he testified that he did so.

Then Malmay found an alternate route for the delivery of the pipe. It was a paved county road, and its use completely avoided driving by the plaintiffs' house. So defendant's trucks began immediately to use the alternate paved route. But a county commissioner considered that the trucks were damaging the paved road. So after a couple of weeks, the county commissioners enacted an order prescribing a load limit on the paved road which precluded its use by the defendant's trucks. The commissioner testified that he sent the notice of the order to Gifford-Hill, the company who manufactured and sold the pipe. But the commissioner went out personally and stopped the defendant's trucks in their use of the paved road, and load limit signs were erected on the paved road.

After the two or three weeks' use of the paved road, the trucks went back to the unpaved road in front of the plaintiffs' house, the only road available. It is undisputed that the dust was severe, 'was like snow.' The exterior of plaintiffs' house was coated with it, and the roof was discolored red from the red dust. It was particularly troublesome to the plaintiffs' daughter who had a respiratory problem. The plaintiffs' house had central air conditioning, but they had to keep a fan going right near the daughter at night to give her plenty of air.

The road in question had no load limit and no particular speed limit. As set out in the opinion of the court of civil appeals, the defendant's trucks, when loaded, drove past the plaintiffs' house 25 to 30 miles per hour. On their return, empty, they drove 45 to 50 miles per hour.

As stated, the plaintiffs abandoned their grounds of recovery based upon any negligence. They concede in their brief in this Court that 'Wales used the Stallcup road nonnegligently,' and that 'in the use of the road, Wales violated no rule, regulation, statute, or custom.' The case was submitted ot the jury only upon the theory of nuisance. The jury found that the defendant's use of the road caused substantial amounts of dust to be deposited on the plaintiffs' property, and that 'such depositing of dust * * * was the result of a nuisance.' 'Nuisance' was defined to mean 'any Condition brought about by one party in the use of a public road, so unreasonable and excessive' that it necessarily caused injury, damage, harm or inconvenience to another party, taking into consideration the nature and use of the road, et cetera. The jury found that as a result of the nuisance, the plaintiffs lost temporary use of their house and suffered temporary discomfort; that the nuisance was continued after notice to the defendant, but that the defendant did not act with malice. Damages were fixed at $2,500 each for temporary personal discomfort and for temporary loss of enjoyment of the house.

As Prosser states, 'There is no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all men, and has been applied indiscriminately from an alarming advertisement to a cockroach baked in a pie.' Prosser, The Law of Torts (3rd ed. 1964) 592. ¹ There is a general agreement that it is incapable of any exact or comprehensive definition, and we shall attempt none here.

We are familiar with a substantial body of law which says that a nuisance may arise where the defendant carries on an abnormally dangerous activity, or where he conducts, on his property, an enterprise such as a carbon black plant, a stockyard, or slaughterhouse.

Harper & James classify this type of nuisance as '(3) a more or less continuous interference with the use and enjoyment of property by causing or permitting the escape of deleterious substances or things, such as smoke, odors, noises, etc.' ² Prosser observes that most of those cases (which have arisen where there is no violation of law or negligence, or 'nuisance without fault,') have been in equity and concerned the question of Future damage, 'so that the question is not really the nature of the defendant's original conduct but whether he shall be permitted to continue it.' Prosser, Nuisance Without Fault, 20 Texas Law Review 399 at 418 (1942).

And, where there is a permanent industrial plant which will continue to cause physical discomfort to people and damage to neighboring property, Harper & James explain as to damages that "Nuisance' has remained an isolated island of liability without fault and courts have resorted to 'nuisance' terminology to impose liability (in damages) when...