Watson v. Great Lakes Pipeline Co., No. 10781

• Decision Date: 15 December 1970
• Docket Number: No. 10781
• Citation: 182 N.W.2d 314,85 S.D. 310
• Parties: , 2 ERC 1207 Clair WATSON and Viola Watson, Plaintiffs and Respondents, v. GREAT LAKES PIPELINE COMPANY, a Corporation, and Williams Brothers Pipeline Company, a Corporation, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 314

182 N.W.2d 314

85 S.D. 310, 2 ERC 1207

Clair WATSON and Viola Watson, Plaintiffs and Respondents, v. GREAT LAKES PIPELINE COMPANY, a Corporation, and Williams Brothers Pipeline Company, a Corporation Defendants and Appellants.

No. 10781.

Supreme Court of South Dakota.

Dec. 15, 1970.

Milton Buechler, Lennox, George Weisensee, Sioux Falls, for plaintiffs and respondents.

Woods, Fuller, Shultz & Smith and Timothy J. Nimick and Davenport, Evans, Hurwitz & Smith and Robert Heege, Sioux Falls, for defendants and appellants.

BIEGELMEIER, Judge.

Plaintiffs brought this action for damages to their real estate which was platted into lots near the city limits of Sioux Falls. Their claim was that defendants, in operating their piepline and oil tank storage business near plaintiffs' premises, had negligently discharged petroleum products in such quantities as to constitute a public nuisance and as a result did contaminate and pollute the waters under plaintiffs' property. Trial to a jury resulted in a verdict for plaintiffs from which defendants appeal. Defendants' argument for reversal is based on the denial of motions for directed verdicts and judgment n.o.v.

The evidence including an aerial photograph and plats, shows Watson's Subdivision to be about 1000 by 1200 feet. It was platted into 49 tracts which will be referred to as lots. The lots on the west side of the subdivision front on Marion Road with Lots 1 through 10 numbered from the north end to the south end with a railroad as the south boundary. Immediately abutting these, with no intervening alley, are Lots 11 through 20; the other lots, with streets and drives, make up the subdivision. A 60-foot right-of-way for an underground pipeline ran from near the northeast corner diagonally across the subdivision to the southwest corner which defendants used to transport petroleum products to the pipeline terminal or tank farm which corners Watson's Subdivision on the west side of Marion Road and south of the railroad. On this are located many tanks, buildings and equipment to store its products and transfer them to large transport trucks.

Plaintiffs bought the 43-acre parcel in 1945 and built their house and drilled a well on the north Lot 1 in 1947. Over the next two or three years they sold several of the lots to the south fronting on Marion Road to persons who also built houses and drilled wells for water which they used for drinking and general household purposes. One owner had sufficient water from his well to irrigate his vegetable garden. The wells were from 25 to 48 feet deep. The terrain of the land was described as high at Lot 1 in the northwest corner and sloping down to the south and southeast; it was higher again in the northeast corner leaving a draw near the center sloping to the southeast.

Plaintiffs' evidence was that some petroleum products were spilled or discharged from the pipeline or loading operations at the tank terminal; some of these were run into a 25-foot pit; others were washed or permitted to escape from the tank farm premises through run-off pipes into the ditch along Marion Road and adjacent land; that no vegetation grew in the ditch and the soil on the east side of Marion Road across from the terminal ten feet down contained a black, oily substance in it. There was much evidence of the depth of the wells, the water levels, sand, rock and clay strata. Several owners of the lots in Watson's Subdivision testified that, commencing with Lot 9 in the southwest corner across Marion Road from and cornering defendants' tract in 1953, and then slowly over a period of years, north to Lot 1 in 1960, the water from their wells severally became polluted or contaminated with a substance that smelled and tasted like gasoline and became unfit for drinking. Eight wells had been sunk by homeowners on the several described lots. ¹ In 1956 the first well on Lot 4 became contaminated or polluted with the gasoline smell and taste; in 1957 the owner dug a new one some distance northwest which produced potable water for a time, but six months later it also acquired the gasoline taint. There was evidence by the several residents and homeowners the water had a little color film on it, was obnoxious to taste and that a person could not drink it or brew coffee with it. Water for these purposes had to be obtained from town and taken to their homes in large plastic jugs. Defendant Great Lakes put a charcoal filter in the well of one owner, but it did not work for long after it was installed.

Defendants admit the evidence of plaintiffs was to the effect that there was some contamination to the wells on Lots 1 through 9 on the west side of the subdivision by a substance that smelled and tasted like gasoline. They then assert this odor and taste were of an unsaturated hydrocarbon nature and not from gasoline or petroleum products. To support this they cite the evidence of their witness Amstutz, a consulting engineer specializing in water pollution problems. He testified he visited the Watson home and found a hydrocarbon odor in the Watson water as well as in wells of houses nearby and took samples of the water for testing. He also gave an extended explanation of oils, gases, and saturated and unsaturated hydrocarbons; that gasoline, kerosene, fuel and diesel oil are made up from heavier or saturated hydrocarbons.

While plaintiffs' complaint alleged both negligence and nuisance, the parties have argued the appeal on the public nuisance theory. Our statutes provide:

SDCL 21--10--1. 'A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;

(4) In any way renders other persons insecure in life, or in the use of property.'

SDCL 21--10--3. 'A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.'

In considering defendants' claim the evidence is insufficient to justify the jury verdict and ensuing judgment, we must view the record most favorably to the verdict. This includes the resolution of all conflicts in the evidence and reasonable inferences which may be drawn therefrom. Vander Vorste v. Northwestern National Bank, 81 S.D. 566, 138 N.W.2d 411; Northwestern Bell Telephone Co. v. Henry Carlson Co., 1969, 83 S.D. 664, 165 N.W.2d 346. ² Defendants urge the evidence is insufficient to show causation of damage, if any, to Lots 11 through 49, claiming the only evidence of pollution was to Lots 1 through 9 not involved in this action.

Plaintiffs and defendants each drilled three 'test' wells on six of the lots from 11 through 49 involved in this action. None of these six 'test' wells showed any evidence of petroleum pollution. Defendants claiming that the only evidence of such pollution was to the wells on Lots 1 through 9, the evidence is thus insufficient to show the oil spillage proximately caused damage to Lots 11 through 49 included in this action. Plaintiffs, in answer, point out the 'test' wells which were sunk were new wells which had never been pumped; that gradually, one by one, beginning with Lot 9 near the southwest corner of Watson's Subdivision cornering defendants' tank farm, the wells became polluted only after months and years of pumping and from this argue the water in the same sand stratum shown to be in varying depths in some of the adjoining Lots 11 through 49 is polluted and pumping wells would show this in time. This, we believe, is an inference which the jury, as the trier of facts, could properly reach from the evidence. See Midwest Oil Co. v. Aberdeen, 69 S.D. 343, 351, 10 N.W.2d 701.

Contrary to defendants' version of the evidence, plaintiffs refer to the record as to the well on Lot 16, one of the lots included in this action. Considering that evidence in the light most favorable to plaintiffs, as the jury did, and to the verdict, as we must, it appears that the well on Lot 16 was down to this 'sand and gravel bottom' and was contaminated (as one witness testified) as those in Lots 1 through 9 immediately west and adjacent to Lot 16.

On this question of causation, the court decisions on always different facts likewise differ. Whether there was causal connection between drying up of plaintiffs' springs and defendants' mining operations was before the court in Hornick v. Bethlehem Mines Corporation, 307 Pa. 264, 161 A. 75. Here, as in that appeal, the proof of plaintiffs' cause of action depends entirely upon circumstantial evidence, and whether plaintiffs were damaged by defendants' acts is entirely a matter of inference. The court wrote:

'If the administration of justice had to depend on demonstration by absolute proof, there would be few issues open to litigation, for such proof is rarely obtainable outside the realm of science. When a finding is a reasonable inference from the facts and conditions directly proved, it must be classed as legal evidence and not as a mere conjecture, surmise, or guess. In Gray v. Com., 101 Pa. 380, 47 Am.Rep. 733, Justice Paxson said: 'We are not jurors, and are not called upon to weigh the evidence * * * further than to say * * * whether there is sufficient evidence to submit to the jury upon a particular question of fact.' (Wigmore says * * *) 'The conclusions and tests of every day experience must constantly control the standards of legal logic." ³

Declaring circumstantial evidence was legal evidence, the court held that according to the tests of everyday experience, the court was justified in submitting the question of causation to the jury and the verdict was based on inference fairly deduced from the circumstantial evidence. If it be said there was opinion evidence the springs dried up because of the mining operations, one engineer who so testified also said no one knows what...