Lahman v. Rocky Mountain Phosphate Co.

MR. JUSTICE CASTLES delivered the opinion of the court. This is an appeal from a judgment entered on a jury verdict .for defendant after motion for a new trial was denied. Plaintiffs are man and wife. They own a small ranch in Powell ■County upon which they operate a trailer court. On March 29, 1968, they filed an action to recover damages for injury to their person and property, and for loss of profits to their business •caused by smoke and fluoride effluents from defendant’s phosphate manufacturing company. Defendant, Rocky Mountain Phosphate Company, produces ■an animal feed supplement from phosphate rock. In August 1963, defendant commenced operations in the Garrison area at its plant located about 1600 feet north and west of the plaintiffs ’ trailer court and residence. Soon after defendant began operations, complaints were made by plaintiffs and other residents of the Garrison area. The complaints were based mostly on the smoke which produced a stinging sensation on contact and on the odor of the effluents. Several injunctive hearings and trials were held and the State Board of Health became a participant. In March 1965, defendant adopted — 30 — several techniques to eliminate the basis for complaints and converted its manufacturing process from a sulphuric acid method! to a soda-ash process. This eliminated all effluents of sulphuricacid, including the noxious odor and the stinging effect which, was caused by a type of sulphuric acid. The volume of smoke was drastically reduced. Scrubbing systems were installed with, varying degrees of success. Finally, in 1968, a “Teller” scrubbing system was installed which system reduced the amount of fluorides discharged into the air from approximately 4,000’ pounds per day in 1963 to less than 10 pounds, and has eliminated the discharge of smoke except for a negligible plume. After defendant had been in operation for some four and! one-half years, and after three years of marked reduction in the discharge of nuisance effluents, plaintiffs filed their action in which they claimed damages for personal injury, loss of enjoyment of their property, and loss of business. Jury trial was had resulting in a verdict for defendant. The issues on appeal are four in number. The first two deal with the statute of limitations. (1) Whether the trial court erred in permitting defendant to amend its answer whereby the statute of limitations and laches were pleaded. (2) The trial court erred in instructing the jury that the two-year statute, section 93-2607, B.C.M.1947, as applied to the property damages, applies. Plaintiffs urge that section 93-2613, B.C.M.1947, a five-year statute, applies or none at all. As to issue 1, plaintiffs were notified four days previous to trial of defendant’s intention to amend; and, when the motion was made on the day of trial counsel at first objected, then advised the court that plaintiffs would have no objection if they were allowed to present evidence showing progression of damages. The trial court allowed plaintiffs to put in evidence almost without restriction as to the “progression of damages”. No prejudice is shown in the trial court’s ruling. See: Bule 15, M.B.Civ.P. On issue 2, concerning the statute of limitations, plaintiffs — 31 — were allowed to put in evidence as to date almost without restriction. On the settlement of instructions, the following appears : ‘ ‘ THE COURT: All right, No. 11 is withdrawn. Considering No. 12. “MR. DANIELS: [Counsel for plaintiffs] We are going to object to the giving of the Defendant’s Instruction 12, your honor, on the grounds that the statute of limitations on a recurring nuisance, which is what this constitutes, does not commence until such time as the nuisance ceases, and had the nuisance ceased in 1965, then, of course, this would be an appropriate instruction, but the nuisance recurred on almost a weekly basis, and the statute just simply does not run on these recurring instances on these nuisances. “MR. DAHOOD: [Counsel for defendant] The authority on recurring nuisances is that the statute runs from the date of each nuisance. “THE COURT: Overruled. No. 12 is given. “(DEFENDANT’S PROPOSED INSTRUCTION NO. 12 WAS GIVEN AS THE COURT’S INSTRUCTION NO. 18:) “The jury is instructed that the period fixed by statute for bringing an action for personal injuries is three (3) years preceding the date of filing the complaint. In this case the statute •of limitations having been pled as a defense by the defendant, all evidence pertaining to personal injuries occurring prior to March 28, 1965, is to be disregarded and given no consideration. ‘ ‘ Given: Nat Allen, Judge. “THE COURT: Take up Defendant’s No. 13. “MR. LEAPHART: [Counsel for plaintiffs] For the record, your honor, we will make the same objection as we did to Defendant’s Proposed Instruction No. 12. ‘ ‘ THE COURT: Overruled. No. 13 is given. “(DEFENDANT’S PROPOSED INSTRUCTION NO. 13 WAS GIVEN AS THE COURT’S INSTRUCTION NO. 19:) — 32 — “The jury is instructed that the period fixed by statute for bringing an action for injury to property as alleged by the plaintiffs in this case is two (2) years prior to the date of filing the complaint. In this case, the statute of limitations having been pled as a defense by the defendant, all evidence pertaining to injuries to property occurring prior to March 28th, 1966, is, to be disregarded and given no consideration. ‘ ‘ Given: Nat Allen,, Judge. ’ ’ Now, on appeal, counsel recognizes that the objections to, the instructions were inadequate but counsel says that he did not have adequate time to research the matter because the pleadings-were not amended until the day of trial. We are not impressed with this argument. However, in considering the issue on its-merits, as to the damages to property, plaintiffs argue that section 93-2613, R.C.M.1947, is the correct period of limitations,-, that is, five years. Plaintiffs cite Watson v. Colusa-Parrot M. & S. Co., 31 Mont. 513, 79 P. 14. In the year 1904, the statute, Section 524 (Code of Civil Procedure 1895) provided in part: “An action for waste or trespass on real property * * * shall be commenced within two years. ’ ’ The Court in Watson said that if any statute of limitations was-applicable to the nuisance case involving pollution of a river, it was then Section 518 (now section 93-2613, R.C.M.1947). Following that, by Chapter 172, Session Laws 1921, Section 524 was-amended and became Section 9033, R.C.M.1921, and read in part :■ “Within two years: “ (2) An action for injury to or for waste or trespass on real or personal property * * (Emphasis supplied.) The language remains the same in section 93-2607, R.C.M.1947. Thus Watson is no longer applicable and the court’s Instruction No. 19 was correct. Also, plaintiffs seem to argue that the nuisance was intermittent; and thus a different rule would apply. However, plaintiffs’ — 33 — ■evidence was clearly to the effect that the alleged nuisance was continuous and unremitting. We find no error as to issues 1 and 2. Issue 3 is whether the court erred in refusing the following instruction: “You are instructed that the rule of damage for permanent injury to land is the difference between the value of the land prior to the claimed injury and its value after the claimed injury.” At the settlement of instructions, the following appears: “THE COURT: Taking up Plaintiffs’ No. 5. “MR. DAHOOD: We object to No. 5, your honor, upon the ground and for the reason that there has been no evidence introduced indicating any permanent injury to the land, and upon the further ground that where the damage consisted of loss of rental value the true measure of damage is the diminution of rental value, and not the question of whether or not there was permanent injury to the land. “MR. DANIELS: Well, it is the position of the Plaintiffs, of course, that there has been permanent injury to the land as testified to by Dr. Gordon in his explanation of the ecological change which will appear, and which has appeared, and which will be permanent in nature. THE COURT: No. 5 is refused.” Plaintiffs simply had no evidence of permanency of damage to their land. Plaintiffs leased their lands for agricultural purposes. Rental payments were not reduced. No evidence was offered showing any permanent damage. Other instructions covered damages and we find no error in the refusal of plaintiffs’ proposed instruction No. 5. Issue 4 is that the evidence was insufficient to support the jury verdict in that the jury totally disregarded credible, uncontradicted evidence that defendant maintained a nuisance from the date of the plant construction to the date of trial. In their complaint, plaintiffs prayed for judgment for damages for in — 34 — jury to person, property, and business in the amount of $150,000 and for an injunction. Nominal damages were not sought. The case, in our view, is a classic example of the jury’s hearing all of the evidence and not believing some of it. There was conflicting evidence and the jury was free to weigh the conflicting testimony and determine which was credible and to determine whether or not plaintiffs sustained their burden of proof. We observe that the trial judge allowed plaintiffs great latitude in presenting evidence. Finding no error, the judgment is affirmed. MB. CHIEF JUSTICE JAMES T. HABBISON, MB. JUSTICE DALY, and THE HON. L. C. GULBBANDSON, District Judge, sitting for MB. JUSTICE HASWELL, concur.