Kinsman v. Utah Gas & Coke Co. , 53 Utah 10 ( 1918 )

GIDEON, J.

Plaintiffs, fifty-nine in number, by this action seek to enjoin the defendant from operating its gas plant at its location in the Western part of Salt Lake City.

Plaintiffs are residents and owners of property in tlie immediate vicinity of the gas plant. The residences are located within a radius of 132 to 800 feet from said plant. It is alleged that in the operation of the gas plant cinders, smoke, obnoxious and poisonous gases are discharged on the premises of the plaintiffs, and as a result the air is polluted and made poisonous to such an extent as to cause great inconvenience to plaintiffs and their families; that such gases cause sickness, such as nausea, headache, etc., and that by reason thereof the homes of plaintiffs have become unhealthful and unfit for enjoyment, and the market and rental value of said premises has been greatly depreciated.

The defendant in its answer admits the ownership and operation of the gas plant. There is a general denial of the other allegations of the complaint.

The court, among others, found the following facts:

=(a) '‘That the defendant now is, and ever since March 21, 1906, has been, a corporation organized under the laws of the state of Utah, and that since its organization it has built and constructed a large, plant for the manufacture, generation, sale, and distribution of gas in Salt Lake City, Utah, on First South street, and between Ninth and Tenth West streets, and that defendant’s said plant is near the properties and homes of the plaintiffs, and in a district of Salt Lake City that is both residential and manufacturing. ’ ’

(b) “That said defendant at said place manufactures and generates gas in large quantities, and' produces gas for fuel and illuminating purposes.”

(c) “That the plaintiffs herein own' residence property near the plant of the¹ defendant, said property being hereafter more fully described. ”

(d) “The court finds that carbon monoxide, a very poisonous and nonodorous gas, is produced in large quantities by the defendant at its said works, but that from the evidence the court is not justified in finding that there is sufficient carbon monoxide in the atmosphere at any place, either on the defendant’s premises or on the public highways or on the premises of the plaintiffs, tó .produce any symptom of carbon monoxide poisoning, or any injury to health, and the evidence wholly fails to .justify the court in finding that sul-phuretted hydrogen escapes from the defendant’s premises in quantities to be injurious to health. But the court does find that the operation of said gas works and manufactory causes gases and fumes to be emanated therefrom that are offensive and disagreeable to the sense of smell; that said gases and fumes are offensively odorous and noxious; that they reach the premises of the plaintiffs herein and render the air impure and unwholesome; that they are deleterious to health, in that they irritate the mucous membrane and cause head'ache and nausea to many of the plaintiffs or to members of their families; that they annoy and injure the comfort and repose of the plaintiffs herein and members of their families, and so interfere with the comfortable enjoyment of life and of the property of the plaintiffs and of each of'them as to render said property less fit for habitation for residence purposes; that said annoyance, discomfort, and injury is substantial and material to each of the plaintiffs, but in varying degree, and in some eases rendering the premises of the plaintiffs wholly unfit for residence purposes. ’ ’

(e) “That by reason of said offensive and noxious gases and fumes reaching the premises of the -plaintiffs herein from the defendant’s said gas plant, and from the operation thereof, the rental and market value of the plaintiffs’ property are very materially injured and depreciated, and renders said property so uncomfortable and so unfit for habitation as to justify the plaintiffs in asking, and the court in granting, the permanent injunction prayed for by the plaintiffs herein. ’ ’

(f) “The court further finds that the noises emanating from the defendant’s gas plant, as the same is now being operated, it having been admitted on the trial by the plaintiffs that since certain improvements were installed by the 'defendant the noises complained of at the time of the filing of the complaint were greatly lessened, and not now so annoying or disturbing to the plaintiffs as to constitute in themselves a nuisance, or to give rise to any cause of action against the defendant.”

(g) “The court further finds that it is not shown by a preponderance of the evidence that the vegetation on the premises of the plaintiffs is injuriously affected by the gases emanating from the defendant’s plant.”

(h) “That the interference, annoyances, injuries, and damages to the plaintiffs and to their premises by the defendant through its operation of said gas plant and manu-factory are continuously recurring; that prior to and since the commencement of this action, and during the trial of this cause, the defendant has made every possible effort to itself abate said nuisance, and to prevent the emanation of said offensive and noxious gases and fumes from its plant during the operation thereof, but that the defendant is unable by any device to abate said nuisance, and that the same cannot be abated except by discontinuing the operation of said gas plant and manufactory in its present locality, and that said nuisance, if the operation of said gas plant and manufactory is permitted to continue, is a permanent nuisance to the plaintiffs herein and to their property.”

From the foregoing, as conclusions of law, the court'found:

“That the operation of the gas plant and manufactory of the defendant upon the premises now • occupied by it constitutes a permanent nuisance to plaintiffs, and to the premises of the plaintiffs, against which the plaintiffs have no plain, speedy, nor adequate remedy at law, and that plaintiffs are entitled to the relief prayed for in their complaint. ’ ’.

A decree was accordingly entered enjoining the defendant, after a period of 90 days, from qperating its gas plant and manufacturing gas upon said premises, or in any locality from which the fumes and gases produced would reach the premises of the plaintiffs.

The defendant brings the case to this court on appeal. ■

It is vigorously contended that the findings of the court are not supported by the evidence, and this court is asked to review the testimony given and determine its weight. More than 300 witnesses were examined, and the trial of the case covered a period of something like eighty days. Much of the testimony is contradictory.- Engineers were heard by the court who detailed at great length the process of manufacture, the methods by which the smoke was conducted from the, furnaces and retorts, how the gas was conducted, and demonstrated that, so far as it is possible, no gas or odor was permitted to escape into the atmosphere, and consequently none could reach the premises of the plaintiffs. Other expert testimony was adduced which, at most, could have but an argumentative effect, to-wit, the result of experiment's made to determine the presence of poisonous gases in the air around the premises of plaintiffs. Many other witnesses were heard "for the defendant to the effect that while in or about the gas plant they had at no time observed any offensive odor in or near the plant or upon the premises of the plaintiffs.

The trial court, by agreement of all parties, during the pendency of the action visited the gas plant in company with counsel, and also alone at numerous times, and had opportunity to and did observe the locality, situation of plaintiffs’ residences, the method of operating the plant, and from such personal visits was able to better understand and weigh the testimony of the witnesses than one not having that opportunity, and to determine from such personal observation the presence of offensive and noxious odors emanating from the gas plant and finding their way to the premises of the plaintiffs.

The plaintiffs’ witnesses testified that, notwithstanding every, effort made on the part of the defendant company to prevent the offensive odors escaping from the gas plant, it had not been successful, and that there were, periodically and at times continuously, offensive and noxious odors coming from the gas plant and entering upon the premises of the plaintiffs and into their homes. The weight of the testimony respecting the effect upon the health of the plaintiffs or the members of their families is not as convincing, conclusive, or satisfactory as that given in support of the other findings. I do not, however, understand from the court’s findings that any serious sickness results, or is likely to result, from the odors coming-from the defendant’s plant, but merely that such offensive odors are deleterious, thereby causing nausea, etc., which, at most, is but temporary in its effect.

The defendant first constructed its gas plant in the years 1906-07, and enlarged the same about the year 1910. Without exception the testimony shows that the homes of the plaintiffs were built and occupied prior to or about the time the gas plant was first constructed.

1 While this court will, and it is its duty in equitable proceedings to, review the testimony and determine its weight, of necessity much consideration must and will be given to the trial court’s findings, not only because such court heard the witnesses and had an opportunity to observe their demeanor upon the witness stand, their means of knowledge, their interests, etc., but particularly in this case greater consideration should be given to the court’s finding by reason of the court’s opportunity in visiting the plant and vicinity, and seeing from personal investigation and observation the conditions that exist there, and determining whether or not such offensive odors, fumes, etc., do emanate from, and are allowed to escape from, defendant’s plant, and whether the same permeate the air about and enter the homes of the plaintiffs to such an extent as to render said premises uncomfortable and unfit for residential purposes. McCarthy et al. v. Bunker Hill & S. M. & C. Co., 164 Fed. 927, 92 C. C. A. 259; Utah Commercial & Sav. Bank v. Fox, 44 Utah, 331, 140 Pac. 660; Campbell v. Gowans, 35 Utah, 268, 100 Pac. 397, 23 L. R. A. (N. S.) 414, 19 Ann. Cas. 660.

It would be a burdensome and useless task to attempt an extended' review of the testimony taken in this case, and the limits of this opinion will not permit of such a review. There can, however, be no contention that there is not substantial evidence in the record to support the court’s findings; and after a careful reading of the entire volume of testimony, a consideration of the means of knowledge of the various witnesses, the fact that many of the defendant’s witnesses had resided only a short time in ‘the vicinity of the gas plant, and that some of them had never resided there at all, and the fact that the court had personal opportunity of investigating as herein stated, we are clearly of the opinion that the court’s findings are supported by the weight of the evidence.

2 That such trespass upon the rights of plaintiffs and disturbance of plaintiffs in the full enjoyment of their homes constitutes an actionable nuisance, as defined by our statute (Comp.'Laws 1907, section 3506), we have no doubt.

3 Notwithstanding the findings of the trial • court and the above conclusions of this court (that such findings are supported by the weight of the testimony), it appears from the record that at the trial numerous witnesses testified on the part of the defendant that they had at no time observed any noxious fumes or gases in.or about the premises or plant of the defendant or upon the premises of the plaintiffs. The means and opportunity of observing and noting the condition surrounding the gas plant were equally as good on the part of these witnesses as that of the plaintiffs. The residences of such witnesses in some instances adjoined the homes of some of the plaintiffs. It' is for that reason earnestly insisted and urged upon this court by the appellant that the fact that defendant is so operating its plant as to interfere with the comfortable enjoyment of plaintiffs’ homes is not shown by such clear and convincing proof as would authorize or justify a court of equity in issuing the extraordinary and harsh remedy of injunction. It is also insisted,and urged, as a further reason for withholding injunctive relief,that this court should consider the resulting damages to the parties: that it appears that the defendant is engaged in a lawful occupation, is supplying gas to the inhabitants of Salt Lake City; that there is no other present source from which such inhabitants can obtain a supply of gas; and that if the injunction shall be made permanent the defendant will be under the necessity of constructing a new plant, or of removing its present plant, at great cost, and that during the time of its removal the inhabitants of Salt Lake City, patrons of the defendant, will be deprived of necessary gas for domestic and industrial purposes. It is also contended that the court should balance the equities between the parties, and if the injury to defendant exceeds and is much greater than the damages sustained by plaintiffs the writ should be denied. The testimony is not conclusive as to the cost necessarily to be incurred in the removal and reconstruction of defendant’s plant, but one witness placed its value at approximately $1,000,000. On the other- hand, it is in the testimony that the property separately owned by the plaintiffs, and which is injured or rendered less fit for habitation by operation of the gas plant, is approximately of the value of $375,000. The residences of the different plaintiffs are located at varying distances from defendant’s plant, only a very few are within a radius of 350 feet or less, while the remainder are located from that distance to 800 feet. In the very nature of things, any noxious or offensive odors given off by defendant’s plant would gradually diminish as the distance increases, and the relief to plaintiffs, whose homes arc near the gas plant, might and should differ from the relief which should be granted to those whose residences are at greater distances from defendant’s plant. The foregoing facts, either considered alone or jointly, are not of themselves sufficient to justify or authorize this court in refusing the plaintiffs injunctive relief, but are facts which should be considered by the court, together with all the other facts appearing in the record, in the final determination of the relief to which plaintiffs are entitled.

After the institution of this action and prior to the trial defendant made some extraordinary and extensive, improvements in an effort to prevent the escape of gases and other offensive odors from its plant. It is true plaintiffs testified the odors were not decreased by the efforts of the defendant. Without attempting to state in detail those improvements, suffice it to say that the object sought to be obtained was to prevent the escape of smoke and gas from the retort house, and to carry the smoke and gases from the retort house through flues or pipes, in which all’ solid substances were washed from the smoke and by means of fans constructed for that purpose, forced into a large smokestack 129 feet high, and at that height released into the air. It is also shown that the fumes and gas from the revivifying material, which had prior thereto been allowed to escape into the atmosphere, are now confined in a building known as the revivifying house, and conducted from that house by means of pipes or ducts to the furnaces, and there consumed by fire. These improvements did and must of necessity have reduced to some extent the gases or fumes which had theretofore escaped into the atmosphere, and the statements of witnesses that the odors had been getting worse of recent months are contrary to the physical surroundings proved to exist at defendant’s plant.

4, 5 It is undisputed in this case that the defendant, or its predecessor in interest, erected the gas plant at its present location in the years 1906-07. The plaintiffs, with scarcely an exception, testified they had observed the offensive odors and gases coming from the gas plant practically from the time of the beginning of its operation. True, they' stated that in their judgments the offensive odors had been worse of recent years. It is also undisputed that in the year • 1910, some three years after the completion of the plant and after the. date when it began operation, the plant was enlarged by approximately doubling its capacity. That the plaintiffs were aware that such addition was being made is not a disputed question in the case. In fact it is urged that about the date of the enlargement some written protests were made by some of the residents of that community against the enlargement. Just what was done with the written protests does not appear in the record, except by inference from the fact that such protests were found among the files in the city recorder’s office of Salt Lake City and produced at the trial. At any event no legal proceedings were taken by plaintiffs to prevent the enlargement of the gas plant by the defendant. That the same conditions existed prior to the enlargement, as indicated, is admitted, except in a lesser degree.

"They (the plaintiffs) contented themselves with a mere protest at some stage of the proceedings. Two courses were then open to them: (1) To file a bill in equity to enjoin the work on the ground that it would increase the nuisance already existing, and cause them irreparable damages; (2) to wait until the work was done, and bring an action at law for damages. They waited. Equity will not now lend its aid to a party to compel an expensive work to be undone which the party might, by planting a bill in equity in reasonable season, have prevented.” McKee v. City of Grand Rapids, 137 Mich. 212, 100 N. W. 585.

That language, and the principle therein announced, was quoted and approved by this court in Lewis v. Pingree Nat. Bank, 47 Utah, 48, 151 Pac. 558, L. R. A. 1916C, 1261.

In my judgment a court of equity would not be justified in holding, and it is not so held in this case, that the operation of the gas plant is a nuisance per se; nor that the plaintiffs should be charged with the knowledge, prior to. the completion and the operation of the same, that in the operation of this plant the defendant company would so operate it as to cause it to be a nuisance. It appears however, in this case, as indicated above, that the same objection to the operation of the plant existed prior to its enlargement, and notwithstanding that fact was known to the plaintiffs they stood by and permitted the defendant company, without attempting to assert their legal rights, to expend large sums of money in the enlargement and the equipment necessary for the operation of its plant to the capacity required by its patrons. In Galliher v. Cadwell, 145 U. S. 373, 12 Sup. Ct. 875, 36 L. Ed. 738, the court says:

“But it is unnecessary to multiply cases. They all proceed upon the theory that laches is not like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced' — an inequity founded upon some change in the condition or relations of the property or the parties.”

In Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 696, 18 Sup. Ct. 227, 42 L. Ed. 626, the court said:

“In Speidel v. Henrici, 120 U. S. 377, 387 [7 Sup. Ct. 610, 612 (30 L. Ed. 718)], the court said, speaking through Mr. Justice Gray: ‘Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights'and shows no excuse for his laches in asserting them. “A court of equity,” said Lord Camden, “has always refused its aid to stale demands, where the party slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced; and, therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.” ’ * * *

“In Hammond v. Hopkins, 143 U. S. 224, 250 [12 Sup. Ct. 418, 427 (36 L. Ed. 134)], through Mr. Chief Justice Fuller, the court said: ‘No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands for the peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquicscouee in the assertion of adverse rights have occurred.’ ”

“ 'Relief by injunction is not controlled by arbitrary or technical ■rules, but the application for its exercise is addressed to the conscience and sound discretion of the court. Where a party seeks the intervention of a court of equity to protect his rights by injunction, the application must be seasonably made, or the rights may be lost, at least so far as equitable intervention is concerned. It is a rule practically without exception that a court of equity will not grant relief by injunction where the party seeking it, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by and suffers his adversary to incur expenses and enter into burdensome engagements, which would render the granting of an injunction against the completion of his undertaking, or the use thereof when completed, a great injury to him. A suitor who by laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon him will be left to pursue his ordinary legal remedy. This rule is especially applicable where the object of the injunction is to restrain the completion or use of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought.’ 16 Am. & Eng. Ency. of Law (2d Ed.) p. 356.” Stewart Wire Co. v. Lehigh C. & N. Co., 203 Pa. 478, 53 Atl. 1127.

However clear the plaintiffs may have established their rights and the trespass upon those rights by the defendant, under the rule announced in the foregoing citations it was incumbent upon the plaintiffs to exercise diligence and assert such rights within a reasonable time.- It is shown by the testimony that the plaintiffs, with few exceptions,- were residing in the vicinity of the gas plant at the time of its erection and were aware and had knowledge of the nuisance created by the operation of^ the plant prior to 1910, and notwithstanding that fact neglected to institute any proceedings to protect their rights, and in effect said to the defendant: “You are operating your plant as a nuisance, and we are aware of the fact; but we will permit you to enlarge it, and after you have expended the money necessary for such enlargement we will restrain you from enjoying your property.” To issue the extraordinary remedy of injunction in such a case, and under the facts as disclosed by this record, would be an unwarranted hardship and an injustice to the defendant which a court of equity ought not to enforce.

Applying the foregoing conclusions to the facts in this case, the lower court was not justified in granting a permanent order restraining the defendant from the further operation of its gas plant. That conclusion, however, in no way deprives the plaintiffs of their rights to recover whatever damages they may have sustained in the past or what damages they will sustain to their property by the future operation of said plant.

6 The plaintiffs allege the depreciation of both the rental and market value of their homes, and the court, found that such allegations -were supported by the testimony. Plaintiffs prayed for both specific and general relief, and a court of equity, having acquired jurisdiction of the parties and the subject-matter, will retain that jurisdiction until justice has been done between the parties.

"The rule has already been stated, as one of the foundations of the concurrent jurisdiction,’ that where a court of equity has obtained jurisdiction over some portion or feature of a controversy, it may, and will in general, proceed to decide the whole issues, and to award complete relief, although the rights of the parties are strictly legal, and the final remedy granted is of the kind which might be conferred by a court of law.” Pom. Eq. Jur. 3d Ed. p. 231.

See, also, Robinson v. Appleton, 124 Ill. 283, 15 N. E. 761; Browder v. Phinney, 30 Wash. 74, 70 Pac. 264.

And that is true notwithstanding the equitable relief sought by the complaint is denied in an action where the facts, as here, are such that plaintiffs might reasonably have expected the court to grant the equitable relief sought. Waite v. O’Neil (C. C.) 72 Fed. 348, affirmed in 76 Fed. 408, 22 C. C. A. 248, 34 L. R. A. 550; Combs v. Scott, 76 Wis. 664, 45 N. W. 532; Goddard v. American Queen, 27 Misc. Rep. 482, 59 N. Y. Supp. 46.

In addition, in this state there is but one form of civil action for the enforcement or protection of private rights and for the redress or prevention of private wrongs, and law and equity may be administered in the same action. Such are the provisions of both the Constitution and the Code. To dismiss this action^ and send the plaintiffs to their actions at law, would necessitate the filing of new complaints based upon and containing the same facts as alleged in the complaint here, and to be presented to the same court, invested with like powers. Such proceedings would defeat the very object of the Constitutional and statutory provisions providing for only one form of civil action, and empowering the court to administer both equity and legal relief in the same action.

“Wherever the true spirit of the reformed procedure lias been accepted and followed, the courts not only permit legal and equitable causes of action to be joined, and legal and equitable remedies-to be prayed for and obtained, but will grant purely legal reliefs of possession, compensatory damages, pecuniary recoveries, and the like, in addition to or -in place of the specific equitable reliefs demanded in a great variety of eases which would not have come within the 'scope of the general principle as it was regarded and acted upon by original equity jurisdiction, and in which, therefore, a court of equity would have refrained .from exercising such a jurisdiction.” Pom. Eq. Jur. p. 354.

See, also, Morgan v. Child, Cole & Co., 41 Utah, 564, 128 Pac. 522; Mills v. Gray, 50 Utah, 224, 167 Pac. 358; O’Neill v. Mutual Life Ins. Co. of N. Y., 51 Utah, 592, 172 Pac. 306.

7 There are fifty-nine plaintiffs in this action, each having a separate and individual claim or right of action for damages growing out of the same trespass on the part of the defendant company, and arising from one common cause, and governed by the same legal rules — the only separate issue that would or could be involved is the amount of compensation due each plaintiff. The rights of each and all can be determined in this action and full relief awarded. The prevention of a multiplicity of suits is not only within the province of a court of equity, but it is the court’s duty to so direct the litigation between the parties whenever needless and expensive litigation and interference with the other business of the court will result from a failure so to do. For a discussion of this question, see 1 Pom. Eq. Jur. (3d Ed.) 'sections 243 to 257, inclusive; also Browder v. Phinney, supra.

From the foregoing conclusions the order will be as follows : That the findings of fact made by the district court be, and the same are hereby, affirmed; that the conclusions of law and decree granting a permanent order restraining the operation of defendant’s plant be, and the same are hereby, reversed. The cause is therefore remanded, with directions to the district court to allow amendments to the pleadings if desired, and proceed to hear testimony and determine the .past and future damages to each plaintiff by reason of the continued and perpetual operation of the company’s plant at its present capacity, and to make separate findings upon such issue of fact, and enter judgment or judgments accordingly; or the court may call to its assistance a jury to determine the amount, if any, of such damages, as in other equitable proceedings.

8 I see no objection to the suggestion made by the Chief Justice in his concurring opinion that all other parties similarly situated be allowed to intervene in this action, and have such damages, if any, as they have sustained by the same cause' determined. It will also, therefore, be so ordered.

Neither party will recover costs on this appeal, but the order taxing costs in favor of plaintiffs made by the district court will be, and is hereby, affirmed.

McCAETY, COEFMAN, and THUEMAN, JJ., concur.