Trillingham v. Alaska Housing Authority

D. Alaska

Trillingham v. Alaska Housing Authority

109 F. Supp. 924, 14 Alaska 202, 1953 U.S. Dist. LEXIS 3272

CourtDistrict Court, D. Alaska

DecidedFebruary 24, 1953

DocketA-6718

StatusPublished

This text of 109 F. Supp. 924 (Trillingham v. Alaska Housing Authority) is published on Counsel Stack Legal Research, covering District Court, D. Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Trillingham v. Alaska Housing Authority, 109 F. Supp. 924, 14 Alaska 202, 1953 U.S. Dist. LEXIS 3272 (D. Alaska 1953).

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Opinion

FOLTA, District Judge.

Plaintiff seeks to enjoin the defendant from continuing to pollute and diminish his supply of percolating waters for his well, and also to recover damages. The pollution and diminution are alleged to be traceable to the construction and operation by the defendant of a housing project, with the usual appurtenances, and consequent disturbances and alteration of the surface of the adjoining land and the contamination is alleged to be due to the presence of coliform bacteria in such number as to malee the water unfit for use.

The defendant has moved to dismiss the complaint for failure to state a claim.

Two views have been taken by the courts in dealing with the pollution of percolating waters — (1) absolute liability, and (2) liability based on negligence, 4 Tiffany Real Property, Sec. 749, 3rd ed. The latter, sometimes referred to as the industrial rule, is the modern view and is fully discussed in Restatement of Torts, Secs. 822-832. Because it appears to be better adapted to growing communities, I am inclined to favor it.

*925 Turning to the complaint, it is noted that there is no allegation of negligence or of intentional invasion of the right asserted. This omission may not be cured by statements of fact in the brief not alleged in the complaint, or the use of the term “contaminated” in the complaint, for proof of contamination would not necessarily prove either of the elements referred to. Nor does the allegation of diminution of supply suffice to constitute a' claim because percolating waters, being a part of the freehold, may generally speaking, be used by the owner as he sees fit.

I am of the opinion, therefore, that the motion should be granted.

The plaintiff is allowed 15 days in which to amend.

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FOLTA, District Judge.

Plaintiff seeks to enjoin the defendant from continuing to pollute and diminish his supply of percolating waters for his well, and also to recover damages. The pollution and diminution are alleged to be traceable to the construction and operation by the defendant of a housing project, with the usual appurtenances, and consequent disturbances and alteration of the surface of the adjoining land and the contamination is alleged to be due to the presence of coliform bacteria in such number as to malee the water unfit for use.

The defendant has moved to dismiss the complaint for failure to state a claim.

Two views have been taken by the courts in dealing with the pollution of percolating waters — (1) absolute liability, and (2) liability based on negligence, 4 Tiffany Real Property, Sec. 749, 3rd ed. The latter, sometimes referred to as the industrial rule, is the modern view and is fully discussed in Restatement of Torts, Secs. 822-832. Because it appears to be better adapted to growing communities, I am inclined to favor it.

*925 Turning to the complaint, it is noted that there is no allegation of negligence or of intentional invasion of the right asserted. This omission may not be cured by statements of fact in the brief not alleged in the complaint, or the use of the term “contaminated” in the complaint, for proof of contamination would not necessarily prove either of the elements referred to. Nor does the allegation of diminution of supply suffice to constitute a' claim because percolating waters, being a part of the freehold, may generally speaking, be used by the owner as he sees fit.

I am of the opinion, therefore, that the motion should be granted.

The plaintiff is allowed 15 days in which to amend.

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Bluebook (online)

109 F. Supp. 924, 14 Alaska 202, 1953 U.S. Dist. LEXIS 3272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trillingham-v-alaska-housing-authority-akd-1953.