Waschak v. Moffat

109 A.2d 310, 379 Pa. 441, 54 A.L.R. 2d 748, 1954 Pa. LEXIS 371

• Court: Supreme Court of Pennsylvania
• Decided: November 8, 1954
• Docket: Appeal, 277
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearne,

The appeal is from a judgment of the Superior Court refusing to enter judgment non obstante veredicto for defendants in an action in trespass and affirming the judgment of the Court of Common Pleas of Lackawanna County in favor of plaintiffs.

Gas or fumes from culm banks, the refuse of a coal breaker, damaged the paint on plaintiffs’ dwelling. In this action for damages the applicable legal principles are technical and controversial. Considerable confusion appears in the many cases. The field is that of liability without fault for escape of substances from land.

Plaintiffs are owners of a dwelling in the Borough of Taylor which is in the center of Pennsylvania’s anthracite coal lands. An action in trespass was instituted against two partners, operators of a coal breaker in that Borough. Without fault on the part of defendants, gas known as hydrogen siilfide was emitted from two of defendants’ culm banks. This caused discoloration of the white paint (with lead base) which had been used in painting plaintiffs’ dwelling. The painted surface became dark or black. The sole proven damage was the cost of restoring the surface with a white paint, having a titanium and zinc base, which will not discolor. There was no other injury either to the building or occupants. The verdict was for $1,250.

While the verdict is in a relatively modest amount, the principles of law involved, and their application, are extremely important and far reaching. Twenty-five other cases are at issue awaiting the decision in this case. The impact of this decision .will affect the entire coal interests — anthracite and. bituminous — as well as other’ industries. Application of appropriate legal principles is of vital concern to coal miners and to other labor.

The pivotal facts are undisputed. To mine anthracite coal, either by deep or strip mining, requires processing in a coal breaker before marketing. Usable coal, broken to various sizes, must first be separated from its by-products of minerals, rock, etc. The byproducts are deposited in piles known as culm banks, portions of which may be reclaimed, while other parts are presently regarded as waste. The mining and processing in the present case are conceded to have been conducted by defendants without fault. Fires frequently appear in the culm banks long after the accumulation. Defendants neither committed any negligent act nor omitted any known method to prevent combustion, fires or the emission of gases. In addition to hydrogen sulfide two other gases, carbon monoxide and sulfur dioxide were shown to have also been emitted, but it is not contended that either of these two gases affected the paint in question. Hydrogen sulfide Avas conceded to have been the gas which caused the damage. The emission of this gas is not ordinarily found in the operation of coal mining and processing. Defendants did not Imow and had no reason to anticipate the emission of this gas and the results which might follow. Of the five culm banks only two of them, the Washington Street bank and the settling basin were shoAvn to have emitted hydrogen sulfide.

In the court below the case was tried on the theory of absolute liability for the maintenance of a nuisance. The jury was instructed that it should determine, as a matter of fact, whether or not what the defendants did and the conditions resulting therefrom constituted a “reasonable and natural use” of defendants’ land, The Superior Court declined to adopt the rule of absolute liability. That court followed' Restatement, Torts, Chapter 40 which relates to “liability withdut fault”. The verdict was affirmed, however, because, as'stated in the opinion, “[a] vast quantity of coal was brought . . . from lands outside the borough . . .” and “. . . the fact that hydrogen sulphide gas had not been generated in any of the existing . . . culm banks, made up wholly of wastes from coal mined in the borough, it was a fair inference for the jury that a different chemical content in the foreign coal which defendants hauled to the borough and processed there, accounted for the presence of the gas in the atmosphere. . . .” (Italics supplied)

The measure of liability for the escape of substances from land has been a controversial subject in the law. Much learning has been expended in this field. Unquestionably there is confusion in the host of cases on the subject. Judge Robinson tried the case in the court below with care. His charge and opinion reflect scholarly thought and effort. Judge Hiet, with his accustomed learning and acumen, reviewed the facts and the law. Both opinions merit great respect. Legal articles, extensively documented, have been published on the subject. An informative treatise titled “The Absolute Nuisance Theory in Pennsylvania” is found in 95 U. of Pa. L. Rev. 781. Hon. Charles E. Kenwoethey formerly a Judge in the Superior Court, has written an article titled “The Private Nuisance Concept in Pennsylvania: A Comparison With The Restatement” reported in 54 Dick. L. Rev. 109. The Restatement of the Law, Chapter 40 of Torts, sections 822 to 840, with scope and introductory note, on the “Invasions of Interests in the Private Use of Land (Private Nuisance) ” with Pennsylvania Annotations in the 1953 Pocket Supplement, restates the law.

Prom the multitude of cases there appear to have been promulgated three rules of law where there has been an invasion of interests in the private use of land. They arise most frequently where, without negligence or fault, material escapes to the land of another causing damage. The rules may be thus stated:

(1) English rule of Rylands v. Fletcher, L. R. 3 H. L. 330 (a leading case which is frequently cited)

(2) Absolute Nuisance Doctrine

(3) Restatement Rules.

(1) Rylands v. Fletcher

The English rule, supra, is concisely expressed by Lord Cranworth as follows (p. 340) : “. . . If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.” The strict doctrine of Rylands v. Fletcher, supra, has not been followed by this Court: The Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, 6 A. 453; Householder v. Quemahoning Coal Co., 272 Pa. 78, 116 A. 40; Venzel v. Valley Camp Coal Co., 304 Pa. 583, 156 A. 240.

Instead of the English doctrine, ordinarily this Court has heretofore applied what has been termed the Absolute Nuisance Doctrine. As pointed out by Judge Kenworthey, much of the confusion in this field is due largely to the diversification in defining the word “nuisance”, There is a nuisance per se and a nuisance in fact. Thus a gas station in a residential neighborhood may be a nuisance per se, but a retail grocery supermarket while not a nuisance per se may become a nuisance in fact if improperly conducted: Essich v. Shillam, 347 Pa. 373, 32 A. 2d 416. There is also confusion' respecting failure" to ' distinguish between trespass and nuisance: Many of the cases have used the phrase “it is not a question of negligence, but of nuisance?’.: Pottstown Gas Company v, Murphy, 39 ; James Gavigan v. The Atlantic Refining Company, 186 Pa. 604, 40 A. 834; Stokes v. Pennsylvania Railroad Company, 214 Pa. 415, 63 A. 1028. In Kramer v. Pittsburgh Coal Company, 341 Pa. 379, 19 A. 2d 362, when defining nuisance, Chief Justice Schaffer said (p. 381) : “ ‘. . . In legal phraseology, the term “nuisance” is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage:’ 46 C. J. 645-646. ‘Nuisance is distinguishable from negligence:’ Ibid, 650. ‘The distinction between trespass and nuisance consists in the former being a direct infringement of one’s right of property, while, in the latter, the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it:’ Ibid, 651. As we stated in Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 189, 8 A. 2d 302: ‘In cases of trespass for nuisance, the person responsible may be unable, no matter how careful, to avoid injury to the lands of another, but, again, he knows that injury may result from the nature of his activities regardless of care. Under such circumstances he also assumes the risk. The responsibility for injury lies in creating or maintaining the harmful condition.’ ”

An invasion of an interest may be intentional or unintentional. If an owner of land erects a factory upon it, which he operates, his act is, of course, intentional when he ignites fires under the boilers which emit smoke or fumes and operate noisy machinery. Such intentional operations may become a nuisance and canse damage to an adjoining property, depending upon the method of operation, location of the premises and surrounding circumstances. Under varying conditions the harm caused by the emission of offensive odors, noises, fumes, violations, etc., must be weighed against the utility of the operation. And even where the invasion of property rights is unintentional, and without negligence, if the activity is ultrahazardous there will be imposed an absolute liability for damages. Thus in a blasting operation, recovery was had where the damage was due solely to vibration and concussion: Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A. 2d 817.

To attempt to cite the host of cases and analyze them would be a Herculean task and prove uneffective. Many of the cases are cited in the Pennsylvania Annotations to the Restatement, Torts, supra.

(3) Restatement Rules

The Rule of the Restatement, which unquestionably is accurate and most comprehensive, is as follows:

“Section 822. General Rule.

The actor is liable in an action for damages for a non-trespassory invasion of another’s interest in the private use and enjoyment of land if,

(a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and

(b) the invasion is substantial; and

(c) the actor’s conduct is a legal cause of the invasion; and

(d) the invasion is either (i) intentional and unreasonable; or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.”

This rule we adopt. We agree that the adoption will obviate the difficulty and confusion in attempting to reconcile or distinguish the great mass of cases. We are not violating precedent and are not conflicting, in major degree, with the principles of stare decisis.

We must apply the principles of law enunciated by the Restatement to the facts of this case. Judge Hirt, in his opinion, has ably summarized the principal facts as follows: “In the light of the verdict, based upon testimony in which there is little dispute, these material facts appear: For more than 50 years coal mining has been the most important industry in the Borough of Taylor. Glen Alden Coal Company owned large tracts of land in the borough extending into the township on which it had conducted extensive mining operations during that period. It processed the coal at a large breaker in the borough, located within a few hundred feet of the property now owned by the plaintiffs. In accordance with the general practice, and with the consent of the borough, Glen Alden deposited the by-products of mining, consisting of waste material and coal which could be made saleable by reprocessing, in a culm bank as close to the breaker as possible without interfering with its operation. Glen Alden ceased operating the mines in 1932 and there was then a large refuse dump near the breaker. In 1937 the defendants undertook to reopen the mines and among the lands then leased to them by Glen Alden, were two large tracts, one fronting 2,500 feet on Washington Street in the borough, and the other near the breaker extending along Main Street for about one-half mile. Defendants from 1937 to 1944 by means of a conveyor line from the breaker, built up an extensive bank of culm or reclaimable sulphurous coal adjacent to the existing Glen Alden Bank, referred to as the Main Street dump. This hank was abandoned in 1944 when it started to burn. In the years that followed defendants, from necessity, turned to other locations for their culm banks. In 1944 they started to deposit culm on Washington Street, within the borough, which ultimately developed into a bank 10 to 60 feet high extending 800 feet along Washington Street and 750 feet along an alley in the rear of Union Street. This bank began to burn in 1948 and further dumping was then discontinued. Defendants then began the construction of a large settling basin near their Main Street dump. The walls of the so-called ‘silt dam’ were 25 feet high and were constructed principally of breaker refuse. The function of the structure was to separate silt from the water used in processing coal at the breaker, to comply with the Act of June 22, 1937, P. L. 1987, 35 PS §691.1 et seq., before discharging it into natural streams. Still another culm bank was started in 1949 on Fourth Street in the borough and defendants continued to deposit wastes from the mine at that location until May, 1951, when this dump also began to burn. The Fourth Street bank was 500 feet in length, 500 feet wide and 40 feet high. Extensive ramps to the dump were also made of breaker refuse material. Defendants are now using a new location as a dumping ground, between the Washington and the Fourth Street culm banks.

“The complaint in this case charged defendants with the creation of a nuisance resulting from the release of poisonous and obnoxious gases. Sulphur dioxide was discharged from the burning dumps but the proofs relate to damages caused by hydrogen sulphide alone. Hydrogen sulphide may be generated in culm banks without fire and the evidence is that the gas in the atmosphere in the borough was emitted from two of defendants waste dumps, beginning in 1948, viz: the Washington Street bank and the silt dam around the settling basin. . . . [U]nder the proofs, there was no intentional invasion of plaintiffs’ use and enjoyment of their land and the defendants’ conduct in the operation of their collieries was not negligent, reckless or ultrahazardous. . . . [Defendants’ mining operations did not create an 'absolute nuisance’ in a legal sense and their liability therefore is not absolute, regardless of fault.”

Prior to the year 1934 the Glen Alden Coal Company, owners, had ceased to mine coal in this area. The colliery in question was idle, the breaker was dismantled and miners in Taylor Borough were out of work. A committee of citizens of the Borough called upon the Glen Alden Coal Company requesting that the mines be reopened in order to aid the citizens. The Glen Alden Company agreed to this and leased coal lands comprising a continuous area of coal veins running from Taylor to Dickson City. When the defendants, in 1934, first began to operate the breaker a large culm bank close to the breaker was in existence and was then burning. In 1937 a new culm bank was started because of the fire in the old one and a conveyor was used to carry the culm to the new location. This was the Main Street bank and was used from 1937 to 1944. A new bank was then started known as, the Washington Street bank, which was used from 1944 until October 1948. This bank was the same distance from the breaker as the Main Street bank, but in the opposite direction. In 1948 defendants commenced the construction of a settling basin in compliance with the State law concerning pollution of streams. During the construction the State inspectors approved. In 1949, six months after the Washington Street culm bank was discontinued, fire, was- .discovered,,, and defendants ceased using this breaker material for the settling basin. In the spring of 1949 walls in the settling basin ignited.

It is significant that plaintiffs purchased their home on June 23, 1948. It was close to the breaker, near the Washington Street bank.

Of the various gases emitted from the five culm banks, hydrogen sulfide was the gas which caused the damage. The record shows that this was emitted only from the Washington Street bank and the settling basin and from no others. Defendants did not know, and had no reason to be aware, that this particular gas would be so emitted and would have the effect upon the painted house. The record shows that the defendants were guilty of no negligence and used every known means to prevent damage or injury to adjoining properties.

Even if the reasonableness of the defendants’ use of their property had been the sole consideration, there could be no recovery here. Chief Justice Frazer, in Harris v. Susquehanna Collieries Co., 304 Pa. 550, 156 A. 159, quoting from a previous case, said (p. 558) : “. . . As said in Pa. Coal Co. v. Sanderson, 113 Pa. 126, 158: ‘The plaintiffs knew, when they purchased their property, that they were in a mining region; they were in a [district] born of mining operations, and which had become rich and populous as a result thereof. . . .’ ”

This statement has peculiar application here. The dwelling in question had been formerly used by a mine inspector who doubtless desired to be close to the breaker. When plaintiffs purchased the dwelling they were fully aware of the surrounding situation.

In Versailles Borough v. McKeesport Coal & Coke Co., 83 P. L. J. 379, Mr. Justice Musmanno, when a county judge, accurately encompassed the problem when he said: ‘The plaintiffs are subject to an annoyanee. This we accept, blit it is an annoyance they have freely assumed. Because they desired and needed a residential proximity to their places of employment, they chose to found their abode here. It is not for them to repine; and it is probable that upon reflection they will, in spite of the annoyance which they suffer, still conclude that, after all, one’s bread is more important than landscape or clear skies.

“Without smoke, Pittsburgh would have remained a very pretty village.” In Pregrad v. Ocean Coal Company, 14 D. & C. 438, the syllabus reads: “A coal mining company is not responsible in trespass for damage caused to plaintiff’s property by smoke, dust and gases from a burning ‘slate dump’ on defendant’s property, the material having been placed on the dump in the course of operation of defendant’s mine and the fire having originated from spontaneous combustion, if there is no known method by which such fires can be extinguished.” In Lauff v. Pittsburgh Coal Co., 10 Wash. 161, Judge Cummins, in a unanimous opinion, in which Judge Howard W. Hughes (later a Justice of this Court) joined, held: “The general rule that one must use his own land so as not to injure that of another,— otherwise he is liable in damages, is subject to the exception that every man has the right to the natural use and enjoyment of his own property, and if whilst lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one’s own land may cause damage to another, without any legal wrong.”

Chief Justice Maxey said in Hannum v. Gruber, 346 Pa. 417, 423, 31 A. 2d 99, “What is reasonable is sometimes a question of law, and at other times, a question of fact.” Under the undisputed facts in this case the question is one of law.

The learned court below was in error when it ruled that this case was one of absolute nuisance. To compound the error it was ruled that it was “unreasonable and unwarranted” to process coal which was not connected with, or necessary to, the mining of coal “underlying the surface [the coal breaker] occupies”. The coal leases to defendants did not limit the operation to coal under the breaker. On the contrary, the leases covered coal veins extending from the owner’s land in Taylor through that borough to Dickson City. As the coal in this entire area is granted we see no reason why it cannot be processed on any portion of the land leased.

The Superior Court correctly refused to adopt the doctrine of absolute nuisance. It cited the Restatement. Judge Hikt said: “. . . Section 822 of the Restatement, Torts, sets forth some of the tests for determining liability resulting from a private nuisance. . . .” (Italics supplied) It is our view that Section 822 comprehensively encompasses the entire statement of principles of liability and is not restricted merely to some of them. We do not agree with the statement: “. . . A vast quantity of coal was brought to Taylor from lands outside the borough and in referring to that fact the trial judge properly charged that the deposit of the waste within the borough in processing such coal was not a natural use of the land. . . . [T]he fact that hydrogen sulphide gas had not been generated in any of the existing . . . culm banks, made up wholly of wastes from coal mined in the borough, it was a fair inference for the jury that a different chemical content in the foreign coal which defendants hauled to the borough and processed there, accounted for the presence of the gas in the atmosphere ...”

No coal was shown to have been, minéd or processed other than that from the leased land.;: the mined coal was part of the same leased veins whether within or beyond the corporate surface limits of the borough; there is no evidence that there existed any “foreign coal”. Certainly the jury should not be permitted to conjecture whether coal outside borough limits possessed a different chemical content than coal within the borough.

In applying the rule of the Restatement, Torts, Sec. 822 (d), it is evident the invasion of plaintiffs’ land was clearly not intentional. And even if it were, for the reasons above stated, it was not unreasonable. On the contrary, since the emission of gases was not caused by any act of defendants and arose merely from the normal and customary use of their land without negligence, recklessness or ultrahazardous conduct, it was wholly unintentional, and no liability may therefore be imposed upon defendants.

The judgment is reversed and is here entered in favor of defendants non obstante veredicto.