Powell v. Superior Portland Cement, Inc.
129 P.2d 536, 15 Wash. 2d 14 (1942)
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Rule of Law:
A property owner who voluntarily acquires property in a manufacturing community cannot recover damages for inconvenience or discomfort caused by dust, smoke, or noise inseparable from lawful industrial activity in that community, provided the industry operates reasonably and has minimized such effects.
Facts:
- Plaintiff Powell, who had resided in Concrete since 1907, purchased property consisting of a house and garage in 1934.
- Powell's property was situated two and a half city blocks northeast of the defendant Certain-Teed Products Corp.'s cement plant.
- Certain-Teed Products Corp.'s cement plant, located within the town of Concrete, commenced the manufacture of Portland cement in June 1908.
- The town of Concrete grew significantly due to the plant's operation, with at least half of its residents directly dependent on the plant for their livelihood.
- In the process of manufacturing cement, a quantity of dust, consisting of fine limestone rock particles, escapes from the plant's stacks and is carried by air currents onto the surrounding territory, including Powell's property.
- The escape of dust from the stacks is not caused by any neglect on the part of Certain-Teed Products Corp., which had eliminated dust from other parts of its plant and greatly reduced it from the stacks.
- Installation of a dust-catching system (Cottrell system) would substantially eliminate stack dust but would be prohibitively expensive, necessitate entire reconstruction of the plant, and limit the use of the plant's limestone deposits.
Procedural Posture:
- Plaintiff Powell brought an action in the trial court (court of first instance) seeking to enjoin defendant Certain-Teed Products Corp. from interfering with his property use and to recover damages for injury caused by dust.
- The trial court found that a substantial quantity of dust from Certain-Teed Products Corp.'s plant caused Powell substantial inconvenience and discomfort and resulted in $500 in damages.
- The trial court denied Powell's request for equitable injunctive relief (to stop the dust) but entered judgment awarding him $500 for damages he had sustained.
- Certain-Teed Products Corp. (appellant) appealed the trial court's judgment awarding damages to Powell (respondent).
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Issue:
Does a property owner who voluntarily purchases property in a manufacturing community have a right to recover damages for inconvenience and discomfort caused by industrial dust, smoke, or noise that is inseparable from lawful industrial activity and has been reasonably mitigated?
Opinions:
Majority - Millard, J.
No, a property owner who voluntarily purchases property in a manufacturing community does not have a right to recover damages for inconvenience and discomfort caused by industrial dust, smoke, or noise that is inseparable from lawful industrial activity and has been reasonably mitigated. The court found that Powell purchased his property in 1934 with knowledge of the existing conditions created by the defendant's cement plant, which had been operating since 1908 and was crucial to the community's existence and prosperity. The defendant had invested heavily, was a necessary industry, and had taken all reasonable steps to minimize discomforts. The court emphasized that living in an industrial community entails certain discomforts, a burden assumed by those who choose to reside there. To allow recovery for such inherent inconveniences would threaten established and lawful businesses, which is contrary to sound public policy. The court explicitly overruled prior opinions, such as Hardin v. Olympic Portland Cement Co. and Bartel v. Ridgefield Lbr. Co., that suggested one could be compensated for industrial annoyances inseparable from the community's character, even if one "came to the nuisance." It adopted the rule from Ebur v. Alloy Metal Wire Co., which emphasizes the reasonableness of the business's operation in its locality and the public policy against destroying vital industries for minor annoyances.
Concurring - Blake, J.
No, a property owner is not entitled to damages because the plaintiff failed to prove substantial damage, specifically, damage different in character or degree from that sustained by other householders in the town. Justice Blake argued that damages for nuisance should primarily be measured by the depreciation in the market or rental value of the property, along with any special damages proven. He stated that "personal satisfaction or aesthetic enjoyment" must be quantifiable in terms of property value depreciation to warrant general damages; otherwise, such damages are based on pure conjecture. In an industrial commonwealth, "extreme rights" cannot be enforced if they impede the development of natural resources or manufacturing, which are vital to economic prosperity.
Concurring - Beals, J.
No, for the reasons stated by the majority and Justice Blake. Justice Beals generally concurred with both the majority opinion and Justice Blake's concurring views.
Dissenting - Jeffers, J.
Yes, a property owner should have a right to recover damages for inconvenience and discomfort caused by industrial dust, smoke, or noise, even if it is inseparable from lawful industrial activity and reasonably mitigated, if it causes substantial personal enjoyment reduction or injury to property. Justice Jeffers argued that the majority's conclusion departed from long-established state precedent (e.g., Hardin v. Olympic Portland Cement Co., Bartel v. Ridgefield Lbr. Co.) and was contrary to the almost universal holdings of other courts. These precedents established that one may not materially damage another's property or interfere with their comfortable enjoyment of it, regardless of negligence or the lawful nature of the business. The dissent noted that the trial court found substantial inconvenience, discomfort, and actual damage to paint and the roof. Furthermore, Rem. Rev. Stat. § 944 explicitly allows actions for damages when "personal enjoyment is lessened by the nuisance." It cited federal and state cases supporting recovery for personal discomfort without property depreciation and rejected the "coming to the nuisance" doctrine. The dissent also argued that the plaintiff suffered a "special injury" distinct from the general public, making it a private nuisance actionable by him, even if it also constituted a public nuisance.
Analysis:
This case represents a significant shift in Washington nuisance law, prioritizing industrial development and economic stability over individual property owners' claims for discomfort and minor property damage in established industrial zones. By overruling prior precedent, the court effectively established a "coming to the nuisance" defense and limited nuisance claims in industrial areas to only substantial, measurable property depreciation or uniquely severe impacts. This decision reflects a public policy choice to protect industries critical to a community's livelihood, potentially making it more challenging for residents in industrial areas to seek relief for ongoing annoyances inherent to such environments, absent demonstrable negligence or extreme harm.
