California Orange Co. v. Riverside Portland Cement Co.

This is an action at law to recover damages for injuries to plaintiff’s orange orchard, caused by the deposit on the trees of cement dust from defendant’s cement-mill. Plaintiff recovered judgment for a total of $6,300, of which $3,500 was for loss and injury to the crops for the years 1910, 1911, and 1912; $300 was for the increased labor and cost in the care of the trees, and the balance, $2,500, was for injury to the trees. From that judgment defendant appeals.

The orange orchard is located on a piece of high bench land situated on the northerly bank of the Santa Ana River, in Riverside County. It lies about midway between defendant’s cement-mill and the cement-mills of the California Portland Cement Company. Defendant’s mill is about one and a half miles southwesterly of plaintiff’s grove. The two mills of the California Portland Cement Company are northwesterly of the grove and distant therefrom about one and one-half miles. There is no question but that cement in considerable quantities from the mills of the California Portland Cement Company, as well as from defendant’s mill, settled upon plaintiff’s orange trees, coating the leaves with a white, ashen dust, which, incrusting from the action of dew and moisture, so that it can be neither washed off by the rains nor blown off by the winds, re

Dust-catching apparatus, commonly known as “treaters,” designed to prevent, so far as possible, the escape of cement dust into the atmosphere, were installed in defendant’s plant in January, 1913. The action was commenced August 14, 1913, and was tried in May, 1917.

[1] The California Portland Cement Company and defendant were not joint tort-feasors. Their respective torts —wrongfully operating their respective cement plants in such manner that deposits of cement dust, blown from the plants toward plaintiff’s orange grove, were incrusted upon the leaves of plaintiff’s trees—were several when committed, and did not become joint merely because of a commingling of the dust from the respective plants and a union of the consequences proceeding from the several and independent tortious acts. (Miller v. Highland Ditch Co., 87 Cal. 430 , [ 22 Am. St. Rep. 254 , 215 Pac. 550 ]; William Tackaberry Co. v. Sioux City etc. Co., 154 Iowa, 358 , [Ann. Cas. 1914A, 1276, 40 L. R. A. (N. S.) 102 , 132 N. W. 945 , 134 N. W. 1064 ]; Sutherland on Damages, 4th ed., sec. 1059.) Defendant is liable for only such proportion of the total damage resulting from the commingled dust emitted into the atmosphere from the plants of the two cement companies -as was caused by its own plant/' (Miller v. Highland Ditch Co., supra.) [2] In determining the amount of damages that should be assessed against this defendant, the trial court was at liberty to estimate as best' it could, from the evidence before it, how much of the total damage, caused by the operations of the two cement companies, was occasioned by defendant’s plant, and, in doing so, might measure with a liberal hand the amount of damage caused by defendant’s mill.

Appellant does not contend that the lower court charged it with more than its proportion of the total damages caused

Defendant claims that these findings are not supported by the evidence. All presumptions are in favor of the findings, and under the well-settled rule we cannot disturb them if there is any substantial evidence to support them.

The gravamen of appellant’s contention seems to be that the evidence is insufficient to show that cement dust from its mill settled upon respondent’s orange grove in “large” quantities. It seems to be conceded that some dust from appellant’s mill was precipitated upon respondent’s orange grove. If, as we believe, enough dust from appellant’s plant was deposited upon respondent’s trees

A number of witnesses testified that they frequently saw clouds of cement dust from appellant’s plant float over and settle upon respondent’s grove. One witness, L. V. W. Brown, describing his observations, said: “I observed the operation of the cement plant [defendant’s cement plant] since it started in 1910. I observed the smoke and emissions from it. Of course, there was a great deal of dirt emitted previous to the time the treaters were put on, and that followed the direction of the wind. At other times, when there was no wind, there would seem to be a great pall of dirt that would be thrown into the air, and would hang more or less continuously over that district until the wind took it away. This pall of dirt or dust or smoke in the air seemed to extend three miles, in every direction.” Another witness, Professor Babcock, who made a number of measurements of the cement dust carried into the air from the mills of these two cement companies, testified that, as a result of his experiments and measurements, he calculated that in the years 1909, 1910, 1911, and 1912 there fell, per year, at least 150 tons of cement dust on plaintiff’s 163 acres. He further testified that his calculations showed that, of the amount so falling annually on plaintiff’s property, about one-fourth came from the mills of the California Portland Cement Company and the balance from “some other source.” Defendant’s plant was the only other possible source whence the dust could have come. This, and much other evidence that could be referred to if necessary, is sufficient to justify the finding that cement dust, “in large quantities,” was discharged into the atmosphere from defendant’s plant and thence precipitated on the trees in plaintiff’s orange orchard.

To cause injury to plaintiff’s trees, for which he would be entitled to recover damages, it was not necessary that great quantities of the cement dust from defendant’s mill should have settled upon the trees. A slight coating of

Appellant calls our attention to the fact that, during the operations of its plant throughout the period com- • plained of by respondent, the orange grove was subject to other and natural causes of injury and deterioration, such, for instance, as lack of vitality due to want of proper care in the early stages of the orchard’s growth, killing frosts, and high winds blowing directly from the north through the Cajon Pass—referred to by the witnesses as' “northers.” Professor Peirce’s expert testimony, if accepted as true, justified the lower court in inferring that any discernible amount of cement dust, incrusted on the leaves of the orange trees, by its inevitable interference with the free action of sunlight, will cause appreciable damage to fhe trees. [3] In cases of this sort, the law is that if it be impossible to distinguish between the damage arising from the defendant’s actionable injury and damage which has another origin, the jury, or the trial judge if the cause be tried without a jury, should be left to make from the evidence the best possible estimate, and to award the plaintiff compensatory damages for the actionable injury. In Jenkins v. Pennsylvania R. Co., 67 N. J. L. 331 , [ 57 L. R. A. 309 , 51 Atl. 704 ], the rule was stated as follows: “It many times happens that the damage arising from an actionable injury, chargeable to the defendant, is, in the nature of things, or from the circumstances of the cases, indistinguishable from other damage occurring at

[4] From the foregoing we think it clear that the evidence shows that plaintiff’s orchard suffered substantial damage, directly attributable to defendant’s wrongful operation of its cement plant, whereby cement dust, in quantities sufficient to cause material injury, was precipitated upon plaintiff’s citrus trees; and that, therefore, the evidence is sufficient to support the findings of which appellant complains.

There was ample evidence to justify the finding (appearing in the conclusions of' law) to the effect that plaintiff was damaged in the sum of $300 for increased labor and cost in the care of its orange orchard. Teams were used in the cultivation of the grove. The ranch foreman testified that the cement dust got on the horses’ shoulders, under the harness, from brushing against the trees while dragging the cultivator, thereby causing their shoulders to become sore and necessitating extra care, whereby an hour a day was lost—a daily loss of about forty-five cents for each team that was in use during the season in each of the years 1910, 1911, and 1912, and totaling more than $300.

[5] Finally, it is contended that plaintiff is not entitled to damages for injury to the trees in addition to damages for loss of crops and increased labor. It will be recalled

A number of witnesses testified that, subsequent to the installation of the dust "treaters” in defendant’s plant in January, 1913, and prior to the trial in May, 1917, plaintiff’s trees had completely recovered. But it does not therefore follow that plaintiff’s injury was confined to deterioration in the crops that matured in 1910, 1911, and 1912, and the increased cost of bringing those crops to maturity. The measure of plaintiff’s damage is the amount that will compensate it for all the detriment proximately caused by defendant’s wrongful operation of its plant from the time when it commenced operations in January, 1910, until it installed the "treaters” in January, 1913. The measure of damages in cases of this character is found in section 3333 of the Civil Code, reading: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

The 1912 crop was the last crop picked and packed prior to the commencement of the action in August, 1913. Since early in 1913 defendant, by the installation of dust treaters, has collected about ninety-five per cent of the dust that otherwise would have escaped into the atmosphere from its cement plant and settled on plaintiff’s trees. But the dust that incrusted on the leaves that were newly put forth by plaintiff’s trees in the year 1912 would remain

There was ample evidence to sustain the court’s finding that $2,500 is the amount necessary to compensate plain,tiff for this continuing injury to the trees. It may be inferred from the testimony of several witnesses whose experience qualified them to testify as experts that the care and fertilization necessary to bring the trees back to a normal condition in the years 1913 and 1914 would be about double the amount that it would have been necessary to expend on the grove if the trees had suffered no injury continuing after the harvesting of the 1912 crop. The amount actually expended for the care, cultivation, and fertilization of the trees for the years 1913 and 1914 averaged $55.39 per acre. It is a reasonable

Appellant has failed to point out any reversible error, and the judgment, therefore, is affirmed.

Thomas, J., and .Weller, J., concurred.