.... I

IN THE

Supreme Court of Appeals

of Virginia.

At Wytheville .

• June Term. 1927.

E. C. AKERS

vs.

THE MATHIESON ALKALI WORKS.

From the Circuit Court of Washington County, Virginia

''The Briefs shall be printed in type not less in size than small pica, and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records along with which they are to b.e bound, in accordance with the Act of Assembly approved March 16, 1903; and the Clerks of this Court are directed not to receive or file a Brief not conforming in all respects to the aforementioned requirements.''

The foregoing is printed in small pica type for the in­formation of counsel.

J. M. KELLY, Clerk .

.lobD A.. Cook. Priater. W:rthevllle.Va.

IS/WI I {\ I

""(

IN THE

Supreme Court of Appeals

of Virginia.

At Wytheville.

0

June Term, 1927.

\

E. C. AKERS

vs.

THE MATHIESON ALlrALI WORKS.

To THE HoNORABLE JuDGEs oF THE SuPREME CoUBT OF APPEALS OF VIRGINIA: .

Your petitioner, E. C. Al{ERS, respectfully represents that he is aggrieved by an order entered on the lOth day of April, 1926, in an action at law pending in the Circuit Court of Washington County, Virginia, wherein E. C. Akers is plaintiff and The Mathieson Alkali Works is defendant.

Petitioner. here tenders and files with his petition a tran­script of the record in said case, which he prays may be read and considered herewith.

That your petitioner on the 16th day of September, 1925,

~-~=--.·----

2

iilea a notice in the Circuit Court of Washington County, Virginia, against the Mathieson. Alkali W o~ks alleging that he would ,on Saturday, the 3rq day og October, 1925, ask the said Circuit Court of Washington County to give a judg­ment against the defendant in favor of your petitioner for the sum of twenty-five thousand dollars ($25,000.00), for da.Inages, wrongs and injuries set forth in said notice, and , for cause .of action made the following allegations, to-wit:

. Th&t the plaintiff is a citizen and resident of Washing­ton County, Virginia; that he owns· a farm in Washington County, Virginia, containing between 250 and 300 acres; that the said farm is located on the North Fork of Holston River, in Washington County, Virginia, which river runs through the said farm, dividing it into almost equal parts; that on said farm ~re certain dwelling houses, barns, and other buildings usual to such enterprises; that. the defendant was a corporation organized and created under the laws of the State of Virginia.

That on the 24th day of December, 1924, at the time of the injuries and grievances herein alleged, your petitioner used said farm and w·as la,vfully possessed of the same and was lawfully the owner of the same.

The defendant, on the 24th day of December, 1924, and for many years prior thereto, and at the time of the injuries herein alleged, was engaged in the business of manufactur­ing heavy chemicals, particularly soda ash, caustic soda, bi­carbonte of soda, bleaching powder, liquid chlorine, chlorine products and probably other articles unknown to your peti­tioner; that said enterprise was an extensive one, requiring an investment of many millions of dollars and the employ­ment of many hundreds of men; that the plant of the de­fendant, used for the foregoing manufacturing purposes, wa~ located in the town of Satville, Virginia. in Smyth County: that the manufacturing plant was located above the farm of your petitioiier and on the waters of the No-rth Fork River, ·w:hich river runs throug-h the said town of Saltville and by the. s.aid plant of defendant. and through tl1e Janos of peti­tioner some 8 or 9 miles belo'v in the County of Washington.

That in the nrocess of· manuf'lcture of said products tl1e defendant used daily at its said plant many tons of salt and limestone, large quantities of water and other materials un­known to petitioner; that there was a heavy waste material

3

created in the operation of said plant and the manufacture of said products, commonly designated as "muck;" that said "muck" was a mixture of water, dirt, slake lime, cal­cium carbonate, calcium chloride, common salt, ammonia, silica, sand, clay, and probably other -.ingredients unknown to petitioner.

That in the operation of the plant and in the manufac­ture of its products, that defendant built and maintained upon its o'vn lands for its own profit, saving, convenience and advantage, a dam known as its muck dam, for the pur­pose of depositing, collecting and storing said waste mate­rial or muck, whereby through a period of many years a great reservoir of 'vater and muc~ thousands of feet long and many feet high, and covering an area of many acres, be­came confined behind the wall of said dam and on the northern side thereof, which muck and water were carried or conveyed from said plant to said reservoir; that said dam was con­structed on the northern side of said river in close proximity to the same and in a generally parallel course with the same, but was not constructed across said river nor in the bed thereof; that said dam was an artificial dam constructed on the lands of -the defendant for the purpose of bringing into the said water and muck, which did not naturally belong there, and its natural tendency was to do great d~mage and destruction if it escaped, 'vhich the defendant well knew.

And by reason thereof, it became and was the duty of the said defendant to so construct its said dam and so main­tain the same and keep the same in repair as to enable it at all times to keep the water and muck so collected by the said dam safely confined so as to prevent injury to the plaintiff; and your petitioner then alleged that the ~aid de­fendant so negligently constructed, repaired and maintained the said dam that it did not safely confine said large quan­tities of "rater and muck collected in said reservoir behind said dam, but said dam was so negligently constructed, kept in repair and ·maintained that it 'vas Hable to burst or break and allow said enormous quantities of "rater and muck col-. lected and deposited in the said reservoir tl1rough a period of many vears to escape, and said defendant, at the time of the in:iuries herein alleged had collected, deposited and stored i:n. said reservoir, fm~ a period of many years, such enormous quaities ·of said muck and water as that the strengthl of said dam 'voulrl not withstand the great presRure on the

4

same; and that on the night of the 24th of December, 1924, the, said dam, by reason of its weakness and by reason of the great pressure of water and muck in said reservoir, sud­deruy and without previous warningt broke and gave way, and thereby ·said enormous quantities of water and muck, -the accumulation of many years contained in said reservoir, in a great flood rushed over and through said dam and into and -down said river, and into and over the said lands of the plaintiff; whereby the said North Fork of Holston River, through the lands of the said petitioner became flooded with said muck; a large quantity of which settled in the bed of said river as it passed through petitioner's lands, and de­stroyed petitioner's boat landing from one part of his farm to another, and rendered said river impassable through tbe lands of your petitioner from one part to another, and di­vided his farm into two almost equal parts, making the one part inaccessible to the other, and which muck also settled upon the lands of your petitioner, causing him great inj.ury and damage.

That your petitioner had two other counts in said decla­ration, as is shown by the transcript, but which it is not nec­essary to be considered in this petition.

· The defendant demurred to the notice and to each count thereof, and the Court overruled the demurrer to the second and third counts and sustained the demurrer to the first count by an order entered on the 10th day of April, 1926. In the grounds of demurrer filed by defendant's counsel, the objection to the first count was stated as follows:

"It is alleged in the first count of the notice, in effect, that defend~nt was liable as an insurer for the safe con­struction and maintenance of the dam in question. Under the facts alleged in the notice defendant was only liable for failur~ to exercise ordinary care to p,revent damage to others · in the construction and maintenance of the dam.''

In other 'vords, it 'vas contended by defendant that tak­ing all the facts in the first count of the declaration to be true, there was no liability, and from which action of the Court in sustaining the demurrer to the first count in said

,notice this writ of error is applied for.

The only question for decision arising, therefore, is:· whether under the circumstances alleged (which allegations

5

are admitted to be true, so far as the demurrer is concerned) defendant is liable for the damage to your petitioner, if any, or whether defendant is liable only for failure to exercise or .. dinary care.

It is conceded that if the dam had been erecte4 across 1

the North Fork River instead of on the lands of the defend­ant on one side of the river that the general rule is as con­tended for by the defendant. ''It is a rule of almost uni­versal acceptance that a person who constructs a dam across a natural-water-course for the purpose of penning b{!ck the waters is not an insurer of the safety of the dam under all circumstances so as to render him liable for injuries to pr.operty owners below caused by the giving way of the dam and the consequent escape of the penned back waters in .an unusual volume. On the contrary his liability is dependent solely on the question 'vhether he was negligent in the origi­nal construction or subsequent maintenance of the dam.'' R. C. L., Vol. 27, 1207.

The question at issue has been expressly decided by many of the .courts. The leading case on the subject is the English case of Rylands v. Fletcher. In that case the doc­trine was laid down that the use of land for the artificial storage of water is not a natural use, and that one who uses land for that purpoS€ does so at his own peril, and that he is liable for any injuries resulting to third paTties from the storage of the water1 even though without negligence on his part. In R. C. L., Vol., 27, p. 1206, the. author, after stating · the rule held in Rylands v. Fletcher., says:

"The doctrine thus enunciated has been -ad­hered to by the English courts and has been adopted hy many American authorities.''

And cites this as an illustration of the rule:

"Thus a municipality which maintains a large reservoir for its water supply is liable in damages to one injured by the precipitation of water there­from on his premises irrespective of any negligence on its part in the construction or maintenance of the reserv-oir. So, one who collects water in an arti­ficial reservoir on his premises is absolutely liable for the consequenees of percolation from his reser-

6

voir, regardless of the question of his negligence or care.''

A large number of authorities are cited to sustain the foregoing proposition. The same authority, in the same sec-

1 tion, however, says that the rule in Rylands v. Fletcher has been flatly rejected as unsound in some of the States, and

·cites one case, to sustain that proposition. However, the question has been expressly decided by the Virginia Supreme Court of Appeals in more than one case. In a very able and exhaustive opinion by Judge Bullhanan, our Court held, in the case of Arminius Chemical Co. and other v. Landrum and Others, 113 Va. page 7, that "when one man without fault is injured by another that is enough for liability." That is true in the present case.

It is true that the case of Arminius Chemical Co. v. Landrum, 113th Va., the facts are somewhat different from the present case, but the principle of law controlling both cases are the same, and those principles have been gener­ally upheld throughout America. In Pennsylvania a dif­ferent doctrine is laid down from that which pertains in Vir­ginia and in most other jurisdictions. The Pennsylvania case is Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, which 'vas discussed by Judge Buchanan, and he an­nounces "that decision, as it seems to us, is based upon two grounds, neither of which is sound, viz., that the rights of one riparian owner are to be determined by the necessities of another, and by the importance of the latter's business to the community or public." Then he adds, "neither can the private business of one man or class of men, however important its successful operation may be to the public, or to the development of the country, give such person or class of persons the right to destroy or materially injure the prop­erty of another in a thing in which they have common rights. If, under our Constitution and laws, private property can­not be taken or damaged for public uses without just com­pensation, a fortiori it cannot be done for private purposes," and cites Townsend v. N. & Vv. Ry. Co., 105 Va. 49; Shoffner ,~~ Sutherland, 111 Va. 301.

Judge Buchanan, after discussing many cases, quotes approvingly from the case of Day v. Louisville Coal & Coke Company, 60 W. Va. 27, as follows:

7

"This case involves principles very important everywhere, but especially important in this State at present and in the future; but those .principles are old, and have been called into requisition through many, many years, in actions for the pollution of streams, and casting into them hurtful things, and depositing them upon lands of riparian owners on the stream below. The 'defendant contends that, as it was using its property in c'arrying ori a lawful bu.siness, very useful to the public, it is exempt from liability, as it was only exercising its rights. w~ are told by the able brief of the defendant's counsel that the affirmance of this judgment will be vastly hurtful and disastrous to the mining and coke interests of West Virginia, and have a tendency to detract from the value of our land, and hinder the development of the great wealth of· coat and iron in the bowels of our mountains, and will be subver­sive of great public policy, which demands the de­velopment of our wealth therein and tends to the weal of the whole people of the State; and that a fe,v indiv~duals injured thereby must be without re­dress. We cannot accede to this broad proposition. The established maxim for ·centuries is sic utere. tuo ut alienum non laedas (so use your own property that you do not injure andother.) That rule is almost equal to the Golden Rule in importance, and must never be lost sight of in the daily doings and trans­actions of organized society. A man has land upon a stream. No one is its sole loTd. No one has a right to injure that land. It is protected by the Constitution. If one up the stream, in his works, be they ever so lawful, honorable, and necessary for public weal or private 'veal, do thereby injure the land of that owner further dow·n, by unlawful inva­sion of it, by casting upon it things damaging to it, or by polluting the purity of the water, rendering it unfit for the owner's ronsumption as it passes tl1rough h!s land, the man up the stream must an­sewer in damages. One man, without fault, is· in­jured by another. That is enough for liability. This is the general principle of the common law. One man cannot thus injure another. Especially is this so in this State, where the Constitution says that pri-

8.1

vate property shall not be damaged for public use without compensation. How, then, can it be dam­aged for private interests or to promote a supposed public policy? . The authorities are ample on this subject to sustain this position.''

He then quotes from the case of Bowling Coal Co. v. Ruffner, 117 Tenn. p. 180, in which the Court said: "We are of opinion that the doctrine announced in Penns)rTvania Coal Co. v. Sanderson, supra, is opposed by the great 'veight of authority in this country and England, and is, in our opinion subversive of fundamental private rigbts, while it discards • e • the honored principles of the common law embodied in the maxim, sic utere tu() ut alien~~.~~m ·non. laedas," and Judge Buchanan further says "that one who does not use his own so as not to injure another is responsible in dam­ages."''

In the case of Rylands v. Fletcher, supra, which is the leading case on the subject under discussio~ the plaintiff was the lessee of mining privileges which has passages com­municating with abandoned mines under the land of a mill owner, who built a reservoir over some shafts which had been filled in, and- the pressure of the water forced the same through these shafts and injured the plaintiff's mines. The defendant had no knowledge that the mines were being work­ed. underneath the lands. It was said that the failure on the part of the engineer or contractor to block up th.ese aban­doned shafts ·w.as an act of nagligence for which the defend­ant would be liable, but it was held that the defendant was liable on the ground that he had brought on his premises and stored a dangerous substance without restraining it.

Cranworth, J. said, "the defendants in order to affect an object of their own brought on to their land, or ,on to land which for this purpose may be treated as being theirs, a large accumulated mass of water and stored it up in a reservoir. 'The consequence of this was damage to the plaintiff, and for that damage, however skilfully and carefully tbe accumula­tions were made, the defendants, according to the principles and authorities to which I have adverted, were certainly re­sponsible.''

The Supreme Court of Ohio, in the . case of Defian'ce Water Co. v. Olinger, 54 Ohio St. Rep., affirmed the doctrine

9

held in the case of Rylands v. Fletcher, and gave damages against a water company for injury caused by the bursting of a stand pipe of water. In the case of Texas & P.R. Co. v. O'Mahoney, the· Court held that "where a. defendant con­structed a -ditch, dam and lake and the water percolated upon plaintiff's land, that the defendant was liable.'' The same principle 'has been approved by the Supreme Court of Illi­nois and California. The contrary doctrine has been held, as stated, in some cases, but the rule as laid down in Rylands v. Fletcher, in so far as the principle of that case is con­cerned, has been more than once approved in Virginia, not . only in the case of Arminius, etc., supra, but in the case of McGrory v. Garrett, 109 Va., p. 645, the same principle was announced. At pages 648-9, Judge Harrison, after· consider­ing many authorities, both text writers and cases, says: "These authorities and others that might be cited lead to the conclusion that unless justified by legislative authorities, the owner. of an awning erecteq and maintained over a public. street becomes, as to persons lawfully using the street, an insurer. He maintains the same at his peril, and anyone receiving an injury from such awning, being himself free from blame, has a good cause of action from the owner there­of, regardless of the questioi1 of his negligence in the con­struction and maintenance of such awning.''

The same doctrine was announced in King· v. Hartung, 123 Va. 185, and in Virginia, \Vhatever may be held in any other jurisdiction, we confidently assert, that the law is that \Vhere one has been injured by another, under the circum-

- stances alleged in the first count of the declaration, viz: That the defendant built a dam of the character therein described. for jts own private use and the dam broke under the weight of the water and muck, and iniured lfr. Akers, who was a riparian owner of land on the North Fork River, as alleged in said. declaration, 8 or 9 miles helow the Jiathieson Alkali Works, and he received injuries from the breaking of the dam erected and maintainerl as alleged in said notice, then that. without reference to the cnrP that ·may have been exer­cisecl hy the defendRnt. the defendant is li~hle to Akers for any injury. that he received.

We thereforP earnestly insist that it was error in the Court to sustain the demurrer in the first count of the notice, and thereby to hold that upon facts stated therein, there was no liability on the part of the ilefendant, the 1\fathieson Al-

10

kali Works, to the lower ·riparian owner, E. C. Akers, for the injuries done him by reason of the facts stated in said notice.

In consideration of the foregoing, petitioner is advised that the foregoing assignment of error is well taken and, that the order entered in said cause on AprillO, 1926, should be reviewed and reversed.

And your petitioner will ever pray, etc.

J. IRBY HURT, 'GEO .. M. WARREN, H. E. WIDENER, HUTTON & HUTTON,

For Petitioner.

E. C. AKERS, By Counsel.

We, F. B. HUTTON and A. P. Hutton, attorneys prac­ticing in the Supreme Court of Appeals of Virginia, do cer­tify that in our opinion the order complained of in the fore­going petition is erroneous, and should be reviewed and set aside.

Received October 9, 1926.

Writ of error awarded. Bond $300.00.

F. B. HUTTON. A. P. HUTTON.

P. W. C.

I PRESTON W. CAMPBELL ..

To the Clerk at Wytheville.

Received October 23rd, 1926.

J. M. KELLY, Clerk.

11

~· C. Akers, RECORD. Plaintiff, . . .. vs.

The Mathieson Alkali Works, Defendant.

Virginia, Washington County, to-wit:

Be it remembered that heretofore, to-wit, on the 16th day of September, 1925, came the plaintiff, E. C. Akers, by his attorney, and filed in the Clerk's office o:fl the Circuit Court for Washington County, Virginia, his Notice of ~lotion for judgment against The Mathieson Alkali Works, a corpo­ration, which notice is in the, "'\Vords and figures following, to-wit:

[2] Filed September 16, 1926.

Virginia: In the Circuit Court of \\7 ashington County.

E. C. Akers , vs.-Notice

The Mathieson Alkali Works.

To The Mathieson Alkali Works:

You are hereby notified that the undersigned, E. C. Akers, hereinafter called the plaintiff, will, on Saturday, the ··third day of October, 1925, that being the sixth day of the September term next of the Circuit Court of Washington County, Virginia, or as soon thereafter as it may be heard, move the said Circuit Court of Washington County, Virginia, at Abingdon, Virginia, for judgment against you for the sum of twenty five thousand dollars ($25,000.00), 'vhich sum is due and owing by you to me for damages, wrongs and in­juries hereinafter set forth, and for cause of action the plain­tiff makes the follo,ving alleg&tions, to~ wit:

That plaintiff is a citizen and resident of Washington County, Virginia; that he o'vns a farm in Washington County, Virginia, containing between two hundred and fifty and three hundred acres; that said farm is located on the North Fork of Holston River in Washington County,. Vir­ginia, which river runs through the said farm, dividing it into almost equal parts ; that on said farm are certain dwell­ing houses, barns and other buildings usual to such e~ter­prises.

12

That the defendant was and at all times mentioned here­in a c()rporation duly organized and created under the law~ of the State of Virginia.

That on the 24th day of December, 1924, and at the time of the injuries and brievances herein alleged, plaintiff used said farm and was lawfully possessed of the same, and was lawfully the owner of the same.

That the defendant, on the 24th day of December, 1924, [3] and for many years pt·ior thereto and at the time of

the injuries herein alleged, was engaged in the busi­ness of manufacturing heavy chemicals, particularly soda ash, caustic soda, bicarbonate of soda, bleaching powder. liquid chlorine, chlorine products and probably other articles unknown to plaintiff; that said enterprise was an extensive one, requiring an investment of many millions of dollars and the employment of many hundreds of men; that the plant of the defendant used for the foregoing manufacturing ·pur­poses yas located in the town of Saltville, Virginia, in Smyth County.

That said manufacturing plant was located above the said farm of plaintiff and on the 'vaters of the said North Fork River, running through the said to,vn of Saltville and by the said plant of defendant, and through the lands of de .. fendant some eight or nine miles below in the County of

. Washington. That in the process of manufacturing of said products

the defendant used daily at its plant many tons of salt and~. limestone, large quantities of water and other ~aterials un­known to plaintiff; that there was a heavy waste material created in the operation of said plant and the manufacture of said products, locally and commonly designated as '·'in.uck,'' which consisted, as plaintiff is advised, of a mix­ture of water, dirt, slak~ lime, calcium carbonate, calcium chloride, common salt, ammonia, silica, sand, clay, and prob­ably other ingredients unknown to plaintiff.

That in the operation of its said plant and in the manu­facture of its said products, the defendant built and main­tained upon its own lands, for its own profit, saving, conven­ience and advantage, a dam knovn1 as its muck dam, for the purpose of. depositing, collecting and storing said waste ma­terial or muck, whereby through a period of many years a great reservoir of water and muck, thousands of feet long

and many feet high, and covering an area of many [ 4] acres, became confined behind the wall of said. dam,,

13

and on the northern side thereof, which muck and water 'vere carried or conveyed from said plant to said res­ervoir; that said dam 'vas constructed on the northern side of said river in close proximity to the same and in a gener­ally parallel course with the same, but 'vas--not constructed across said river nor in the bed thereof; that said dam was an artificial dam constructed on the lands of the defendant for the purpose of bringing into the same said water and muck2 which did not naturally belong there, and its natural tendency was to do great damage and destruction if it escap-ed, which the defendant well knew. ·

By reaso.n whereof, it became and was the duty of said defendant to so construct its said dam and so maintain the same and keep the same in repair as to enable it at all times to keep the water and muck so collected by the said dam safely confined so as to prevent injury to the plaintiff.

Yet the said defendant so negligently constructed, re­paired and maintained the said dam that it did not safely confine said large quantities of water and muck collected in said reservoir behind said dam, but said dam was so negli­gently constructed, kept in repair and maintained that it was liable to burst or break and allow said enormous quantities of water and muck collected and deposited in the said. reser­voir through a period of many years to escape, and said de­fendant at the time of the injuries herein alleged, had col­lected, deposited and stored in said reservoir for a period of many years such enormous quantities of said water and muck as that the strength of said clam would not withstand the great pressure of the same, and. did not withstand the great pressure of the ~arne:

Whereupon on the night of the 24th of December, 1924, the said dam, by reason of its 'veakness and by reason of the great pressure of water and muck in said reservoir, suddenly arid without previous· :warning, broke and gave :way, and there-

by said miormous Quantities of said "rater and muck, [5] the accumulation of many years contained in said res-

ervoir, in a great flood, rushed over and through said dam and do'vn said river, and into. on and over the said lands of the plajntiff. whereby the said Nort}i Fork of Holston River, through the lands of the said plaintiff, became flooded 'vith said muck, a large quantity of which settled in the bed of said river as it passed through plaintiff's land, and de­stroyed plaintiff's boat landing from one part of his farm

. to the other, and rendered said river impassable through the

lands of the plaintiff from one part to another, and divided his farm into two almost equal parts·, making the one part inaccessible to the other, and which muck also settled upon the lands of the plaintiff, causing him great injury and damage.

SECOND COUNT.

And for this, also, that heretofore to-wit, that plaintiff is a citizen and resident of vVashington County, Virginia; that he owns a farm in Washington County, Virginia, con­taining between hvo hundred and fifty and three hundred acres; that said farm is located on the North Fork of Hol­ston River in Washington County, Virginia, which river runs t:q.rough the said farm, dividing it into almost equal parts; that on said farm are cert.ain dwelling houses, barns and other buildings usual to such enterprises.

That the defendant was and at all times mentioned here­in a corporation duly organized and created under .the laws of the State of Virginia.

That on the 24th day of December, 1924, and at the time of the injuries and grievances herein alleged, plaintiff used said farm and was lawfully possessed of the same, and was lawfully the owner of the same.

That defendant, on the 24th day of December, 1924, and for many years prior thereto and at the time of the injuries herein alleged, was engaged in the business of manufactur­ing heavy chemicals, particularly soda ash, caustic soda, bi-

carbonate of soda, bleaching powder, liquid chlorine, .[6] chlorine products and probably other articles unknown

to plaintiff; that said enterprise was an extensive one, requiring an investment of many millions of dollars and the employment of many hundreds of men ; that the plant of the defendant used for the foregoing manufacturing purposes was located in the Town of Saltville, Virginia, in Smyth County. ,

That said manufacturing nlant \VflS located above the said farm of plaintiff and on the \Vaters of the said North Fork River, running through the said To'vn of Saltville and bv the said plant of defendant, and through t.11e lands of plain­tiff some eight or nine miles below in the County of Wash-ington. .

That in the process of manufacture of said products the defendant used daily at its said plant many tons of salt and

15

limestone, large quantities of water and other materials un­known to plaintiff; that there was a heavy waste material created in the operation of said plant and the manufacture of said products, locally and commonly designated as "muck," which consisted, as plaintiff is advised, of a mixture of water, dirt, slake lime, calcium carbonate, calcium chloride, common salt, ammonia, silica, sand, clay, and probably oth~r ingre­dients unkno"\vn to plaintiff.

That in the operation of its said plant and in the manu­facture of its said products, the defendant built and main- -tained upon its own lands, for its own profit, saving, conven­ience and advantage, a dam known as its much dam, for the purpose of depositing, collecting and storing said waste rna-

- terial or muck, whereby through a period of many years a great reservoir of water and muck, thousands of feet long and many feet high, and covering an area of many acres, be­came confined behind the wall of said dam, and on the north­ern side thereof, which muck and water were carried or con­veyed from said plant to said reservoir; that said dam was constructed on the northern side of said river in close prox­imity to the same and in a generally parallel course with the same, but "\Vas not constructed across said river nor in the.

bed thereof; that said dam was an artificial dam con-[7] stnicted on the lands of the defendant for the purpose

of bringing into the same said water and muck, which did not naturally belong there, and its natural tendency was to do great damage and destruction if it escaped, which the defendant well knew.

By reason whereof, it became and was the duty of said defendant to use due care to so construct its said dam and so maintain the same and keep the same in repair as to en­able it at all times to keep the water a_nd muck so collected b:v the said dam safely confined so as to prevent injury to the plaintiff. _

Yet. the said defendant so negligently constructed, re­paired and maintained the sairl rlam that it did not safely confine said large quantities of water and muck collected in said reservoir behind said dam. but said dam 'vas so negli­Q"ently constructed. kept in repnir and maintained that it "\Vas liable to hurst or break and allow said enormous quantities of 'vater and muck collected and deposited in the said reser­voir through a period of many years to escape, and said defendant at the time of the injuries herein alleged, had col­lected, deposited, and stored in said reservoir for a period

16

of many years such enormous quantities of said water and muck as that the strength of said dam would not withstand the great pressure of the same, and did not withstand the great pressure of the same.

Whereupon, on the night of the 24th of December, 1924, - the said dam, by reason of its 'veakness and by reason of the

great pr~ssure of water and muck in said reservoir, suddenly ·and without previous warning, broke and gave way, and thereby said enormous quantities of said water and muck, the accumulation of many years contained in said reservoir, in a great flood, rushed over and through said dam and down said river, and into, on and over the said lands of the plain­tiff, whereby the said North Fork of Holston River, through the lands of the said plaintiff, became flooded 'vith said muck, a large quantity of which settled in the bed of said river as

· it passed through ·plaintiff's lands, and destroyed [8] plaintiff's boat landing from one part of his farm to

the other, and rendered said river impassable through the lands of the plaintiff from one part to another, and di­vided his farm into two almost equal parts, making the' one part inaccessible to the other, and which muck also settled upon the lands of the plaintiff, causing him great injury and damage.

TI-IIRD COUNT.

And for this also, that heretofore, to-wit, that plaintiff is a citizen and resident of Washington County, Virginia; that he owns a farm in Washington County, Virginia, con­taining between two hundred and fifty and three hundred acres; that said farm is located on the North Fork of Hol­ston River in Washington County, Virginia, which river runs through the said farm, dividing it into almost equal parts; that on said farm are certain dwelling houses, barns and other buildings usual to such enterprises.

That the defendant 'vas and at all times mentioned here_. in a corporation duly organized and created under the laws of the State of Virginia.

That on the 24th day of December, 1924, and at the time of the injuries and grievances herein alleged, plaintiff used said farm and was lawfully possessed of the same, and was lawfully the owner of the same.

That defendant, on the 24th day of December, 1924, and for many years prior thereto, and at the time of the injuries

17

herein alleged, was engaged in the! business of manufactur­ing heavy chemicals, particularly soda ash, caustic soda, bi­carbonate of soda, bleaching powd~r, liquid chlorine, clorine products and probably other articles unknown to plaintiff; that said enterprise was an extensive one, requiring an in­vestment of many millions of dollars and the employment of many hundreds of men; that the plant of the defendant used

· for the foregoing manufacturing purposes was located in the Town of Saltville, Virginia, in Smyth County.

That said manufacturing plant 'vas located above th~ [9] said farm of plaintiff and on the waters of the said

North Fork River, running though the said Town of Saltvi11e and by the said plant of defendant, and through the lands of defendant some eight miles or nine miles below in the County of Washington.

That in the process of manufacture of said products the defendant daily used at its said plant many tons of salt and limestone, large quantities of water and other materials un­known to plaintiff; that there was a heavy waste material created in the operation of said plant and the manufacture of said products, locally and commonly designated as "muck," which consisted, as plaintiff is advised, of a mixture of water, dirt, slake lime, calcium carbonate, calcium chloride, common salt, ammonia, silica, sand, clay, and probably other ingre­dients unknown to plaintiff.

That in the operation of its said plant and in the manu- . facture of its said products, the defendant built and main­tained upon its own lands, for its own profit, saving, conven­ience and advantag·e, a dam known as its muck dam, for the purpose .of depositing, collecting and storing said waste ma­terial or muck, whereby thl'ough a period of many years a great reservoir of 'vater and muck, thousands of feet long and many feet high, and covering an area of many acres, became confined l)el1incl the walls of said rlam, and on the northern side thereof, which muc.k antl "rater were carried or conveyed from said plant to said reservoir; that said dam 'vas constructed on the northern side of said river in close proximity to the same and in a generally parallel col~rse with the same, but was not constructed across said river nor in the bed thereof; that said dam was an artificial dam constructed on the lands of the defendant for the purpose of bringing into the same said 'vater and muck, which did not naturally belong there, and its natural tendency was to do great dam-

18

age and destruction if it escaped, which the defendant well knew. .

By reason whereof, it became and was the duty of said [10] defendant .to use due care to so construct its said dam

and so maintain the same and keep the same in repair as to enable it at all times to keep the water and muck so c~llected by the said dam safely confined so as to prevent injury to the plaintiff.

Yet the said defendant so negligently constructed, re­paired and maintained the said dam that it did not safely

-confine said large quantities of water and muck collected in said reservoir behind said dam, but said dam was so negli­gently constructed, kept in repair and maintained that it was liable to 'burst or break and allow said enormous quantities of water and muck collected and deposited in the said reser­voir throu~h a period of many years to escape, and said de­fendant at the .time of the injuries herein alleged, had col­lected, deposited and stored in said reservoir for a period of many years such enormous quantities of said water and muck as that the strength of said dam would not withstand the great pressure of the same, and did not \vithstand the great pressure of the same.

And plaintiff alleges further that defendant's manner of maintaining said dam after its construction was grossly negligent, and in total disregard of plaintiff's property and of the lives and rights of others, .especially of the lives and property those who would be likely to be injured by the breaking of said dam; that in the last few years defeu.dant has been g·rossly negligent, reckless, wanton and wilful in the maintenance of said dam so as to show a manifest, wilful and absolute disregard of the rights of others, especially of the rights of the plaintiff. Detendant is therefore notified that plaintiff, in addition to compensatory damages in this action will also claim exemplary or punitive damages.

Whereupon, on the night of the 24th of December, 1924, the said dam, by reason of· its weakness and by reason of the great pressure of water and muck in said reservoir, sud­

denly and without previous warning, broke and gavo [11] \vay, and thereby said enormous quantities of said

water and muck, the accumulation of many years con­tained in said reservoir, in a. great flood, rushed over and through said dam and down said river, and into, on and over the said lands of the plaintiff, whereby the said North Fork of Holston Hiver, thrm1gh the said lands of the said p1aintiff,

19 .

became flooded·. with said muck, a large quantity · of which settled in the bed of said river as it passed through plain­tiff's lands, and destroyed plaintiff's boat landing from one part of his farm to the other, and rendered said river impas­sible through the lands of the plaintiff from one part to an­other, and divided his farm into two almost equal parts, mak­ing the one part inaccessible to the other, and which m11ck also settled upon the lands of the plaintiff, causing him great injury and damage.

Wher~fore, plaintiff alleges that he has sustained dam­ages to the amount of $25,000.00 and that judgment for said sum, together with the costs will be asked at the hands of said Court ~t the time and place hereinabove set out.

Given und·er my hand this 14th day of September, 1925.

GEQ. ~I. WARREN, · HUTTON & HUTTON, J. IRBY HURT, H. E. WIDENER,

p. q.

[12] E. C. Akers, v:s.

The Mathieson Alkali Works,

E. C. AKERS. By Counsel.

Plaintiff,

Defendant.

PLEA IN ABATEMENT TO THE JURISDICTION.

The said defendant comes and says that this Court ought not to have or take any further cognizance of this motion, because said defendant says that the supposed cause of action did not, nor did any part thereof, arise in the said County of "r ashington, but that the supposed cause of the said ac­tion and every part thereof did arise within the County of Smyth, and that at the time of the service of the notice in this cause said defendant did not reside in the said County of Washington, but that it did then reside, has ever since re­sided a·nd does now reside in the County of Smyth. And this the defendant is ready to verify.

"\Vherefore it prays judgment whetlwr this Court can or

20

will take any further cognizance of this motion.

THE MATHIESON ALKALI WORKS, By Counsel.

BUCHANAN & BUCHANAN, WHITE, PENN & STUART,

Counsel for Defendant.

State of Virginia,

C9unty of Smyth, to-wit:

This day, Chas. E. Wiley personally appeared before me J. M. Archer, a Notary Public in and for the County and State aforesaid, and made oath that he is the duly authorized agent of the said defendant, and that the matters and things

, stated in the foregoing plea are .true.

Given under my hand, this 2nd day of October, 1925.

J. M. ARCHER,. [13] Notary Public.

My commission expires 4/29/29.

Circuit Court of Washington County, Virginia:

E. C. Akers, vs.-By Notice. of Motion.

Mathieson Alkali Works.

STIPULATION AS TO FACTS ON PLEA TO THE JURISDICTION.

In connection with the defendant's plea to the jurisdic­tion iu this case, the following facts are agreed between the parties by their attorneys:

The defendant is a domestic corporation, having its prin­cipal office in Smythe County, and its President or other chief officers does not reside in V\T ashington County, The muck referred to in the notice prior to the outbrenk, was con­fined in a basin located wholly in Smyth County, besides the North Fork of Holston River. The "dam" referred to in the notice constituted one side of the said basin and was· sit­uated wholly in Smyth County. Said "dam" broke on De­cember 24, 1924, and the muck referred to flowed through the

21

break into tha North Fork of the Holston River and was car­ried down by the waters of said river out of Smythe County into Washington County. The farm of plaintiff referred to lies upon said river and wholly within Washington County, a distance of several miles down said river from the bound­ary line between two said Counties.

HUTTON & HUTTON, of Counsel for Complainant.

WHITE, PENN & STUART, . of Counsel £or Defendant. .

[14:) Order of October 3rd, 1925.

E. C. Akers, Plaintiff, vs.-N otice of Motion.

The Mathieson Alkali Works, Defendant.

This day came the parties by their attorneys, and the defendant filed its plea in abatement to the jurisdiction of

1 the Court.

[15] Order of Dec. 21, 1925.

E. C. Akers, Plaintiff, vs.-N otice of Motion.

Mathieson Alkali Works, Defendant.

This case having been submitted to the Court in term· time on a plea to the jurisdiction filed on behalf of the defend-

·ant, and the Court having heard the argument of counsel on said plea, it is .considered that the plea is without merit, and doth strike the same from the file, to which action of the Court the defendant, by counsel, excepted, and thereupon the defendant filed its demurrer and the plaintiff joined therein, and the Court not being advised as to the order t~at should be entered thereon, doth make this a vacation case" for

such decision ·in vacation as might have been made in [16] term.

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Circuit Court of Washington County, Virgina:

E. C. Akers, vs.

The Mathieson Alkali Works.

GROUNDS OF DEMURRER.

The defendant comes and says that the notice of motion filed by the plaintiff is not sufficient in law, and for grounds · thereof assigns the following:

1. It is alleged in the first count of notice, in effect, that defendant was liable as an insurer for the safe con­struction and maintenance of the dam in question. The law does not hold a defendant to such a liability. Under the facts alleged in the notice, defendant was only liable for failure to exercise ordinary care to prevent damages to others in the construction and maintenance of the dam.

2. In the third count it is alleged that the defendant was grossly negligent, reckless, wanton and willful, and that punitive damages for such gross negligence, wantonness, etc. will he damanded by the plaintiff. No acts of wantonness, etc. are al1eged. Such a general allegation is not sufficient to support a recovery of punitive damages, but circumstances must be alleged warranting the inference of malice or wan­ton intention on tl~e part of defendant to harm the· plaintiff .

. 3. The third count of the notice, taken in connection 'vith the stipulation of facts hereinbefore filed in connection with the plea to the jurisdiction, shows that the acts of ·wantonness etc., if any occurred in Smyth County, 'vhile a recovery there­for is lJeing sought in Washington County. Punitive dam- . ages are distinct from compansatory damages, and even if compensatory damages could he recovered in Washington County, punitive damages could not be so recovered in the -

absence of. an allegation that the acts of wantonness, [17] etc., or som~,of them occurred hi Washington County.

4. It is alleged in the third count of the notice that defendant's manner of maintaining the dam was in disre­gard of plaintiff's property rights and of the lives and rights of others. This allegation is in connection with plaintiff's

23

claim for punitive damages. Plaintiff is not entitled to base a ·claim for punitive damages upon injuries to anyone be-sides himself. ·

THE MATHIESON ALKALI WORKS, By Counsel.

BUCHANAN & BUCHANAN, WHITE, PENN & STUART,

Counsel for Defendant.

[18] Order of February 25, 1926.

E. C. Akers, vs.-In Case.

The Mathieson Alkali Works.

This case having been submitted in term, and the Court not being advised as to the order which should be .entered therein, it is hereby ordered that this be made a vacation case and such orders may be entered herein in vacation as could have been entered in term.

[19] Order of April 10, 1926.

E. C. Akers, vs.-N otice of ~lotion.

The Mathieson Alkali Works, a Corporation,

Plaintiff,

Defendant.

This day came the parties, by their attorneys, and thjs case having. been heretofore submitted to the Court upon de­fendant's demurrer to the plaintiff's notice and the joinder of plaintiff therein, the Court not then being advised, took time to consider, and being now advised, is of opinion to sustain the demurrer as to the first count and overrule the demurrer as to the remaining counts. It is therefore con­sidered hy the Court that the said demurrer be, and it is here­by sustained as to the first count, and overruled as to the remaining counts.

Ol~rk 's Certificate.

[ 20] Virginia,

Washington County, to-wit:

I, W. Y. C. White, Clerk of the Circuit Court for the

24

County aforesaid, in the State of Virginia, do ·certify that the foregoing is a true transcript from ·the records in the action at law of E. C. Akers plaintiff against the Mathieson Alkali Works, defendant pending in said Court, and I fur­ther certify that White, Penn and Stuart, attorneys for the Mathieson Alkali Works have had notice of the intention of E. p. Akers to apply for transcript from the record in said case.

Given under my hand this 7th day of October, 1926.

G. I. MILLER, Deputy Clerk, Clerk, Circuit Court

for Washington County, Virginia.

Cost of Transcript, $8.00.

A Copy: . Teste:

J. M. KELLY, Clerk.

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Petitio11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record ............. ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Notice of Motion for Judgment . . . . . . . . . . . . . . . . . . . . . . . . 11 Plea In Abatement ........... · ..................... : . 19 Stipulation as to Facts on Plea ............... : . ....... 20 Order-Oct. 3, 1925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Order-Dec. 21; 1925 ............. ·'· . . . . . . . . . . . . . . . . . . 21 Grounds of Demurrer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Order-Feb: 25, 1926 ....... ·. . . . . . . . . . . . . . . . . . . . . . . • . . 23 Order-April 10, 1926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Clerk's Certificate ............................... · ..... 23