277 F. 665 | 7th Cir. | 1922
In 1904 plaintiff -in error constructed, and since has continuously operated, in Madison county,' 111., a large plant for smelting and refining lead and other minerals. In the vicinity of the plant defendant in error long owned 47 acres of land, 30 acres of which were long devoted to orchard purposes. The action of defendant in error, begun March 8, 1918, was for the permanent injury to his land, caused by poisonous emanations from the plant settling upon his land, injuring and destroying his oVchard, and, as claimed, causing a great pecuniary damage; his ad damnum being $50,000. The jury found a verdict for $4,000. Each party moved for new trial, which the -court denied, and rendered judgment on the verdict. The company prosecutes the writ herein, and relies on four grounds of error, viz.: (1) Admission of-evidence as to productivity of the orchard and sales of its product from 1915 to 1920, inclusive; (2) rejection of certain evidence of the expert qualifications of witness C. W. Bartells; (3) improper remarks of counsel in closing argument to the jury; and (4) improper charge of the court on the subject of the application of statute of limitations—the 5-year bar of the statute having been set up in one of the defenses to the action.
Tt is contended for defendant in error that, with the plant in the condition in which it was prior to 1915, such gases as reached the orchard were not sufficiently charged with the poisonous emanations (sulphur dioxide) to injure the orchard, but that in 1915 the intervening and first occurring condition of the “trail” caused so much more of the poisonous substance to be discharged from the chimney that much more of it reached the orchard, and did the damage, and that therca fter, through the doubling of the height of the chimney through which the gases passed into the air, far more of the gases wpre earned over the orchard, and that a far greater quantity of sulphur dioxide was thereafter precipitated upon the orchard than had ever been, or would have been in the use of the old chimney under normal circum
The court charged the jury that the invasion of the rights of defendant in error began, if and when plaintiff in error sent over his property the gases which inflicted damages, and that, if this occurred prior to the 5-year period preceding commencement of suit, the right of action was barred. Counsel for plaintiff in error requested a modification of the charge, by adding the words, “irrespective of whether it committed any actual injury to the vegetation or the trees upon the plaintiff’s property,” and the court declined to modify it. Had the plant been constructed, or had the new conditions intervened, but a short time preceding March 8, 1913, which was 5 years before the suit was begun, the requested modification would have been quite material. But with the undisputed evidence showing no injury for all- the years next prior to the limitation period, and for 2 years' after-wards, but appearing, if at all, immediately following new conditions in the plant during and after 1915, which were not present during the preceding years, we are satisfied that in any event no harm accrued to plaintiff in error through the court’s refusal to make the requested modification.
Deeming the errors relied upon insufficient to warrant disturbance of the judgment, it is accordingly affirmed.