Lemler v. Nevada Cement Company

No. 5092 (Nev. Dist. Ct. December 8, 1971)

The defendant cement factory, which emitted 27,000 pounds of cement dust per day settling on the property of the plaintiffs, constituted a nuisance. The continued operation of the plant without any filtration system constituted express malice in view of the fact that filtration systems were used on other cement kilns operated by the defendant and there had been repeated attempts to induce defendant to filter this kiln. Plaintiffs are entitled to damages aggregating $1,865,298.31, consisting of special damages, general damages and punitive damages.

Counsel for Plaintiffs
Peter Echeverria
Echeverria & Osborne
555 South Center Street
Reno, Nevada 89501

Counsel for Defendants
John C. Renshaw
Vargas, Bartlett & Dixon
195 South Sierra Street
Reno, Nevada 89501

[2 ELR 20176]

Waters, D.J.

Findings of Fact and Conclusions of Law

THIS MATTER having come on regularly for hearing before the Court, plaintiffs being present in Court and represented by PETER ECHEVERRIA, JOHN T. COFFIN and DENNIS J. HEALY, JR., and defendants having been represented by JOHN C. RENSHAW and ROGER NEWTON, and evidence having been given and testimony taken and the case having been submitted to the Court for its decision, whereupon the Court makes the following Findings of Fact and Conclusions of Law.

Findings of Fact

1. That the Court took judicial notice of and required no proof upon the points covered in the Findings of Fact made by the Honorable Judge Roscoe H. Wilkes in Case No. 5132 of the First Judicial District Court of the State of Nevada, In and for the County of Lyon. Those Findings were:

That the Court has jurisdiction of the parties and the subject matter and that the proceedings herein are between proper parties.

That plaintiff is a duly constituted subdivision of the State of Nevada, to-wit a County.

That defendant, NEVADA CEMENT COMPANY, is a duly formed and acting corporation qualified to and doing business in the State of Nevada.

That said defendant is, and at all times herein mentioned has been, the owner of a certain parcel of land and of buildings situate thereon, known as "Nevada Cement Company" more particularly described as follows:

[2 ELR 20177]

NW-1/4 of Section 11, Township 20 North, Range 24 East, M.D.B. & M., situate in the County of Lyon, State of Nevada.

That said defendant has been in possession of the above described property for approximately 5 years and has erected a cement production plant thereon.

That said production plant has been and is now used by defendant for the purpose of carrying on a lawful business, i.e., the manufacture of cement; that when the cement plant was planned defendant, through its officers and agents, represented to the citizens of plaintiff county that its cement plant would never create a dust problem or a nuisance.

That thereafter defendant did in fact erect a cement plant on the said property which did not create a dust problem or nuisance until 1969; that in September of 1969, defendant completed the installation of a second kiln and commenced the operation of the second kiln without installing adequate dust collection equipment to control the emissions from the Kiln Number Two.

That the emissions from Kiln No. 2 adversely affect the property and obstruct the free use of property in the immediate vicinity of said Kiln and in particular the residents of Fernley, Nevada in that:

a. The emissions settle on painted surfaces and when combined with dew or other slight amounts of moisture tenaciously cling to such surfaces, for example, automobiles and such cannot be removed without using a vinegar solution or some other acid type of bath; that repeated exposures causes paint to be ruined.

b. The windows in business and residental properties are rendered rough and unclear from the emission deposited thereon and the efforts to remove the same.

c. Television sets are damaged especially the tuners as is the efficient use of Fernley's sewage disposal system.

That the injury to property as aforesaid, while creating problems is not overwhelmingly serious though aggravating, annoying and to a degree damaging.

2. That Nevada Cement is wholly owned by the defendant, Centex Corporation, the president of Centex is the president of Nevada Cement, the Executive vice president in charge of cement operations is the executive vice president of Nevada Cement in charge of operations, the engineer of Centex in charge of construction and operation serves the same function for Nevada Cement and is compensated therefor by Centex Corporation; the board of directors of each corporation is substantially the same; directions for Nevada Cement come from Centex headquarters; that in every way except in form and corporate structure, Nevada Cement is Centex Corporation.

3. That in the Summer of 1968, Centex determined to double the capacity of Nevada Cement production from 3000 barrels of cement per day to 6000 barrels of cement per day and the design and construction of this expansion was directed by Mr. Vernon Moore, an employee of Centex Corporation.

4. That on September 5, 1969, the second kiln of Nevada Cement was put into operation without secondary filtration and this Kiln continued to operate in this condition until 9:00 o'clock P.M., March 31, 1971. During this period, Kiln Number 2 emitted 9 lbs. of particulate for each barrel of cement produced.

5. That starting in October, 1969, a series of meetings were held between Nevada Cement and officials of Lyon County and the State of Nevada, during which there was a conscious effort to convince County officials that the emissions were the fault of the County or the State because there were no emission standards.

6. That representatives of Centex stated it was necessary to operate Kiln Number 2 in order to determine its operational characteristics before a secondary filtration system could be designed and installed.

7. That during these meetings, Centex knew that for every day of full operation of Kiln Number 2, 27,000 lbs. of cement dust or dirt were being expelled over the area.

8. That Kiln Number 2 was not put into operation for the purpose of making tests but was operated for the purpose of making cement. The operation of Kiln Number 1 was not dependent upon the operation of Kiln Number 2 and after September 5, 1969, Kiln Number 1 could have been operated without operating Kiln Number 2.

9. That neither Mr. Moore nor Centex Corporation gave consideration to the fact that in operating Kiln Number 2, they were pumping 27,000 lbs. of cement dust over the Fernley-Wadsworth area for every day that Kiln Number 2 operated at capacity.

10. That Kiln Number 2 was designed and installed by Centex under the direction of Mr. Moore, who was an extremely competent man. Mr. Moore's position with Centex imputes to Centex the knowledge that Mr. Moore had during the period of September 5, 1969, up to the present.

11. That tests were ordered for Kiln Number 2 on November 26, 1969, and a final report rendered thereon on December 12, 1969. If the tests had been ordered on September 5, the final reports could have been obtained by October 1, 1969. Kiln Number 1 had secondary filtration when put into operation and it operated without objection up to the present time.

12. In October of 1969, it was brought to the official attention of Centex Corporation that residents of the area around Nevada Cement objected to the emissions from Kiln Number 2.

13. That during the public nuisance trial against Nevada Cement brought in behalf of Lyon County in July, 1970, Centex and Nevada Cement were specifically put on notice of the nature and extent of the damage that the emissions were causing the neighbors of Nevada Cement in the Fernley area.

14. That despite this notice, Centex continued the operation of Kiln Number 2 without secondary filtration for the purpose of making cement for the full 6 months allowed them by Judge Wilkes minus only 3 hours before the deadline and neither shut down nor offered to shut down the emissions that were spewing out on the residents of the Fernley-Wadsworth area.

Conclusions of Law

1. That in every way except formal corporate structure, Nevada Cement is Centex Corporation.

2. That Centex Corporation opened Kiln Number 2 at Nevada Cement on September 5, 1969, without secondary filtration, with full knowledge that for each full day of operation, 27,000 lbs. of cement dust would be emitted out over the Fernley-Wadsworth area.

3. That Centex Corporation negligently and carelessly discharged such excessively large emissions from Kiln Number 2 at Nevada Cement from September 5, 1969 until March 31, 1971, with actual knowledge of the liklihood that residents of the surrounding area would be damaged.

4. That the emissions from Kiln Number 2 adversely affected, caused actual damage to, and obstructed the free use and enjoyment of plaintiffs' property from September 5, 1969, until March 31, 1971.

5. That the operation of Kiln Number 2 at Nevada Cement Company, without adequate dust collection equipment controlling the emissions therefrom between September 5, 1969, and March 31, 1971, constituted an unabated nuisance in violation of N.R.S. 40.140 and Bill No. 50, Ordinance No. 50, Article 14 of the Lyon County Ordinances and that dust emitted therefrom is detrimental to the public health, safety and general welfare of the residents of Lyon County, Nevada, and adversely affects the properties of the said residents.

6. That continuing to operate Kiln Number 2 without secondary filtration for a period of 19 months with full knowledge that for each barrel of cement produced, 9 lbs. of cement dust would be spewed out into the atmosphere over the neighbors of defendants, constitutes oppression.

7. That such acts were done with wanton disregard for the rights and properties of others and constitutes legal malice and express malice.

8. That as a direct and proximate result of defendants' acts, plaintiffs suffered the following special damages to their property:

[2 ELR 20178]

For plaintiff, Ernest Baldwin, $181.05, $100.60, totaling $281.65. For plaintiff John Blevins, $160.90. For plaintiff R.J. Brodie, $1,611.00, $1,088.00, $500.00, totaling $3,199.00. For plaintiff Albert Caughlin, $382.69. For plaintiff Stanley Ceresola, $120.90. For plaintiff Steve Ceresola, $120.90. For plaintiff William Ceresola, $176.03, $115.60, totaling $291.63. For plaintiff T.C. Christopherson, $125.75. For plaintiff Gerald Cressy, $190.70. For plaintiff Rex Cressy, $260.80, $185.70, $32.00, totaling $478.50. For plaintiff Terry Crosby, $1,185.00, $400.00, $1,250.00, $1,750.00, $4,500.00, totaling $9,085.00. For plaintiff Cliff Dancer, $246.31, $86.48, $35.00, totaling $367.79. For plaintiff W. A. Danielson, $150.00, $90.60, totaling $240.60. For plaintiff Stan Davis, $120.90. For plaintiff Harold DePaoli, $234.98, $115.00, $130.00, totaling $479.98. For plaintiff Louis DePaoli, $218.20. For plaintiff Ray DePaoli, $270.98, $195.70, totaling $466.68. For plaintiff John Dishman, $195.70, $205.91, totaling $401.61. For plaintiff D. G. Frost, $328.72, $175.70, $610.00, totaling $1,114.42. For plaintiff Webster Godlevske, $145.60, $150.90, totaling $296.50. For plaintiff David Herman, $250.88. For plaintiff, Virgil K. Johnson, $1,304.00. For plaintiff Paul Keife, $190.70, $190.70, $235.00, totaling $616.40. For plaintiff Thomas Kilvet, $181.15, $160.00, totaling $341.15. For plaintiff Carl Kubler, $1,250.00. For plaintiff James Lawson, $50.00, $50.00, $50.00, $41.06, $10.30, $83.40, $199.52, totaling $484.28. For plaintiff Harold Lemler, $236.23, 236.23, totaling $472.46. For plaintiff Norman Lindley, $500.00, $343.00, $2,300.00, $1,820.00, totaling $4,963.00.For plaintiff Julian Mendoza, $136.05. For plaintiff Carl Pihlgren, $170.70, $250.98, $802.50, totaling $1,224.18. For plaintiff John Piscevich, $95.60. For plaintiff Morris Royels, $299.33, $206.19, $325.00, $515.00, $330.28, $3,341.94, totaling $5,017.74. For plaintiff J. L. Rury, $1,119.48, $90.00, $80.00, $3.00, totaling $1,292.48. For plaintiff Wilfred Shaw, $266.05, $251.23, $100.00, totaling $617.28. For plaintiff Marvin Simpson, $190.00, $192.76, totaling $382.76. For plaintiff William Smith, $166.20, $493.00, $260.00, $1,035.00, $625.00, $510.00, totaling $3,089.20. For plaintiff Dave Stix, $90.60, $90.00, totaling $180.60. For plaintiff Gene Wagner, $20.00, $12.00, totaling $32.00. For plaintiff K. Wilson, $88.00, $27.00, $12.00, totaling $127.00. For plaintiff Dennis Zubieta, $156.05, $120.90, totaling $276.95.

9. That as a direct and proximate result of defendants' acts, plaintiffs suffered a general damage in the amount of Five Thousand ($5,000.00) Dollars, each.

10. That as punitive or exemplary damages, defendants are to be assessed the sum of 1.4 million dollars with an aliquot portion of this sum to go to each plaintiff.

Let judgment be entered accordingly.