Petition for Writ of Certiorari — Arvidson v. Reynolds Metals Co. (No. 575)

FiLED

\~ NOV 13 1956

In the Supreme Court

of the United States

OCTOBER TERM, 1956

No.. -BY5

ALBERT A. ARVIDSON, et al.,

Petitioners,

vs.

REYNOLDS METALS COMPANY, a corporation,

Respondent.

W. J. WHITEAKER, et al.,

Petitioners,

vs.

_ REYNOLDS METALS COMPANY, a corporation,

) Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE

NINTH CIRCUIT

DONALD A. SCHAFER,

JAMES P. CRONAN, JR.,

803 Public Service Building,

Portland 4, Oregon,

Pau. M. REEDER,

Commercial Building,

Hillsboro, Oregon,

Counsel for Petitioners.

STEVENS-NESS LAW PUB. CO.,. PORTLAND, ORE. 1-$6

PSE EERE TAR Re RA RITE RET, OT OA EAE Li Cit RIN ren een s.,|

INPEX

Page

Petition for Writ of Certiorari to the Court of aint

for the Ninth Circuit 1

Opinions Below 2

Jurisdiction —_. ” . ae ae 2

Question Presented ___. Massa Ons Mahal ps

Statutes Involved... CeO RE Oe

Statement of the Cases sabi Seas deigiomeasi tes agit 3

Basis for the District Court’s Jurisdiction acs

Reasons for Allowance of the Writ .)

Conclusion —_. eas pier en kf RS. @ co ci enka ae

Appendix A:

Part I:

Opinion of the District Court «sss... ery

Part IT:

Opinion of the Court of shanesitiae for the Ninth

RATER Serres BOE BY Te _ 94

Part III:

Opinion of the Trial Court rae = the Dis-

RI SI Soci gacec akc crechsnin aca gtatis eens 95

Appendix B:

Revised Code of Washington, § 4.16.080. 100

Revised Code of Washington, § 4.16.130

CITATIONS

CASES

Page

Arvidson, et al. v. —, Metals patielaen 107 F.

RS nae —err

Clark Lloyd Lbr. Co. v. Puget Sound & Cascade Ry.

Co., 92 Wash. 601, 159 Pac. 774... ...... 18, 37, 40

Constable v. John P. Duke, 144 Wash. 263, 257 Pac.

SAT: ae _.....37, 40

Gray v. Harris & Son, 200 Wash. 181, 93 P. (2d)

a LL cas cugsutevmninaneean ae 17

Irwin v. Jy. K. Lumber Co., 119 Wash. 158, 205 Pac.

Bs ela h a heise pkevtasks 37, 40

Kerr, et al., and McCallister, et al. v. . Reynolds W Metals

Company - ae baom Vim

Luellen v. Aberdeen, 20 Wn. (24) 594, 148 P. (2d)

i Bahan 5d says inncinantvs 37, 39

Paul Martin and Verla Martin v. Sateeie Metals

Company, Civ. No. 6151 (D. Ore.) ektatel 6

McAllister v. United States of America, 348 U.S. 19. 41

Noble v. Martin, 191 Wash. 38, 70 P. (2d) 1064... 37, 40

Northern Grain & Warehouse Co. v. Holst, 95 Wash.

312, 163 Pac. 775 Eee. 37, 38, 39, 40, 41

Oxley v. Linnton Plywood Ass’n., 205 Ore. 78... 75

Riblet v. Spokane-Portland Cement Co., 41 Wn. (2d)

249, 248 P. (2d) 380... hes a |

Suter v. Wenatchee Water Power Co., 35 Wash. 1,

76 Pac. 298... So cpemschihoandebectts Mile Ras ae ae Be

John M. Thorup and Kate W. Thorup v. A ase

Metals Company, Civil No. 5884 (D. Ore.).. 7

Ure v. United States, 93 F. Supp. 779, aff'd sub nom

White v. U. S. (CA9), 193 F. (2d) 505 20, 21

CITATIONS (Cont.)

Page

Welch v. Seattle & Montana R. Co., 56 Wash. 97, 105

Pac, 166 . See

Weller v. Aeaneiabiile: Falls Lbr. Co., 155 Wash. 526,

285 Pac. 446 . wid n-cst ge

STATUTES

28 U.S.C.A. Sec. 1332. ie ae

Rule 52, F.R.C.P. pice ibeka eee a

Revised Code of Washington (R.C.W. )

4.16.080 _ . ....... 3, 39, 40

4.16.080(1) ; a pcos. stan esta

4.16.080(2) ea 3, 37, 38, 39, 40

| Se cee Wicislaitasaiak exci 3, 37, 38, 39

52 Am. Jur., Trespass, Sec. 12, p. 844 __ a 22

32 C.J.S., Evidence, Sec. 569... 75

87 C.J.S., Trespass, Sec. 13 ; Saney

TEXT

I Restatement of the Law of Torts, Sec. 158 ss]

Iu the Supreme Court

of the United States

OcTOBER TERM, 1956

No.

ALBERT A. ARVIDSON, et al.,

Petitioners,

vs.

REYNOLDS METALS COMPANY, a corporation,

Respondent.

W. J. WHITEAKER, et al.,

Petitioners,

vs.

REYNOLDS METALS COMPANY, a corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE

NINTH CIRCUIT

To The Honorable, The Chief Justice and The Associate

Justices of The Supreme Court of the United States:

Petitioners respectfully pray that a Writ of Certiorari

issue to review the Judgment of the Court of Appeals

for the Ninth Circuit, entered in the above entitled cases

in the Court of Appeals on August 17, 1956.

_ perth Ghee ENT

Be

OPINIONS BELOW

The opinion of the District Court for the Western

District of Washington, Southern Division, is printed in

Appendix A, Part I hereto, infra p. 77 and is reported in

125 F. Supp. 481. The opinion of the Court of Appeals )

is printed in Appendix A, Part II hereto, infra p. 94, and

is reported in 236 F. (2d) 224. An opinion of the trial

Court but not by the trial Judge is printed in Appendix

A, Part III hereto, infra p. 95, and is reported in 107 F.

Supp. 51.

JURISDICTION

The judgment of the Court of Appeals was entered

in that Court August 17, 1956 (Tr.' X—2589). The

mandate of the Court of Appeals was stayed on October

4, 1956 by order of that Court until November 15, 1956,

which is within the 90-day period allowed for the filing

of this petition by 28 U.S.C.A. Sec. 2101 (c).

QUESTIONS PRESENTED

(1) Does a complaint alleging that solids were de-

posited on Washington lands state a Washington cause

of action for trespass as distinguished from trespass on

the case; (2) were solids continuously and repeatedly

deposited on plaintiffs’ lands within the two-year limita-

‘References to “Tr.” herein refer to pages of the original tran-

script of record, the Roman numerals referring to volume and the

Arabic numbers to page, in the transcript heretofore filed in this

Court by the Clerk of the Court of Appeals.

3

tions period held applicable by the trial Court and up

to the time of trial; (3) was the trial Court correct in

holding that plaintiffs’ claims for injury to personal

property were limited by the Washington personal prop-

erty two-year statute rather than the Washington three-

year statute; and (4) were plaintiffs’ cattle injured sub-

stantially within the two-year period held applicable and

up to the time of trial.

STATUTES INVOLVED

The statutory provisions involved are Revised Code

of Washington (R.C.W.) 4.16.080, particularly sub-sec-

tions (1) and (2) thereof; and R.C.W. 4.16.130. R.C.W.

4.16.080 and 4.16.130 are printed in Appendix B hereto,

infra p. 100.

STATEMENT OF THE CASES

In December, 1950 (I-84), the Arvidson petitioners

filed their complaint in the Western District of Wash-

ington, Southern Division. The Whiteaker petitioners

filed theirs in that Court in November, 1952 (I-84). The

actions were tried together. The Arvidson action was

concerned with respondent’s Troutdale, Oregon alumi-

num reduction plant and the Whiteaker action was con-

cerned with respondent’s Longview, Washington alumi-

num reduction plant. Paragraph V of each complaint

(1-4, 120) alleged that respondent deposited particulates

(i.e., solids) on petitioners’ real properties all located in

Washington. By reason of such deposit, petitioners

4

claimed damage to their real properties and to the per-

sonal properties located thereon.

Because of Paragraph V, we think petitioners in both

cases pleaded (and later proved) a trespass as distin-

guished from trespass on the case as to their real proper-

ties. By reason of such pleading and because of what we

think is the applicable subdivision of the Washington

statute of limitations, we believe petitioners were entitled

to prove damages to their real properties starting at a

date three years prior to filing their complaints. Since

the statute referred to deals with trespass and the limit-

ing period therein is three years, we think it applies

to these cases.

As to their personal properties, we think petitioners

were also entitled to the benefit of the Washington three

year statute of limitations. This is so, we believe, not

because petitioners pleaded a trespass as to personalty,

but because of a distinct personalty subdivision of the

three year Washington limitations statute specifically

covering “ .. . taking, detaining or injuring personal

property ...”’ whatever may have been the theory of the

complaints as to personalty.

Whether petitioners pleaded or proved a trespass as

to their real properties was a legal question which was

ruled on by the trial court in a number of ways both

before and after the trial. What limitations period was

involved was one of those rulings. The trial court also

considered and ruled before and after trial whether peti-

tioners were entitled to the Washington three year stat-

ute as to personalty. A more detailed consideration of

—

these rulings appears under our Reasons for Allowance

of the Writ below. It seems enough to say here that the

orders (I-12, 138) and findings on limitations and on tres-

pass adverse to petitioners present the principal ques-

tions involved in this Petition.

5

To assist this Court in understanding the issues we

believe it important to note at the outset that one sup-

posed “factual” basis for the trial Court’s decision has

no support in fact at all. The trial Court said in its

written decision:

“In a number of cases previously heard in this

and other courts in this area awards for fluoride

damage resulting from operation of the Troutdale

and Longview plants have been allowed, but every

such case involved periods when little, if any, fume

control measures were taken and before the installa-

tion of the later of the fume control improvements

referred to.” (I-87; App. A, Part I, p. 80)

According to this quotation, the unique feature of

the present cases is that for the first time a court in the

Pacific Northwest was confronted with fluoride claims

involving periods of time after installation of the “later

of the fume control improvements” at the Troutdale

and Longview plants. As the trial court (I-86; App. A,

Part I, p. 79) noted, the “later improvements” at Trout-

dale were completed in November 1950 and at Long-

view im 1949. The exact dates are Troutdale, November

3, 1950 (I-25) and Longview, May 14, 1949 (1-151).

The fact is that of the four fluoride cases tried in

Pacific Northwest federal courts, one involved operations

of the Troutdale plant after November 3, 1950 and one

6

involved operations of the Longview plant after May

14, 1949. In both cases liability was found and damages

awarded. One of the remaining two cases involved Alu-

minum Company of America and the other involved the

Troutdale plant before November 3, 1950.

The Troutdale case involving a claim for damages

after November 3, 1950, was Paul Martin and Verla

Martin v. Reynolds Metals Company, Civil No. 6151

(D. Ore.). Trial of that case began December 8, 1952,

before the then Chief Judge of the Oregon District,

James Alger Fee, sitting without a jury. Judge Fee sign-

ed his findings and conclusions as Circuit Judge Decem-

ber 18, 1954. Additional finding No. III read as follows:

“III. The amount of damage sustained by the

plaintiffs with respect to their lands aforesaid and

cattle operations thereon for the period from the

commencement of operation of the Troutdale plant

on September 23, 1946, by the defendant, up to the

date of the filing of the complaint in this action on

the 22nd day of August, 1951, is the sum of $47,-

135.00.”

Additional finding No. V read as follows:

“V. During May of the year 1951, the plain-

tiffs placed upon their said lands a test herd of

healthy young cows, calves and bulls, approximately

30 in number, and prior to and at the time of the

trial of this action some of the animals in said test

herd unmistakably showed evidence of having in-

gested more than a nortnal amount of flourine, and

two of the animals slaughtered the day of the trial

commenced unmistakably showed flourosis and had

toxic quantities of flourine in their bones and tis-

sues.”

SOREN ; oe

i i a oe ROOST REN BY —

7

As just noted, the “later improvements” at Trout-

dale were completed November 3, 1950. Obviously the

above two findings, particularly Finding No. V, can

mean only that defendant in the Martin case was caus-

ing damage in 1951. In fact, Finding No. V goes further

and means defendant was causing damage in 1952 up to

the time of trial December 8, 1952.

The Longview case involving a claim for damages

after May 14, 1949, is John M. Thorup and Kate W.

Thorup v. Reynolds Metals Company, Civil No. 5884

(D. Ore.) also tried before Judge Fee without a jury

beginning August 25, 1952. Finding No. XIX signed by

Judge Fee in that case on January 9, 1953, read as fol-

lows:

“XIX. Fluorides emanating from defendant’s alu-

minum reduction plant in the period January 5, 1945

to August 25, 1952, did settle upon plaintiffs’ real

property in amounts sufficient to cause and did

cause injury and damage to the dairy animals which

grazed on the vegetation growing there. Said fluor-

ides caused damage to plaintiffs in the amount of

$14,241.26.”

Finding XIX thus covers a damage period over three

years after May 14, 1949.

To summarize, the Martin and Thorup findings mean

defendant (respondent here) was causing damage at both

plants not only after the “later improvements” at each,

but late in the year 1952. Trial of the cases at bar began

November 4, 1953 (I-102-A, 208-A).

We regret that Judge Fee’s opinions in the Martin

and Thorup cases are not reported. We also regret hav-

8

ing to quote from the findings in those cases since they

are not in the Transcript in the cases at bar. However,

they were not before the trial court either, and we feel

we must correct the impression created by the ‘trial

court’s decision that the cases at bar presented for the

first time a claim of fluoride damage after completion of

the “later improvements” at the Troutdale and Long-

view plants. In this connection, respondent’s counsel

in the cases at bar were also counsel in the Martin and

Thorup cases.

As indicated, the trial Court handed down a decision

denying liability in both cases, principally on the ground

that the deposit of solids on Washington lands is not a

Washington trespass. Of course, damages were not

allowed, The cases were consolidated on appeal and the

Court of Appeals affirmed per curiam. The Opinion of

the Court of Appeals affirmed on the Opinion of the Dis-

trict Court (X-2588; App. A, Part II, p. 95). Questions

in addition to the one just stated are set out under

“Questions Presented” supra, pp. 2-3, and will be dis-

cussed briefly below.

BASIS FOR THE DISTRICT COURT’S

JURISDICTION

Jurisdiction of the District Court was predicated upon

diversity of citizenship and amount in controversy under

28 U.S.C.A. § 1332.

— RP. PEPSI TP

REASONS FOR ALLOWANCE OF

THE WRIT

The principal point in the District Court’s opinion

(on which the Court of Appeals’ per curiam opinion and

judgment are based) is that complaints alleging that

solids were deposited on Washington lands do not state

Washington causes of action for trespass. This is a deci-

sion of an important question of Washington law in con-

flict with applicable Washington decisions.

The trial Court ruled several times whether a com-

plaint alleging that solids were deposited on Washing-

ton lands stated a cause of action for trespass as dis-

tinguished from trespass on the case. The question

was first presented to Judge James Alger Fee, then

an Oregon District Judge, now a Judge of the Court

of Appeals for the Ninth Circuit. Judge Fee was sitting

in Tacoma, Washington, and respondent moved to trans-

fer the Arvidson case from the Western District of Wash-

ington, Southern Division, where it was filed, to the

District of Oregon. In an opinion reported in 107 F.

Supp. 51 (App. A hereto, Part III), Judge Fee, after

analyzing the complaint, denied transfer principally on

the ground, as noted in the trial Court’s decision, that

an Oregon court would lack jurisdiction over a foreign

trespass upon real property because the Oregon Supreme

Court had so held. To the trial Judge this was not an

opinion on Washington law (I-96; App. A, Part I, p.

89).

10

What Washington period of limitations applied came

before the trial Court upon respondent’s motion before

trial. The trial Court by the trial Judge handed down an

informal memorandum and entered orders (I-12, 138)

before trial providing that the real properties claims and

personal properties claims (of which more below), set

forth in both complaints were limited by the Washington

two-year statute of limitations.

Finally, both the substantive law of trespass and

Washington limitations as to realty in both actions came

up on the evidence after trial and were dealt with ex-

tensively in the trial Court’s decision. The Court quoted

from its informal memorandum on the limitations point

in again ruling that the two-year statute applied. The

trial Court first held that Judge Fee’s ruling denying

transfer was rt a ruling on the Washington law (I-96;

App. A, Part I, p. 89). The Court then applied its own

view of the Washington law both as to limitations (I-97;

App. A, Part I, p.90) and as to the substantive law (1-99;

App. A, Part I, p. 91) concluding for both purposes that

the actions were trespass on the case actions and not

actions in trespass. In so ruling the Court relied prin-

cipally upon Suter v. Wenatchee Water Power Co., 35

Wash. 1, 76 Pac. 298. The Court recognized that“...

In all probability some areas in the near vicinity of the

plants receive deposits of particulates or solids in a mi-

nute and powdery form . . .” (I-92, App. A, Part I, p.

85). Nevertheless, the Court held that only where the

claimed injury is direct, does trespass lie; in the cases at

bar, the injury, if any, was indirect and the actions were

therefore trespass on the case actions (I-99-100; App.

11

A, Part I, p. 91). After explaining that the Washington

cases, especially the Suter case required this distinction,

the Court concluded:

ay

. . . Even though it were assumed that solids in

the form of minute particulates from defendant’s

plants have been deposited on plaintiffs’ lands, the

injury, if any, resulting therefrom was consequential,

the action is on the case, and awards of nominal

damages would not be justified by the facts or re-

quired by the law.” (I-100; App. A, Part I, p. 92).

This quotation plus the Court’s reliance on the Suter

opinion (which was a negligence case) is fundamental

to the trial Court’s conclusion that trespass was not

alleged or proved as a matter of law. The Court’s view

was that the deposits of solids is not enough. There must

not only be injury, but direct injury. Our view, on the

contrary, is that in a trespass case damages are presumed

from the breaking (the deposit of solids) of the close:

actual damages which is what the above extract appears

to be discussing, have nothing to do with a trespass case.

We have suggested and the trial Court recognized

that the law of limitations and the substantive law of

trespass upon real properties are connected. They are

connected because the three year Washington limitations

statute (R.C.W. 4.16.086 (1) ) specifically covers tres-

pass actions. It reads so far as presently applicable:

“Within three years:

“1. An action for waste or trespass upon real prop-

erty; **e*

In holding that this three year statute did not apply,

the trial Court cited only Suter v. Wenatchee Water

Ov ene Ses BM

12

Power Co., 35 Wash. 1, 76 Pac. 298; Weller v. Snoqual-

mie Falls Lbr. Co., 155 Wash. 526, 285 Pac. 446, and

Riblet v. Spokane-Portland Cement Co., 41 Wn. (2d)

249, 248 P. (2d) 380 (1-97-98; App. A, Part I, p. 90).

None of these three cases was pleaded in trespass. The

Suter case was pleaded in negligence and the Weller and

Riblet cases were pleaded in nuisance. Because of these

pleadings, it is difficult to see how the trespass statute

could have been held applicable.

The facts in the Suter case were that defendant had

constructed an irrigation canal. The complaint alleged

that the canal had been negligently constructed so that

surplus water escaped and flowed over plaintiffs’ lands.

A demurrer to this complaint on the ground that the

acts complained of occurred more than two years prior

to filing was overruled in the trial court. The Supreme

Court of Weshington reversed. It held that the three

year trespass statute did not apply and that the two year

statute did. It said the acts complained of did not consti-

tute a trespass. It noted that the theory of the complaint

was negligence. The court also noted that the original

construction of the canal was lawful, if negligent. There-

fore any damage to plaintiffs was an indirect conse-

quence of a lawful act. The Court recognized that the

distinction between direct and indirect injury was not

the only test of trespass in these words:

“One of the [not the only] best tests by which

to distinguish trespass is found in the answer to the

question, when was the damage done? .. . ” (35

Wash., p. 6) (quotation from the Hicks case)

“9 PAE ATNMMT ET awl

Rite mon an TN SAA ONE MEA PE a DLP LS RRR A

13

Later in the opinion the Court made it very clear

that it was holding that the three year trespass statute

did not apply because (1) plaintiffs’ own theory was

negligence and (2) because the original construction of

the canal by defendant was lawful. The Court said on

these points:

“Respondents argue in their brief that appel-

lant’s act was a forcible one, in that they assert it

let the waters into the canal through the headgate,

and that the injury to their lands was the immediate

result of such forcible act. Jt is asserted that the

water was under appeilant’s absolute control from

the time it entered into its canal from the Wenat-

chee river until it was let out at the end of the lat-

eral. Such is, however, not the case alleged in the

complaint. The complaint is based upon negligence

in the construction of the canal, and upon its insuf-

ficiency to carry the surplus water which accumu-

lated, at the time mentioned, by drainage from

above. If such were true, it is manifest that the

water was not under the immediate and absolute

control of appellant, as respondents now argue. The

theory of the complaint is that the injury resulted

from negligent construction, which occurred long

before, and whereby appellant failed to properly

handle the waste and surplus water. The act was

remote from the injury. The latter was purely con-

sequential, and not the direct or immediate result

of the former. Moreover, if respondents’ present ar-

gument were supported by the allegations and

theory of the complaint, then, even though appel-

lant had full control of the water, it still follows,

from the reasoning in the cases cited above, that it

was not doing a thing unlawtul in itself when it per-

mitted the water to run through its canal; and if,

after runing through the canal, it was negligently

permitted to escape, the appellant was liable for

consequential damages recoverable at common law

in an action on the case only, and not in an action

14

of trespass. We therefore think that, under the cause

of action stated in the complaint, our statute of lim-

jtations barred the action after two years. It follows

that the court erred in overruling the demurrer to

the complaint.” (35 Wash. pp. 8-9; emphasis sup-

plied.)

This extract emphasizes that the theory of the com-

plaint is vital. Only if petitioners’ theory in the cases at

bar was negligence, which it clearly was not, can the

Suter opinion be in point.

As noted above, the trial Court, in refusing to apply

the three year trespass statute to the present cases, re-

lied on the Weller and Riblet cases in addition to the

Suter case. Not only was the Weller case pleaded in nuis-

ance: there was no discussion in the Court’s opinion in

that case of either the substantive law of trespass or of

limitations as to trespass. In the Riblet opinion there was

clear recognition that appellant’s theory below was nuis-

ance. Appellant nevertheless, in a nuisance case, tried to

convince the Court that the three year trespass limita-

tion was properly applicable. This the Court quite cor-

rectly rejected (at p. 258 of 41 Wn. (2d) ).

As we have seen, the Suter opinion refused to apply

the three year trespass statute because the theory of the

complaint was negligence and because the original build-

ing of the canal was not unlawful in itself. We submit

that the theory of the present complaints is trespass and

that it is not lawful in Washington ur anywhere else

to deposit solids on another’s real property.

As to the theory of the complaints, Judge Fee, as

noted above, ruled in Arvidson in 1952, long before trial,

Ps SNARE ESRD AO LO LOE NU GIT AG OI II PN INI LCR LG aA G5 ALD LEST ae

dE a RD

15

that the complaint stated a cause of action in trespass.

The opinion is reported at 107 F. Supp. 51 (App. A, Part

III) and the holding to that effect is in the first para-

graph of the opinion. Because the complaint stated a

cause of action in trespass, Judge Fee held that the ac-

tion could not be transferred to Oregon. It could not be

removed to Oregon because the Oregon Supreme Court

had held Oregon Courts had no jurisdiction over foreign

trespasses upon real properties. 107 F. Supp. 51, 52; App.

A, Part ITI.

The trial Judge was of opinion that this ruling was

not a ruling on Washington law (I-96; App. A, Part I,

p. 89). On the contrary, it seems clear to us that it was

necessarily a ruling on Washington law. The complaint

alleged that the Arvidson farms were in Washington and

that appellee had deposited solids on them. (In this re-

spect the Whiteaker complaint is identical.) If that had

not been a Washington trespass, Judge Fee would have

been free to order the action to Oregon or at least the

Oregon cases dealing with foreign trespass would have

been inapplicable, and the whole basis of Judge Fee’s

opinion summarized in the preceding paragraph point-

less. Though Judge Fee’s opinion probably became the

law of the case, it is enough to point out in what follows

that he was right. This brings us to the Washington tres-

pass cases.

The Suter case was decided in 1904. In 1909 the

Washington Supreme Court not only held that the

Washington law of trespass accords with the common

law, but defined what it was at common law. In Welch

ee ee — ee aS SER NGL NEES ALE IERIE OID I ae

16

v. Seattle & Montana R. Co., 56 Wash. 97, 105 Pac. 166

at pp. 99-100 of 56 Wash., the following appears:

“It is the established rule of this court that the

question of whether an action is an action for tres-

pass upon real property depends upon what was

deemed trespass at the common law, and in order

to determine that question it is necessary to examine

the common law authorities. In 2 Cooley’s Black-

stone (4th ed.), page 208, the author says that,

‘Trespass in its largest and most extensive sense,

signifies any transgression or offence against the law

of nature, or society, or of the country in which we

live; whether it relates to a man’s person, or his

property.’ But that ‘in the limited and confined

sense in which we are at present to consider it, it

signifies no more than an entry on another man’s

ground without a lawful authority, and doing some

damage, however inconsiderable, to his real prop-

erty.’ The essential idea seems to have been the

breaking of a close by force, the words of a writ of

trespass commanding the defendants to show cause

quare clausum querentis fregit; and it was frequent-

ly called trespass vi et armis. So great a regard did

the law have for a man’s close or premises that it

presumed damages would accrue from the breaking

into or penetrating such close, even if it was no more

than the trampling of the herbage therein. An action

setting forth such facts as these was an action in

trespass, as distinguished from what was designated

an action on the case, where the injury resulting

from the action was not caused by direct force, but

was consequential or an injury resulting indirectly

from the act complained of. Mr. Blackstone, on

page 123 of Book 3 (Lewis’ ed.), makes a distinction

as follows:

“ ‘And it is a settled distinction, that where an

act is done which is in itself an immediate injury to

another’s person or property, there the remedy is

usually by an action of trespass vi et armis; but

where there is no act done, but only a culpable

17

omission, or where the act is not immediately in-

jurious, but only by consequence and collaterally,

there no action of trespass vi et armis will lie, but

an action on the special case, as the damages con-

sequent on such omission or act.’”’ (emphasis sup-

plied).

The important principle involved in the foregoing

extract is that damages are presumed from the breaking

of the close. In other words, if defendant breaks the

close, liability is absolute, damage or no damage.

This principle was dicta in the Welch case because

the Court held there was no physical invasion. 56 Wash.

97, 101, 2. The dicta were applied later, however, in Gray

v. Harris & Son, 200 Wash. 181, 93 P. (2d) 385. There,

on one cause of action, plaintiff had been awarded $100

because defendant had hauled some timber over an old

road on plaintiff's real property. The Washington Su-

preme Court’s views were these:

“(4) Appellant contends that the trial court

should in no event have allowed more than nominal

damages to respondents on their second cause of

action,

“There is no question but that appellant was a

trespasser upon respondents’ land, after redemption.

The testimony shows that it hauled over this land

at least 600,000 board feet of timber, after respon-

dents had redeemed, and before this action was be-

gun, without respondents’ permission, and without

any right so to do. However, the testimony also

shows that the hauling was upon an old road that

had been there for some ten years, and that the only

damage was such as might result from the use of

this private road. The only testimony bearing upon

the damage to the land from such hauling seems to

be based upon the claimed reasonable value per

thousand feet for hauling timber over this road. We

a

are of the opinion that there is no testimony herein

which would justify a judgment against appellant

on the second cause of action in the sum of one

hundred dollars, but a technical trespass having

been proven, we think respondents are entitled to

nominal damages in the sum of one dollar, on their

second cause of action.” (200 Wash, 181, 188-9.)

18

Obviously this extract is susceptible only of the

meaning that upon proof that the close was broken the

liability is absolute without any proof of actual damages.

Clark Lloyd Lum. Co. v. Puget Sound & C. R. Co.,

92 Wash. 601, 159 Pac. 774, also dealt with trespass.

There the railroad wanted to lay some track along the

lumber company’s property and the parties entered into

an agreement to that effect. In disregard of the rights

conferred, the railroad blasted some stumps and threw

some debris into a cove where the lumber company

maintained some booms. The question presented was

whether those acts constituted a trespass for the purpose

of the statute of limitations. The Court held that they

did. It said:

“The blasting of the stumps and the waste of

the debris over the bank and into the cove was an

immediate injury. The damages which may result

do not have to be immediate to sustain an action

under Sec. 159. The statute does not concern itself

with the moment of time when the damage actually

accrues, or the amouny of the damage. They may

continue and grow in volume. It concerns itself only

with the character of the trespass. Jf a thing lawful

to be done results in damage, the case falls under

the two-year statute. If the thing done is wrongful

in its inception to the extent that it presently in-

vades a property right, the three year statute ap-

plies . . .” (92 Wash. at p. 605; emphasis supplied.)

PRATT ELE LP LE PE RINT PLL RETO OIA crests - — B

ny ae

19

This extract is irreconcilable with the trial Court’s de-

cision and supports our view that depositing solids pres-

ently invades a property right whenever the damage was

done, and regardless of the amount thereof.

The common law of trespass has been defined else-

where exactly as it has been defined in Washington.

I Restatement of the Law of Torts, Sec. 158 at p. 359

defines trespass at common law as follows:

“One who intentionally and without a consensual

or other privilege

(a) Enters land in possession of another or any

part thereof or causes a thing or third person so

to do * * * is liable as a trespasser to the other

irrespective of whether harm is thereby caused.

ee”

Under the comment on clause (a) at page 362 ap-

pears the following:

“n. Causing Entry of a Thing. The actor with-

out himself entering the land may invade another’s

interest in its exclusive possession by throwing, pro-

pelling or placing a thing either on or beneath the

surface of the land or through the air space above

it. Thus, in the absence of the possessor’s consent or

other privilege so to do, it is an actionable trespass

to throw rubbish on another’s land, even though he

himself uses it as a dump heap, or to fire projectiles

or to fly an advertising kite or balloon through the

air above it, even though no harm is done to the

land or to the possessor’s enjoyment of it. Jn order

that there may be a trespass under the rule stated

in this Section, it is not necessary that the foreign

matter should be thrown directly and immediately

upon the other’s land. It is enough that an act is

done which will to a substantial certainty result in

the entry of the foreign matter. Thus, one who close

to another’s boundary so piles sand that by force

—— erica — OLR IMER AIR NR LOSE, OEE ERIC SOO RRR Sei eater earns

20

of gravity alone it slides down onto his neighbor’s

land or who so builds an embankment that during

ordinary rainfalls the dirt from it is washed upon

adjacent lands becomes thereby a trespasser on the

other’s land.” (Emphasis supplied.)

The Oregon District Court through Judge Fee has

had occasion recently to consider the application of the

common law of trespass to a particular fact situation.

Ure v. United States, 93 F. Supp. 779, aff'd sub nom

White v. U.S., (CA9) 193 F. (2d) 505. That case involv-

ed one group of plaintiffs who sought to prove liability

on the theory of negligence for failure of defendant to

deliver irrigation water to their crops and another group

who sought to prove strict liability on the theory of

trespass when their lands were flooded by the breaking

of an irrigation canal. Concerning the failure to deliver

water, the Court held that no negligence had been prov-

ed. Concerning the flooding cases, the Court held that

trespass involving strict liability was involved. The Court

did so in the following language:

*. . . When one voluntarily and deliberately

does an act upon his own land which results in a

physical trespass upon lands in other ownership, the

liability is absolute ...”’ (p. 787 of 93 F. Supp.)

On May 4, 1950, plaintiffs closed their cases before

Judge Fee, sitting in Oregon, in Kerr, et al., and Mc-

Callister, et al. v. Reynolds Metals Company. These

were damage actions against the Troutdale plant. De-

fendant in that case was represented bv the same law firm

as represents respondent here. Some r'aintiffs were resi-

dents of Oregon but some were residen s of Washington

so that Washington law applied to then as it does here.

21

Defendant moved for and argued a motion for an invol-

untary non-suit under R. 41-B, F.R.C.P. The Court

denied the motion and said:

“Then I think that there is some evidence in

this case from which the Court could deduce or in-

fer very properly that there were particles develop-

ed in the pots at Reynolds Metals Company that

were transferred physically onto the properties of the

plaintiffs. As to whether they caused damage or not

would then not be a question, because by mere

physical invasion plaintiffs have established their

case,

* * *

“* * * The Court is of the necessity of giving at

least nominal damages for the trespass which I

think up to this point has probably been established,

and from there on determine how many of these

claims are valid.” (Tr. in Kerr and McCallister,

846.)

87 C.J.S., Trespass, Sec. 13, is in accord with the Re-

Statement trespass rule. It reads:

“Every unauthorized entry is a trespass, regard-

less of the degree of force used, even if no damage

is done or the injury is slight and gives rise to a

cause of action for nominal damages at least... ”

(Sec. 13(b) pp. 965-6, citing Welch v. Seattle &

Montana R. Co., 56 Wash. 97, 105 P. 166, discussed

supra.)

“Entry by Thing Controlled by Defendant. The

“entry need not be in person but may be by the pro-

jection of force beyond the boundary of the land

where the projecting instrument is employei. Thus,

the trespass may be committed by casting earth, or

other substances, upon another’s land... .” (Sec.

13(c), pp. 966-7, citing Ure v. United Stat , 93 F.

Supp. 779, discussed supra).

— PHBH ee

a

22

To the same effect is 52 Am. Jur., Trespass, Sec. 12,

page 844:

“At common law every man’s land was deemed

to be inclosed, so that every unwarrantable entry

on such land necessarily carried with it some dam-

age for which the trespasser was liable. Any entry

on land in the peaceable possession of another is

deemed a trespass, without regara to the amount of

force used, and neither the form of the instru-

mentality by which the close is broken nor the ex-

tent of the damages is material. .. .”

Thus the Washington cases, the standard texts and

Judge Fee are in accord as to what constitutes trespass

at common law. Accordingly, it was error for the trial

Court to rule that the complaints did not state Wash-

ington causes of action for trespass. And it was error for

the Court of Appeals to affirm. The effect of these rul-

ings, of course, was to deny petitioners the opportunity

to prove such damages as they suffered in the third year

ruled outside the statute.

After the trial Court’s erroneous ruling on the com-

plaints, the cases went to trial and, as we shall now show,

the uncontradicted evidence was that solids were in fact

deposited on petitioners’ lands within the two-year period

held applicable and up to the time of trial. Therefore

this Court upon remand ought to direct the trial Court

(1) that a trespass was made out in the two-year period

for which proof was received; and (2) to permit proof

of such damages as may have been suffered in the miss-

ing third year.

Whether solids were deposited was a problem which

led the trial Court into contradictory results. First, as

a Seen eae a a a a ela erat -*

23

noted above (p. 10), the trial Court in its opinion said:

‘. . . In all probability some areas in the near vicinity

of the plants receive deposits of particulates or solids in

a minute and powdery form .. .” Then the trial Court

in its opinion said:

“. . . Even though it were assumed that solids

in the form of minute particulates from defendant’s

plants have been deposited on plaintiffs’ lands, the

injury, if any, resulting therefrom was consequen-

tial, the action is on the case, and awards of nomi-

nal damages would not be justified by the facts or

required by the law.” (I-100; App. A, Part I, p.

92).

Of course, this legal conclusion that the deposit of sol-

ids on Washington lands does not constitute a tres-

pass made it unnecessary for the Court to make any

finding whether or not solids were deposited. Never-

theless, the Court entered erroneous findings that it

could not determine how much, if any, fluorides were

deposited (I-102-D; I-208-B). In what follows we want

to point out that the Court’s assumption that solids

were deposited was right and its findings were wrong so

that this Court should on remand direct the trial Court

to find the fact that solids were deposited and- to con-

clude that such deposit constituted a trespass.

Mr. Zeh, respondent's chief chemist, as an adverse

witness, said that at both the Troutdale and Longview

plants 5 to 6 pounds of fluorides were consumed for

every 100 pounds of aluminum produced (erroneously

reported as “per ton’’) (III-32). He further testified that

hydrogen fluoride and cryolite were the principal fluo-

rides escaping (III-33) from the plants and that 90%

PR reo on 2 Ne Mate a TENT ELPA Y SRT RT

24

of them are solids (III-34). As to the amounts of escap-

ing fluorine, the figures are 750 pounds a day at Trout-

dale (III-98) and 250 per day at Longview before ex-

pansion of capacity from 60,900,000 to 100,000,000

pounds per year (III-71) and no less than 450 per day

thereafter (VII-1673, 1614).

Mr. Zeh said that respondent started testing vegeta-

tion in 1946 and air in 1949 around both plants in order

to determine how much fluorine was getting out and

where it went (III-37). Both plants have fume control

systems (III-33) and, generally speaking, the fluorine

in the samples declined as the controls were installed at

both plants (III-41). He then said that normal vegetation

contains 20-25 parts per million (ppm) fluorine (III-42).

Results above that range indicated to him airborne fluo-

rides (III-73), because he had tested various materials

outside of contaminated areas (III-73). Respondent’s

forage testing results near the Whiteaker place in the

last fourth months of 1952 averaged well over Mr. Zeh’s

“normal” figure of 25 ppm (III-44, I-160). Those re-

sults were also well over normal for the same four months

in the three or four years prior to 1952 (I-158-160), as

well as in the spring of 1953 (I-161). Asked whether the

increased fluorides were associated with the increased ca-

pacity at Longview (from 60,000,000 to 100,000,000

pounds per year) which took place August 1952, he said

that “good common sense”’ so indicated (III-47).

Respondent for some time had maintained a testing

station near, but not on the Rawnsley, Josephson and

Goldsmith places. Had the results been obtained on

a ene i iat a

25

those farms instead of on the station, Mr. Zeh thought

the results would have been comparable (III-66). Those

results for the summer of 1953 were at or above the wit-

ness’ “normal” figure of 20-25 ppm (I-172), and Mr.

Zeh eliminated the possibility of a non-Reynolds source

when he said, “. . . there are no other large users of

fluorine in there” (III-60).

As to Troutdale, respondent maintained 13 stations

on the Washington side of the Columbia. Had the results

obtained been obtained on petitioners’ farms instead of

on the stations, the results would have been comparable

(III-79). Later Mr. Zeh explained that the testing sta-

tions had been agreed upon for the trial because they

bracketed the farms and that the station results ob-

tained were comparable to results that would have been

obtained on the farms if the distances between the

two were reasonable (III-122). Similarly to his Long-

view testimony, Mr. Zeh eliminated any non-Reynolds

source of fluorides at Troutdale by testifying that

the only other source there was a small sawmill (III-

76). Concerning the results obtained by respondent on

its 13 stations (I-58-63), Mr. Zeh agreed that in 1948

and 1949 all stations were ove: his “normal” of 20-25

ppm at some time of the year; that all except one sta-

tion was in 1950; all except four were in 1951; all except

one was in 1952 (III-80); but that only six of the 13

were in 1953 (III-81). He didn’t know why the 1952

results were higher generally than those in either 1951 or

1953; but he saw no great difference statistically (III-

81).

—— TET NMA POM TS SS ern ar PEL AT

26

On respondent’s testing results and on the admissions

of this one adverse witness, it is perfectly clear that re-

spondent is a substantial user of fluorides at its Long-

view and Troutdale plants; that fluorides do escape from

those plants; that 90% of the escaping fluorides are in

solid form; and that more than “normal” amounts of

fluorine in solid form resularly year by year up to the

time of trial had been deposited on petitioners’ farms. If

the Court will carefully consider the references to Vol-

ume I of the transcript noted in the three preceding

paragraphs, it will be apparent that as a matter of math-

ematics respondent was depositing solids. Thus, for ex-

ample, respondent took eight samples near the White-

aker farm in the fall of 1952 beginning in September.

The results ranged from 26 to 60 ppm (I-160). Subtract-

ing Mr. Zeh’s 20-25 ppm as “normal” and applying his

90% particulates to the balance, the result establishes

solids on the testing stations.

That solids arrived on the farms does not depend

upon mathematics. There was direct and uncontradicted

testimony on the subject. Dr. William E, Caldwell, a

witness for petitioners, is a chemist who was trained in

meteorology (IV-441). He had visited the plants and

explained that when the fluorides leave the plants they

travel with the wind currents. The cloud containing the

fluorides spreads 20% of the distance traveled (IV-444)

and rises and falls 10% of the distance traveled (IV-

445). The size of the escaping solids at the two plants

is sub-micron to 10 microns. At these sizes and assuming

that 90% of what escapes is in solid form and that the

wind blows 4-6 miles per hour, the solids would travel

ESR NRRL ONE Tk rp oe OT PTT —

27

with the air stream and adhere to the ground propor-

tionately to the square of the distance from the plants

(IV-448). Dr. Caldwell had previously (IV-446) testi-

fied as to average wind speeds. He concluded by saying

that at two miles from the plants one-half pound per

acre of fluorine would be deposited annually. At four

miles the deposit would be two to three-tenths pounds

per acre per year and at eight miles one-tenth pound

per acre per year (IV-464-5). These fluorides, he said,

would be in the form of cryolite particulates, sodium

fluoride and mist particles (IV-465).

It will be noticed that the amounts mentioned by Dr.

Caldwell are measures of solids. These amounts were

elicited on cross-examination. The testimony was:

“Q. Assuming the conditions as they exist and .ex-

isted at Longview when you made your visits there,

how much fluorine in the form of fluorides would

accumulate about two and one-half miles from the

plant measuring it on an acre basis over a period of

one year, if you know?

A. Are you asking if I have an opinion of the

amount?

Q. Yes.

A. My answer to that is yes. Now are you ask-

ing for an estimated amount?

Q. That is right.

A. May I give background for my estimate?

Q. Well, you give me the answer: then you can

give the background after.

A. My estimate is that there would be approxi-

mately a half pound per acre per year at about two

miles from the plant.

Q. And what would it be at four miles?

A. It would be less at four miles, not taking

square roots.

a =

— ASME TREY REN a are PIECES NPT ATR ATE CRT MAN GE RUA SRS es

28

Q. An eighth of a pound, would you say? Dou-

ble the distance?

A. Not taking square root mentally I would

say it would be three tenths or two tenths per

pound. P

Q. What would you say about eight miles?

A. Progressively less with distance.

Q. Well, what would you estimate it to be?

A. I am not here taking square roots and carry-

ing this out exactly on an arithmetical basis. I

would estimate somewhere of one tenth of a pound.

Q. Per acre at eight miles?

A. Yes.

Q. What would that be, in what form, particu-

lates?

A. It would probably be some cryolite particu-

lates, sodium fluoride, gaseous HF which would

have then been absorbed into the form of droplets,

mist particles.

Q. That is eight miles away?

A. Yes.” (IV-464-5)

The real properties of all petitioners in both cases

are well within eight miles. Despite this and the further

fact that the trial Court obviously believed this uncontra-

dicted testimony (App. A, Part I, p. 84), it nevertheless

entered findings that it couldn’t tell how much fluorides,

if any, were deposited (I-102-D; I-208-B).

The following review of other experts’ testimony

(all on behalf of petitioners) concerning the deposit of

fluorides is to some extent cumulative. Its importance

additionally, however, is (a) three independent experts

gave their opinions that respondent was the source of the

fluorides and, (b) the same experts thought that 10-15

ppm was “normal” on pasture grasses. It will be re-

called that Mr. Zeh, an interested employee of respond-

ent, said 20-25 ppm.

—

29

Dr. Allmendinger is in charge of the Western Wash-

ington Experiment Station at Puyallup, Washington. He

has worked on the fluorine problem since 1943 (III-127).

In his opinion anything over 15 ppm fluorine on pasture

grasses or gladioli represents airborne fluorides (III-142-

143). His figure was 10-15 ppm on prunes. When the

Troutdale plant was closed from September 1945 - Sep-

tember 1946, he obtained results on prunes in the summer

of 1946 down to 17 ppm, while in July and August 1945

the results were 150 and 119 ppm (III-156). In 1947 the

prune samples were up again to over 300 ppm (III-

156). The course of his Troutdale area testing there-

after is shown by this testimony:

“Following down through the analyses we get

considerably, or I should say quite high samples

during 1947 and 1948 and there is one sample 178

during 1949, but all of the samples taken there are

much above that which would naturally occur in

1951 and 1952.

Q. Let me interrupt you for a moment if I may,

Doctor. It is also an agreed fact in the Arvidson

case as of the fall of 1950 Reynolds installed a new

control system to begin operating at that time which

increased the efficiency of its fluoride collection de-

vices from the pre-existing about 62% effective to

approximately 90. With that fact in mind would

you proceed?

A. Well, beginning in 1951 the average of the

results would be somewhat lower during 1951 and

1952 than the two samples taken in 1953. They also

show somewhat lower, but still above what you

would expect to occur without contamination.” (III-

156-7)

With respect to the agreed fact that the Longview

plant was also closed for a period of time, Dr. Allmend-

inger was questioned and responded as follows:

_ —_— SEL SLOEL ‘ EEE SOILD LF IO ERT NO PA PTL NT

30

“Now it is an agreed fact in this case that the

Longview plant was closed between the spring of

1947 and the spring of 1948. With reference to that

agreed fact would you please interpret the prune

leaf results shown on this page?

A. The best place to show that is in this location

marked ‘25th & Beech.’

Q. Where is 25th & Beech?

A. It is on the northwest side of Longview, I be-

lieve, oh approximately a couple of miles, I would

say, from the aluminum plant. The fluorine analy-

sis of these prune leaves as you will note for 1945,

the two records taken there 404, 419, show consid-

erable fluorine in the air. In fact, those are rather

high readings. 7/25/46 we got a reading of 208.

Then in June and September 1947 the readings were

quite low. Reading in 1948 again the first reading

in June is moderate and then the fluorine content

increases. Through each of the following years we

have picked up considerably high readings and you

will notice, generally speaking, there is a trend for

fluorine content of the foliage to increase from early

in the spring to the fall, This is not uniform as per-

haps you will get a low sample or high sample, but

generally speaking there is a tendency for the fluor-

ine to increase as the season advances in foliage.

Q. What do you conclude from that fact?

A. Well, it appeared that the, since the fluorine

content was reduced during the period that the

plant was out of operation and immediately started

to rise again after the plant came into operation,

that Reynolds was the source of the contamination

involved.

Q. That is your opinion?

A. That is my opinion.” (III-167-8)

Mr. Miller, a chemist and an associate of Dr. All-

mendinger, did all the fluorine analyses on the project

(V-209). He has also been engaged in the fluorine prob-

lem for nearly 10 years (III-210). In his view normal

REN RRNA SED ENT AY POIROT NE GO — |

-_-

31

forage should contain not over 10 ppm fluorine and

neither should gladioli (III-215-216). As to prunes, his

level is 15 ppm (III-216). He agreed with Dr. Allmend-

inger that the extreme variation in the fluorine content

of prunes between the times when the two plants were

open (III-217-8) and when they were closed as shown

by Exhibits 20 and 520 was attributable to respondent’s

operations (III-219).

Dr. Compton’s experience with airborne fluorides was

similar to Dr. Allmendinger’s. He had been working on

the problem since 1948 (V-998). He has worked with

pasture grasses, buckwheat, gladioli and has tested air

for fluorine content. As he spoke he was conducting

an experiment on Sauvies Island, Oregon. His con-

trol (i.e., in a non-fluorine area) stations for that ex-

periment at Dayton, Newberg and Corvallis, Oregon

show for grasses, 2 to 4.7 ppm. On his air sampling at

the Troutdale airport he got a fraction of a part per

billion fluorine (V-1015), while he never got any at Cor-

vallis (V-1051). Over 10 ppm on pasture grasses indi-

cated to him airborne fluorides (V- 1013).

Respondent’s most recent results on the testing sta-

tions nearest the Whiteaker place as shown by pp. 13-

14 of the Pre-Trial Order (I-157-161) indicated air-

borne fluorides to Dr. Compton as did also the 1951-53

results obtained by the Western Washington Experiment

Station on the Whiteaker place (I-163-164). As to the

results obtained by respondent near, but not on the

Rawnsley, Josephson and Whiteaker places (I-169-172),

Dr. Compton testified as follows:

32

“A. For 1948 on page 18 there seems to have

been quite a lot of fluorine there throughout the

sampling season, and in my opinion looks like it

would probably be airborne fluorine even though it

it what you say, five miles away?

Q. About five miles east southeast of the Long-

view plant.

A. And the same thing would seem to apply in

1949 with the exception of that sampling on August

23rd, and in 1950 there are, starting on March 17th,

values running above 10; 11 parts per million on

May 19th is borderline, and I wouldn’t say one way

or the other whether that was airborne or not, but

the others would indicate that possibly there is a

little airborne fluorine in the area, at least as indi-

cated by those samples up to the sampling of Aug-

ust 17th. From then on the values are about like our

normals or controls indicating no, in my opinion, no

atmospheric fluorine contamination from March

17th on through the sampling season.

Q. Take a look at the next page, please.

A. Well, the values run from about 3.2 parts per

million up to about 41 parts per million, and only

those values of 10 or above that I have any suspic-

ion of, and I see two twelves and I wouldn’t put

too much weight on these because these, I assume,

are single values.

Q. You may so assume. It is a single sample.

A. Yes. So the atmospheric fluoride contamina-

tion in my opinion was pretty low during that par-

ticular season at that farm except on the 18th of

August (I-171) when it went up to 41 parts per

million.

Q. All right. Now as to 1952, if you will?

A. Well, there are two or three high values there.

One, 106 on the 20th and 21st of August and an-

other value of 37 on July 22nd, and a number of,

well 10 and some twelves. In general there was at-

mospheric fluoric contamination it looks like in 1952

with the exception of those times when the values

were 10 or below. Again I would not place too much

pith hatte @ EOL OA 0 Lap tater ats FT a6 MRR te 2 oe —— |

33

importance on values running 11 and 12 because

they are borderline. As I have indicated right along,

they are on the borderline and again these are single

values.

Q. How about 1953?

A. In 1953 the values running from 29 down to

9.5; all fairly low in my opinion. I wouldn’t say

there is any atmospheric contamination on first

sampling which was January 28th or 29th it would

indicate, nor would I be very much concerned about

the samplings, the sample taken on April 29th. The

others indicate there is possibly some atmospheric

fluoride contamination in the area, but not too

much,

Q. What would you say about the period—

what would you say about the last three samples

standing alone?

A. Well, they are considerably higher than any

of the others or the average of the others for that

season indicating a little greater atmospheric con-

tamination for those three samplings.” (V-1022-.

24)

Dr. Compton’s views with respect to respondent’s 13

testing stations bracketing the Arvidson petitioners’

farms are as follows:

“Q. Have you got the Arvidson pretrial order?

A. Yes.

Q. Doctor, will you take a look at page 28 and

29. Those are agreed on figures, Doctor, and they

represent a sampling of forage grasses done by Rey-

nolds, and it is agreed that the results set forth on

those two pages for the years 1948—I am sorry, it

is three pages, and ending on page 30 (1-58-63), It

is agreed that those results on pasture grasses upon

analysis by Reynolds did contain those many parts

per million. Is there anything that you want to add

to the generalizations you made on the figures in the

other pretrial order after looking over this bunch

of figures in the Arvidson order?

ea Se. 1, TeV ay Waa IE ADS NAPPI ee RNA

—

34

A. Well, let’s take it by years. The samples tak-

en in 1948 are usually, well, with about two excep-

tions that I see now are all about 10 parts per mil-

lion, a few elevens, but some of the values go up in

the sixties and so on. For that year for those par-

ticular station samples it looks like there has been

rather an appreciable amount of contamination of

that pasture.

Q. I might say, as you probably already figured

out Doctor, the numbers at the top of the bunch of

figures indicate different testing stations.

A. Yes. I understand that, listed up above; I

see. In 1949 there are a number more stations of

10 or less, but in general there has been rather ap-

preciable atmospheric contamination as indicated

by these figures for it looks like all of those stations

for the months of the season that was sampled with

the exception, of course, of those values running 10

or less.

Considerably less contamination in 1950 as indi-

cated by a rather large number of values below 10.

There were times when there was rather appreciable

amount at some stations during that year, but by

and large the contamination was very much reduc-

ed from what it was in the previous two years.

In 1951 the valves are even lower it seems like

than they were in 1950, although that might not be

upon a little longer examination.

The last three years it looks like contamination

has been materially reduced over what it was the

previous two years.

Q. I wonder if I could direct your attention to

1952, Doctor, as compared to 1951 and 1953?

A. 1952 vs, the other two. Well, there seem to

be more high values, values above 10 for the latter

part of 1952 than there were in 1951, and especially

so at some stations. In 1953 most of the values, it

looks like, are 10 or below indicating that the con-

tamination that year was even less than it was in

1952 and possibly even in 1951. I can’t tell by

glancing at a sheet like this.” (V-1031-33)

35

Mr. Zeh had testified that he averaged the fluorine

results he obtained (III-58). In response to some ques-

tions by the Court, Dr. Compton had some interesting

things to say about averages and also the effect of the

winds upon the deposition of fluorides. The colloquy

deals with the figures at the top half of p. 22, White-

aker Pre-Trial Order (I-177-8) and was as follows:

“THE WITNESS: Well, in 1951 the average is

15.8. That would indicate for the season as a whole

there has been atmospheric fluoric contamination,

and the same thing would apply to 1952 for the sea-

son as a whole.

THE COURT: But only by a very small mar-

gin?

THE WITNESS: That is right, that is right,

very small margin, to be sure, and of course we

always have to look at what makes up an average,

and in 1952 the range is from sixty-six down to two,

quite a wide spread.

THE COURT: That is the biggest spread of

any of those?

THE WITNESS: Yes it is. It would be danger-

ous, I think, to use averages. They mask the varia-

tion that we find within the season and that is al-

ways true. If we can say this average plus or minus

value, that would give us some idea of the range we

are working with, but when we get an average like

this nineteen and you can very well see it makes

quite a difference. It doesn’t even approach sixty-

six nor does it approach two, so that average I

would think in my opinion is very misleading. It

doesn’t show. the picture at all.

THE COURT: One other question I have in

mind and that is apparently—I don’t want to an-

ticipate, maybe you are getting to this, but I’d like

to while it is in my mind.

MR. CRONAN: Very well.

THE COURT: Apparently the fluorine concen-

tration must dissipate very rapidly or, in view of the

PR eos . ean

36

fact that monthly, one month you have got sixty-

six and the next month you have got 2. Does—is it

a logical inference to draw from that that you,

that the contamination disappears very rapidly or

may disappear very rapidly?

THE WITNESS: Well, the contamination at

the source may vary, yes, and that will vary due to

wind movement. But maybe what you are getting

at is what happens in the grass itself, is that it?

THE COURT: Yes, I'd like you to give me an

explanation of how it comes about that you may

have for example, for a period of two or three samp-

lings you will have quite high readings and then all

of a sudden you will run into period when there

will be very low readings. Now the—one would—

the lay person would assume from that that the con-

tamination rather quickly dissipates or disappears.

THE WITNESS: That is exactly right. It will

depend on wind movement. If it is a steady wind

for a long period of time from certain definite

direction blowing on that farm from the source,

we could expect high values. If there are periods

of calm or periods when the wind has shifted in the

opposite direction, then the contamination would

probably be reduced to zero.” (V-1028-29)

We believe the above summary of the evidence clear-

ly shows that respondent in both cases was continuously

and repeatedly depositing solids on petitioners’ properties

during the periods for which proof was received.

We turn now to the personal property claims. In its

rulings before trial on the limitations point (this Peti-

tion, pp. 10-11) the trial Court included rulings and

orders that a Washington two-year statute applied to

the personalty claims and not a three-year statute (I-12,

138). A similar ruling was made after trial (I-97; App.

37

A, Part I, p. 91) and appropriate Conclusions of Law

entered. The three-year statute reads:

“Within three years:

* ok x

“2. An action for taking, detaining or injuring

personal property, including an action for the spe-

cific recovery thereof, or for any other injury to the

person or rights of another not hereinafter enumer-

ated; * * *” (R.C.W. 4.16.080(2) )

The two year statute (R.C.W. 4.16.130) reads:

“An action for relief not hereinbefore provided

for shall be commenced within two years after the

cause of action shall have accrued.”’

In its written decision the trial Court said it was

“fully satisfied” (I-97; App. A, Part I, p. 89) the two

year statute applied. That conclusion was “inescapable”

to the trial Court (I-97; App. A, Part I, p. 90), under

six cases which it cited, but did not analyze. The six

cases are: Northern Grain & Warehouse Co. v. Holst,

95 Wash. 312, 163 Pac. 775; Clark Lloyd Lbr. Co. v.

Puget Sound & Cascade Ry. Co., 92 Wash. 601, 159

Pac. 774; Irwin v. J. K. Lumber Co., 119 Wash. 158, 205

Pac. 424; Constable v. John P. Duke, 144 Wash. 263,

257 Pac. 637; Noble v. Martin, 191 Wash. 38, 70 P. (2d)

1064 and Luellen v. Aberdeen, 20 Wn. (2d) 594, 148 P.

(2d) 849.

We shall now analyze the cases cited by the Court.

In so doing it is necessary to have in mind that the

Washington limitations statutes are unique at least in

one respect. Most codes have a residuary or “catch-all”

statute providing a period of limitations for actions not

otherwise dealt with. The Washington two year statute

_— MOREE AW SUR AREAS TORS TR RT

38

above quoted is such a statute. However, the last clause

of the above quoted Washington three year statute deal-

ing with personalty, is also a “catch-all”.

The Washington three year statute has seven sub-

divisions. As we have seen, the first one deals only with

waste or trespass upon real property. The first two

clauses of the second (as quoted above) deal with any

injury to personal property; and the last clause deals

with “. . . any other injury to the person or rights of

another not hereinafter enumerated, .. .”” The remain-

ing five subdivisions of the three year statute deal with

specific types of injuries to “the person or rights”. The

Washington Legislature should have foreseen that when

a “person or rights” case arose which was not mentioned

in one of the five subdivisions of the three year statute

after R.C.W. 4.16.080(2), a contention would be made

that the last clause of 4.16.080(2) applied instead of the

regular “catch-all” two year statute (R.C.W. 4.16.130).

Indeed, unless some limiting language be read into the

last clause of R.C.W. 4.16.080(2), it is impossible to read

it with R.C.W. 4.16.130. The precise problem arose in

Northern Grain & Warehouse Co. v. Holst, 95 Wash.

312, 163 Pac. 775, the first case cited by the trial Court

(I-98; App. A, Part I, p. 90) in support of its conclusion

that the two year statute applied. In that case Holst, a

grain inspector, neglected to get a bond from a ware-

houseman so that Northern Grain could not collect from

the warehouse man when he defaulted. The Washington

Supreme Court solved the problem created by the Legis-

lature by first deciding that the claim against Holst was

indirect, the direct fault being that of the warehouseman

39

in defaulting. Then the Court went on to hold that where

a claim is made of injury to “the person or rights” not

covered by the five subdivisions of R.C.W. 4.16.080 after

the second subdivision, the injury must be direct to fall

within the last clause of 4.16.080(2); if indirect, the

claim was limited by the two year provision of 4.16.130.

Only that way, said the Court, could the two statutes be

read together (95 Wash. 312, 315).

An example of a direct injury within the meaning of

the last clause of 4.16.080(2) is Luellen v. Aberdeen, 20

Wn. (2d) 594, 148 P. (2d) 849, cited by the trial Court

in support of the ruling below. There it was held that a

police officer in a mandamus proceeding had suffered a

“direct” invasion, so he got the benefit of the last clause.

We do not think either Holst or Luellen applies to

the cases at bar. We are not claiming an injury to “the

person or rights” not enumerated in any of the five sub-

divisions of 4.16.080 after subdivision 2 as in those cases.

Instead, we claim that the first clause of 4.16.080(2) ap-

plies here, because of injury to “personal property”’. It

could hardly be more in point.

Perhaps the trial Court applied the two year statute

to the personalty claims ¢° bar because, having decided

that no trespass upon real property was made out be-

cause the injury, if any, was indirect rather than direct,

it thought the same distinction applied to personalty.

We are not sure of this for the Court gave no reason for

applying 4.16.130 to personalty. In any event, we think

nothing could be clearer than that appellants claimed in-

40

jury to their cattle, ic., to their personal properties.

Whether that injury be direct or indirect makes no differ-

ence because the first clause of 4.16.080(2) makes no such

distinction. The distinction is a Court created one, but it

was never applied by the Washington Supreme Court to

personal property; that is to the first clause of 4.16.080

(2). It was created out of necessity (the Holst case) and

was applied only to the last clause of 4.16.080(2); that

is, to a “person or rights” case where the claim does not

fall within one of the five subdivisions of 4.16.080 after

4.16.080(2).

Irwin v. J. K. Lumber Co., 119 Wash. 158, 205 Pac.

424, cited by the trial Court, very clearly supports our

position. That case involved an infringement of fishing

rights. The Washington Supreme Court held the rights

to be personal property and without further ado applied

the predecessor of 4.16.080(2).

The trial Court also cited Clark Lloyd Lumber Co.

v. Puget Sound & Cascade Ry. Co., 92 Wash. 601, 159

Pac. 774; Constable v. John P. Duke, 144 Wash. 263,

257 Pac. 637, and Noble v. Martin, 191 Wash. 38, 70 P.

(2d) 1064, in support of its two year personalty ruling.

The Clark Lloyd Lumber Co. case deals with the defini-

tion of trespass upon real property and the applicable

period of limitations. We quoted from the opinion in

that case (Petition p. 18). It has nothing to do with

the law of limitations as to personalty. The Constable

and Noble cases are “person or rights” cases. Like the

Holst case, they are claims not falling within the last five

subdivisions of 4.16.080(2). Like Holst they involve

_—

derelictions of duty and hence indirect injuries. Both do

no more than follow the Holst case. We have already

shown why we think Holst does not apply here.

41

The trial Court’s rulings on personalty like its rulings

on real property deprived petitioners of the benefit of the

three year limitations statute.

We now wish to show by as brief a review of the

evidence as possible that the petitioners’ cattle were in-

jured substantially in fact so that upon remand the

amount of those damages may be fixed by the trial Court

by direction of this Court.

For the purpose stated we shall start by showing

this Court that a representative group of petitioners in

each case owned cattle that respondent injured. We

want to emphasize, however, that these claims are repre-

sentative and that we are merely showing that the trial

Court was clearly wrong in finding in each case and

as to all claims that “Plaintiffs’ cattle were not injured

...” (I-102-D, 208-B). For the purpose of this show-

ing we are not unmindful of Rule 52, F.R.C.P. provid-

ing in part “ .. . Findings of fact shall not be set aside

unless clearly erroneous... ” Concerning this extract,

this Court has recently said in McAllister v. United

States of America, 348 U.S. 19, 20:

“ ... a finding is clearly erroneous, when ‘although

there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’

United States v. Ore. Medical Society, 343 U.S. 326,

339; United States v. United States Gypsum Co.,

333 U.S. 364, 395... .”

a fost

42

The representative group of claims we have men-

tioned takes the following form. There are 10 dairymen

and three beef operators in Arvidson (Miller with-

drew). Five of the dairymen are “Grade A” shippers

of milk and five are “Grade C” or “factory milk” ship-

pers. There are four “Grade A” shippers only in White-

aker. Two clear elements of damage suffered by the

dairymen are: (1) Physical abnormalities suffered by

their cows; and (2) Loss of milk production. (We

do not believe it necessary to deal here with the beef

operators’ somewhat different types of losses). Six Arvid-

son dairymen, three “Grade A” shippers and three

“Grade C” shippers, and two Whiteaker dairymen ap-

pellants, both ‘Grade A” shippers have been selected

for the purpose of what follows. We shall deal with their

complaints by categories. These complaints of the

eight farmers underlines the striking fact that the prin-

cipal differences are ones of degree and not of kind.

Moreover, as we point out below, particularly with re-

gard to milk loss, whatever the difficulties were, they

were alleviated when the cows got away from fluorides

and got worse as the fluorides increased. Completing

our review of the evidence, we shall show that there is

nothing in the trial defense inconsistent with the “.. .

conviction that a mistake has been committed... .”

1. Short Lactations

Mr. Rawnsley described a normal lactation in detail:

“Q. Could you illustrate for the Court—that is,

this document, now could you illustrate for the

Court what a normal production curve for ten

months looks like?

43

A. Well, a normal production curve as I see it,

should go up within just a point, as a point of illus-

tration, maybe five, six pounds of the peak the first

30 days and then possibly go to its peak the second

30 days, level off, maybe the same at 90 days, and

then gradually start to drop very little for possibly

two months, and then the curve would be gradual

the balance of the curve. That would be normal.

Q. Gradually take the tapering off so that the

curve is finished at 10 months, it that it?

A. That is right.” (VI-1190)

Mr. Rawnsley produced charts he had constructed

from his D.H.I.A. records on individual cows to illustrate

that his herd did not perform in accordance with his

definition of a normal lactation (VI-1182-1185).

Mr. Isbister corroborated Mr. Rawnsley. Mr. Isbister

complained of low production. He attributed the low

production to short lactations in the following language:

“Q. In speaking generally in the last four or five

years, Mr. Isbister, would you say the milk produc-

tion of your herd has been about what you expected

or otherwise?

A. No, they don’t seem to hold up like I would

like them to.

Q. What do you mean by ‘hold up’?

A. Well, they will milk good for two months

and fall away and then milk good for six months

and then fall away.

Q. How long does a cow ordinarily milk?

A. Well, I usually milk them about 10 months

altogether.

Q. You found, however, that your cows had

been drying up in anywheres from two to six

months?

A. That is right.

Q. Has that been a condition that has been no-

ticeable at any particular time, or what?

44

A. I didn’t notice it until lately. Of course, when

you sell milk you notice more than when you was-

n’t selling milk.

Q. Well now, what do you mean by lately?

A. Last several years.

Q. Last several years, did you say?

A. Yes.” (IV-481)

Mr. Seekins also expressly complained of short lacta-

tions. He said his younger cows milk longer than the

older ones and that they all hold up well for the first

part of their lactations (IV-530). He said his trouble,

concerning milk production was caused by short lacta-

tions rather than a low rate of production during nor-

mal lactations and he identified some short milkers by

name (IV-565). Mr. Depoe said that the real reason he

shipped cattle to the yards is that they weren’t milking

right (IV-593), and Mr. Stauffer said that his cows begin

to drop off after milking about three months (IV-626).

2. Low Production.

As we have just seen, five of the eight farmers, in

complaining of low production, specifically complained

of short lactations. The other three did not specifically

mention short lactations, but did complain of low pro-

duction (Whiteaker, VI-1490; Hester, IV-373; Baker,

IV-674). We relate below milk flow to fluorine intake.

3. Stiffness and Lameness.

All eight farmers complained of stiffness and lame-

ness, the only difference being one of degree. Mrs.

Rawnsley had operated the family dairy in Rose Valley

long before respondent started operating at Longview

noel

45

(VI-1142). In 1945 she first came in close contact with

the cows again. She then noticed how stiff the cattle were

and that they were hard to get on their feet (VI-1146).

This had not happened at Rose Valley (VI-1147). Mr.

Rawnsley also noticed the stiffness (VI-1192) which

disappeared when the cattle were taken away during

the flood (VI-1166). Mr. Whiteaker had some stiffness at

Kalama, 10 miles from appellee’s plant. Since the fall of

1948 the animals walk slowly and shift from one foot to

the other in the barn. Since the fall of 1952 these condi-

tions have gotten worse (VI-1490).

Mr. Hester had a lot of trouble with lameness at

Washougal (IV-369) which got better when he moved

to Aurora, Oregon (away from the Troutdale plant)

(IV-372). Mr. Isbister had stiffness and soreness on the

back of the front feet (IV-479) and he identified by

name certain animals so affected (IV-496, 497). Three

of Mr. Seekins’ seven present animals show some stiff-

ness (IV-528) and he noticed that the stiff animals are

the last ones to come in for feed (IV-529). Mr. Depoe in

1950 had three animals in such bad shape that they would

stagger into a clover field, lie down, and graze as far as

they could reach (IV-584). The animals were also stiff

in 1948 and 1949. Mr. Stauffer had some stiff and lame

cows with puffed up feet (IV-627), as did Mr. Baker

(IV-674).

4. Scouring.

Mr. Rawnsley reported serious scouring (diarrhea)

conditions. He brought in some new cows in the fall of

1949. They made good records at first, but in 1950 they

46

scoured on pasture and on silage. When he took them

off silage, they improved in three or four days (VI-

1166). As to the herd generally, it scoured badly (50%)

in October, 1952, and in June, 1953 (VI-1177, 1206-7).

On the June, 1953, scouring, milk production dropped

25% (VI-1206-7). He gets the scouring in periods of

heavy air from the direction of Reynolds and it stops

with heavy rain (VI-1177). On cross-examination Mr.

Rawnsley said, “not this type”, when asked whether

scours didn’t often concern dairymen (VI-1224).

The worst scouring the Whiteakers had ever had was

in October, 1952 (VI-1487). It hit half the herd, pro-

duction went down about 20%, and it persisted till they

had a heavy rain. They had had scouring before (VI-

1496).

Mr. Isbister said the scouring he had encountered was

different from ordinary spring scours because his cattle

got thin and dropped off in milk (IV-480). Mr. Seekins

had had scouring in the pasture season other than in the

spring (IV-528).

5. Excess Culling.

This is so related to Mr. Ross’ testimony as to what

a normal cull should be that the subject is dealt with as

a part of the analysis of the Ross testimony below.

6. Miscellaneous.

Some of the farmers said their cattle had trouble

drinking cold water (Rawnsley, VI-1196; Whiteaker, VI-

1466; Depoe, IV-586; Stauffer, IV-628; Baker, IV-675).

47

Mr. Rawnsley still has the problem, but he has cut it

down considerably by heating the water about 10 de-

grees (VI-1196). Failure to shed winter coats was a

prominent feature of the farmers’ testimony too (Rawns-

ley, VI-1193; Whiteaker, VI-1487; Hester, IV-371: De-

poe, IV-587-8). Messrs, Rawnsley and Hester reported

that this condition improved when their cattle got away

from fluorides (Rawnsley, VI-166; Hester, IV-372).

Mrs. Rawnsley reported that the cattle are smaller

than they used to be (VI-1146). Her husband produced

some weight slips (Ex. 600-D-1-A) to support his testi-

mony (VI-1173) to the effect that his cattle were over

30% short in weight. He felt this was the most serious

condition in the herd after 1950 (VI-1170). He showed

a picture of a three-year old that he thought weighed

only 55% of normal and was undersized (VI-1211). Mr.

Whiteaker reported the same condition both as to weight

and size and said the two-year olds are the worst (VI-

1461-2). Mr. Hester’s cattle didn’t hold up in flesh while

in Washougal (IV-369, 370) but they are all right in

Aurora, Oregon (IV-372). The Isbister cows got thin

(IV-480), as did Mr. Depoe’s (IV-583, 587).

We now wish to show that the documentary evidence

and the physical facts support the claims of lost pro-

duction. In the Whiteaker case, the Rawnsley and White-

aker D.H.1.A. herd books are before the Court respectively

as Exhibits 600-C and 650-C. These books show produc-

tion actually attained, fluorine or no fluorine. Experts,

whose testimony is analyzed below, stated what the pro-

duction should have been under normal conditions. The

ee

48

Rawnsley testing year is December 1 to November 30th,

and Whiteakers’ is 5/1 - 4/30. With this background the

following tables are self-explanatory.

Rawnsley

Year

Ending Normal Actual Loss Cow Actual Loss

in Production Production per Cow Number in Lbs. BF.

1948 364.7 42.3

1949 430.3 38.67

1950 411.5 37.76

1951 430* 374.8 55.2 29.92 1651.5

1952 467.5 381.1 86.4 30.58 2642.1

1953 485 354.2 130.8 38.08 4980.8

TOTAL B.F. LOSS 9274.5

Whiteaker

Year

Ending Normal Actual Loss Cow Actual Loss

in Production Production per Cow Number in Lbs. B.F.

1946 345.2 21.41

1947 357.0 27.1

1948 373.9 28.2

1949 317.0 28.56

1950 311.9 31.42

1951 400* 307.0 93. 43.54 4049.2

1952 400 335.7 64.3 51.42 3306.3

1953 400 303.5 96.5 56.33 5435.8

TOTAL BF. LOSS —12791.3

The loss of butterfat for the three years based on the

above tables is for Rawnsley about 9300 pounds and for

*The Rawnsley test year starts about the time of year that the

vomplaint was filed, so the Rawnsley loss has been computed for

the purpose of these tables to include the two years prior to filing;

that is, starting 12/1/50. The loss is then continued through the

year after the filing and up to trial. The Whiteakers’ test year

begins about six months prior to the filing date and their loss is

figured beginning with their test year starting May 1, 1950. This

is not quite accurate since the statute of limitations was held ap-

plicable prior to November, 1950. It is however, believed suffici-

ently accurate for purposes of this petition.

- egy

49

Whiteaker about 12,800 pounds. The milk vouchers for

the two farms are before the Court (Exhibits 600-A, 650-

A). They show that Rawnsley’s actual butterfat sales

ranged from $1.35 to $1.42 per pound within the period

of limitations prior to filing, held applicable, and down

to the start of the trial. Similarly, Whiteakers’ price

range was from $1.32 to $1.46.

We wish the Court to note, first, from the above

tables, that, if one measures the Rawnsley-Whiteaker loss

solely by the difference between what was actually pro-

duced in the highest years (Rawnsley, 1949, White-

aker, 1948) and what they actually produced thereafter,

in other words, even if one disregards the expert testi-

mony completely, the loss is still considerable. Next, as

detailed below (pp. 50-51), those highest actual years are

the years in which the he-ds got the least fuorine.

As to the Arvidson case, Messrs. Hester, Stauffer and

Baker are “Grade A” shippers, and Messrs. Isbister,

Seekins and Depoe are “Grade C” or “factory milk”

shippers. Milk slips and a record of the number of cows,

butterfat produced and price received for all six of these

petitioners are before the Court (the “A” and “C” series

of exhibits as to each; see, for example, Hester—180-A,

180-C, I-222, II-vii). These documents show the amount

of butterfat actually shipped each year within the period

of limitations, prior to filing, held applicable, and down

to the start of the trial. Based on the difference between

what Mr. Ross (petitioners’ cattle expert) said these

cattle would produce under normal conditions and what

they did produce, Mr. Hester has lost over 10,400 pounds

— amr Sor nanceanengmnmeenn

50

B.F. in a period when his actual sales producea between

$1.01 and $1.29 per pound. Mr. Stauffer has lost over

8,200 pounds and his price range was $1.13 to $1.41. Mr.

Baker’s loss in pounds is over 17,600 and his price range

was $1.11 to $1.41. Mr. Isbister lost nearly 2,900 pounds

at prices between 66 cents and 91 cents, Mr. Seekins’

poundage loss was over 2,500 and his price range was

70 cents to 95 cents. Mr. Depoe’s shortage in pounds is

nearly 7,000 at prices between 58 cents and 82 cents.

We pointed out above (p. 48) that in the fiscal year

12/1/48 - 11/30/49 the Rawnsley farm, as shown by

the D.H.1.A. record book, produced 430 pounds B.F. on

the average. Over six months before that year began, the

herd stopped eating anything that could have been con-

taminated (VI-1167). Not until four months after that

test year began did it consume home grown feed again

(VI-1169). Prior to that year it consumed home grown

feed and produced less and after that year it steadily

declined (p. 48). The greatest rate of decline after the

yeer 12/1/48 - 11/30/49 was in the year 12/1/52 -

11/30/53 (p. 48) and in that year respondent emitted

80% more fluorides than previously because it had ex-

panded its production (VII-1673). This production per-

formance is based on the physical facts alone, as shown

by Mr. Rawnsley’s testimony as to where the cattle were

and what they ate.

The physical facts as to Whiteaker (p. 48) are that at

Kalama, 10 miles from Reynolds, the herd average gradu-

ally increaséd from 345.2 butterfat for the year 5/1/45 -

4/30/46 to 357 butterfat for the year 5/1/46 - 4/1/47.

Sl

The rate of increase went up at Kalama in the next year

ending 4/30/48 when the Reynolds plant was closed and

was 373.9. Then the herd moved next door to Reynolds

and the plant reopened. There was an immediate de-

cline of over 15% to 317. Except for the year 5/1/51 -

4/30/52, the herd production has stayed about that level.

The reason for the increase is clear. Mr. Whiteaker testi-

fied that starting in October, 1951, there was a substan-

tial infusion of new blood in the herd (VI-1506, 7). When

Reynolds increased its production in the fall of 1952,

thereby emitting 80% more fluorides, there was a de-

crease of 10% to 303 for the year 5/1/52 - 4/30/53

though only one-half of that year was affected by the

increased fluorides (August 1952 - April 1953). 303 was

the lowest the herd ever produced.

As to the Camas-Washougal area, the Hester pro-

duction performance also clearly shows the connection

between fluoride intake and butterfat production. Mr.

Hester testified how many cows he had at Washougal

and Aurora and his milk vouchers at both places are

before the Court. He was at Washougal from June 1947

to September 1951 (IV-338) and has since lived in

Aurora (away from the Troutdale plant) (IV-337). Mr.

Hester’s winter roughage at Washougal the first two

winters he was there was substantially all home grown

(IV-380, 407); and it was substantially all Goldendale

hay thereafter. Of course, he was away from fluorides

after September, 1951. For the first two years (beginning

in each case in December) at Washingal, Mr. Hester’s

average production was steady and bad; it was about

——— P rete PIE RSRP LAE Dn as Nab

52

210 pounds B.F. For the year December 1949 - 1950 it

was about 285; and for the next year it was nearly 325

with the last one-third of the year at Aurora. In April

1952 the herd was hit with Bangs disease (IV-340) and

the age of the herd at the time of trial was four to five

years. At Washougal it had been six to seven years. (Mr.

Ross (V-780) and Mr. Rawnsley (VI-1186) defined the

term “mature equivalent” to the effect that young cows’

production is adjusted to allow for their immaturity.)

Despite the change in age, the Hester’s production has

remained at about 325.

So far we have shown that petitioners’ cattle were

injured substantially (a) because the cows had some-

thing wrong with them in fact; and (b) because the

cows were producing less than they should have. On

these two subjects petitioners’ experts testified corrobo-

rating petitioners. Let us review their testimony.

Dr. Keller was the regular veterinarian for the Arvid-

son petitioners from 1945 till he went into the Army in

1952. When he first got into the Camas area where the

herds were, here’s what he found:

“I moved to Camas-Washougal area as I have

stated in the fall of 1945. Shortly after that through

my own observations of the animals, through the

complaints of the farmers, their troubles and just

living with it, in the area, running a general prac-

tice, we became aware that there was some prob-

lem, acute problem in the area.

Q. What was the nature of the complaints you

were told about?

A. The complaints and observations were of

such things as the animals for production, the ani-

53

mals not producing as the farmers stated the way

they should, and buying better bulls all the time.

Buy better cows yet can’t produce any milk; their

heat cycles, the animal did not come in heat after

freshening, therefore they do not, are not able to

keep up what they call Grade A basic milking pro-

duction as they should.

Q. Wil! you explain that a little?

A. Dairymen in selling milk is not just paid for

all his milk at one price. He has what we call a

basic. In other words, that is a minimum amount of

milk he produces usually ascertained as to the mini-

mum two months of any year. That is his basic and

that is the way it is ascertained. In other words,

what they are trying to get at is for a dairyman

not to produce milk during the lush grass months,

but rather keep a constant milking for the year

around, Therefore, he gets a much higher price for

what we call the basic amount of butterfat that he

has and the rest of his milk goes for what we call a

surplus or a price much less than his basic. There-

fore, it is advantageous for him to have his cattle

freshening at regular intervals the year around to

keep up a constant and even milk flow. It benefits

him very much financially.

Q. Go ahead, what other conditions were re-

ported to you, if any were?

A. Conditions such as the heifers being stunted,

not growing as they should even though they were

grading them. Such things as that.

Of course, by observation I observed teeth le-

sions, complaints, both from my personal observa-

tion and also the farmers’ history, diarrhea in the

animals. Also ‘hoof complaints and observations of

animals walking stiff, of animals’ hoofs abnormally

growing out and generally unhealthy and unthrifty

condition of the dairy herds from men that I knew

are good dairymen from being with them and see-

ing the way they are running their dairy farms.”

(IIT-245-247)

————

54

Dr. Keller investigated these complaints and soon

concluded that the problem was fluorosis which he de-

fined as follows:

“Now Doctor, basied on the investigation that

you are telling us about and your study of this

problem, can you advise the Court as to what the

symptoms of fluorosis are in cattle?

A. In my opiniom there are two distinct classes

of symptoms of fluorine poisoning in cattle. One

is the acute symptoms of fluorosis such as diarrhea,

lack of appetite. Under acute you can put reduced

milk production also. Rough hair coat, lameness,

walking with a rather arch in their back. Also we

have the symptoms of chronic fluorosis which are

evidenced by mottling, staining, abnormal wear of

the teeth, exostosis off the bones, elongated feet, and

also lamenesses that are caused by permanent bone

malformations or exostosis.

THE COURT: Is fluorosis a kind of a general

term that refers to all kinds of disabilities that

comes from fluorine, or is it limited to a certain

kind? What does that word mean?

a ie

A. Fluorosis is in my opinion a term, explana-

tion of the term is the, is syndrom of both chronic

and acute symptoms produced in cattle by the in-

gestion of fluorine compounds.” (III-250-251)

He continued to work on the problem. In 1950 he ex-

tensively surveyed areas around aluminum plants and

away from them with another veterinarian; he found no

symptoms in the outside areas. Based on seven years’

histories as to the Camas area plus his observations of

the teeth and condition of the cattle, Dr. Keller testified

that the Arvidson herds had fluorosis as of the time he

was testifying and earlier. He felt sure that the Hester

cattle were in much better shape when he saw them in

—-

a

55

Aurora, Oregon, than they had been at Washougal (III-

271). Fluorosis was present in the Whiteaker herds also

as of November 1953, said Dr. Keller. These latter herds

he had seen but once, but, of course, he had his general

background to aid in diagnosis.

Dr. Guard had seen the Arvidson herds but once,

but he had been the regular veterinarian for the White-

aker herds since 1946. As to the Arvidson herds Dr.

Guard did not see Hester’s or Stauffer’s and he was

unwilling to make a diagnosis of the Norelius, Johnston

and Ray Arvidson herds because the tooth picture was

inconclusive and he did not have the histories (VII-

1780, 1784, 1785).

Dr. Guard had not only been the regular veterinarian

for the Whiteaker herds; he had examined 100 herds in

the Longview area for fluorosis (VII-1747), including

some for Reynolds (VII-1786). On cross-examination,

he said he thought all 100 herds were affected by fluoro-

Sis except those protected by a hill between them and the

Reynolds plant (VII-1805). In the summer of 1953 he

saw three herds in the Longview area and located near

the Rawnsley, Goldsmith and Josephson places. He

named the owners and at that point in his testimony

generalized to say that in his opinion the herds are worse

now (1953) than they were a couple of years ago (VII-

1760). Dr. Guard was in general agreement with Dr.

Keller’s definition of fluorosis (VII-1748).

Probably the sharpest area of conflict between Drs.

Keller and Guard on the one hand and respondent’s vet-

erinarians on the other is that Drs. Keller and Guard be-

. E

lieved that cows were necessarily injured systemically

(i.e., for example, they were producing less milk than

they should) if there were fluorine stains on their teeth.

On cross-examination Dr. Keller put it this way:

“Q. Is it conceivable that this condition where

teeth are stained can be characterized just as a cos-

metic matter, that is, just a matter of appearance

and nothing else from the standpoint of the ani-

mal’s wellbeing?

A. I don’t understand your meaning of cosmetic

there.

Q. Is it possible to have stained teeth without

skeletal or systemic damage to the animal, that is,

without these other symptoms that you referred to?

A. In my opinion, no on acute fluorosis.

Q. In other words, you would state that wher-

ever you had stained teeth it would mean that there

would be some other damage to the animal?

A. Where you have the chronic symptoms of

fluorosis I believe that there is an internal damage

also. If the animal is taken out of the area, then the

acute symptoms probably and will most of them

not be evident.

Q. Is it possible to have damage—is it possible

to just have the stained teeth without any other im-

pact upon the animal physically?

A. In my opinion when the animal has ingested

enough fluorine to stain the teeth there is a very,

very great internal and systemic damage.” (III-

311-312) :

On direct examination, particularly with reference

to the Goldsmith (VII-1770) and Ford (VII-1779)

herds, Dr. Guard corroborated Dr. Keller. Dr. Guard’s

opinion was that if some animals in a herd showed fluo-

rine stains on the teeth, the milk production of the herd

was affected. He made this very clear on cross-examina-

tion as follows:

57

“Q. (Continuing) Dr. Guard, I now refer to your

Statement with reference to the damaging effect of

fluorosis on the herd as to its—strike that out. You

recall testifying, Dr. Guard, before noon recess that

if you find fluorosis in some of the cows of a par-

ticular herd you diagnose the entire herd as being

damaged by fluorosis, is that correct?

A. I have always made that assumption, yes.

Q. And under those circumstances that herd has

no value as a dairy herd in that place; you recall

saying that?

A. I will qualify it to Say a profitable dairy

herd.” (VII-1826)

In support of Dr. Keller’s and Dr. Guard’s opinions,

it is worth pointing out that Dr. Guard, upon a routine

post mortem examination of a Rawnsley cow, had dis-

covered considerable kidney damage and completely

destroyed gland tissue (VII-1839). Dr. Guard also con-

sidered, in his testimony, the physical fact that the

Whiteaker herds had fallen off considerably since the

fall of 1952 when Reynolds started putting out 80%

more fluorides than formerly (VII-1673). He said:

“Q. Doctor, there is evidence in this lawsuit that

those four herds that you have been taking care of

in Longview since 1946 have fallen off very con-

siderably in their milk production beginning last

fall. Those are the figures I read you this morning.

In the light of that fact, which is in evidence here,

what have you to say as to economic damage to

those animals? —

A. Well, that is why I have drawn my conclu-

sions that when their ingestion of poison which af-

fects metabolism so severly and the first symptoms

that a cow shows whether it is fluorine poisoning

or too much apples, they drop in the milk produc-

tion. I mean that is one of the first symptoms that

an animal takes in something abnormal to her sys-

_ —_— os ENTER NS Ain HINT LRE RS ES SU

58

tem before they even have time to bother the teeth,

would make her drop in milk production.

Q. In other words, the first thing that happens

when a cow gets sick is that she loses milk?

A. Right.” (VII-1836-37, emphasis supplied)

It was also Dr. Chapman’s view (for respondent) that

loss of milk production was the first characteristic of a

sick cow (VIII-2134-35).

As pointed out below (pp. 68-74), respondent’s three

veterinarians’ views to the contrary of the views ex-

pressed by Drs. Keller and Guard have considerably less

support in the transcript. Other things being equal, they

did not see the cows nearly as often, they had no his-

tories to work from, they took no production records

into consideration and they conducted no post-mortems.

Rex Ross was petitioners’ cattle expert. Respondent

apparently could find no witness to rebut what he said.

Mr. Ross gave his opinion as to what all eight dairy

farms (except Mr. Rawnsley’s) would produce under

normal conditions and he also said what their culling

rates would be under normal circumstances. As to Mr.

Ross’ qualifications, he has imported some 60 Jersey

cattle which sold here from $1800 to $5000. When he

first bought cattle on the Island of Jersey there wasn’t

much available in the way of production records, and

so he judged production solely on conformation (and,

at average prices, he bet $180,000 on that judgment)

(V-771). In his testimony, Mr. Ross said on cross-

examination. that he did not rely on, or even consult,

production records even when they were available in

buying cows for his own herd (VII-1569-70). Mr. Ross

59

is frequently a judge at stock shows (V-772); he was

president of a milk distributing outfit for 10 years (V-

773); and he was President of the Oregon Jersey Cattle

Club for two years. He frequently buys cows for com-

mercial operators (V-775).

With Mr. Ross’s background, particularly with his

experience in buying cattle by eye alone, it is not sur-

prising that he was able to state what production would

be obtained under normal conditions as to the Arvidson

herds though he saw them only in 1951 and 1953 and

to state what normal production would be as to the

Whiteaker herds (except Rawnsley’s) though he saw

them only in 1953. His normals were based not only on

the cattle themselves, but on the manner in which they

were cared for, what they were fed, etc. (See, for ex-

* ample, his discussion of the Isbister herd (V-785-790).)

The fact that Mr. Ross did not know what the Arvidson

herds were actually producing before he saw them (V-

814) nor before he testified (V-834) is additional evi-

dence of his ability to judge production by eye alone.

The approximate difference, in terms of lost butterfat,

between Mr. Ross’ normal production and actual pro-

duction is summarily stated above (pp. 49-50).

Further support for Mr. Ross’s normals lies in the

Whiteaker settlement story. Normal at that farm would

be 400 pounds B.F., Mr. Ross said (VII-1550). When

Reynolds settled with the Whiteakers up to November

1948, they received 20% in addition to actual produc-

tion for the three prior fiscal years (VI-1474). Those

three years average 358.7 (p. 48) and only one of those

we SPU LES oP HOE IRE PEER YI

60

years was a non-fluorine year (p.51). 358.7 plus 20%

equals 430.4.

Mr. Ross also testified what normal culling ought to

be. Mr. Isbister’s should be 10 to 15%; Mr. Stauffer’s,

18 to 20%; and Mr. Baker’s 15 to 18% (V-819, 821).

Mr. Isbister was raising two to three heifers per year

(IV-485) for a herd averaging 7.1 cows (IV-473). This

is a culling rate of about 35%. Mr. Stauffer has had 27

cows on the average beginning in 1948 (IV-660). He

raises seven to 10 heifers per year which are not enough

to keep the herd going (IV-627). This is a cull of over

32%. Mr. Baker has averaged 28 cows (IV-671); he

raises 6 to 8 heifers per year (IV-675) for a cull of 25%.

Finally with respect to Mr. Ross’ testimony, he had

occasion to see the Hester cattle several times after they

were moved to Aurora. They are in better shape now

than when he first saw them in 1951 after the move

from Washougal (V-818). In seeing petitioners’ cattle,

Mr. Ross saw quite a lot of scouring and rough hair

coats (V-825). He also saw some stiffness in the herds

and he mentioned the Depoe herd in this connection.

Mr. Ross corroborated Mr. Rawnsley in general as to

the duration of a normal lactation (V-830).

Ross Coie was the Manager of Evergreen Breeders,

an artificial insemination organization. Sires from Ever-

green have been used in the Rawnsley herd since 1947.

Beginning in 1952, the Evergreen producing daughters

constituted the majority of the herd and in 1953 strong-

ly predominated (VI-1279). As of 1953, Mr. Coie testi-

fied that normal production of the Rawnsley herd would

61

be 485 B.F. (VI-1279) which is only 55 pounds more

than it did do (without Evergreen) in the fiscal year

ending 1949. In 1949 the herd had been subjected to the

least amount of fluorine in any year for which records

are available (p. 50). Exhibit 914 shows the high quality

of the Evergreen bulls used at the Rawnsley place. One,

for example, used on farms other than Rawnsley’s, in-

creased the daughters’ production over their dams by 64

pounds B.F. (VI-1266). Clearly this confirms the reason-

ableness of Mr. Coie’s normal.

Mr. Coie was thoroughly familiar with the Rawns-

ley farm and the Rawnsley cows. He had been on the

farm from time to time over the last 10 years (VI-

1260). He also was familiar with what fluorosis cows

looked like, having seen them when he was County

Agent for Clark County in 1942-1946 (VI-1258). In go-

ing over the Rawnsley farm he had observed the quality

and amount of the roughage grown there and thought

the place would carry 50-60 cows and their replacements

(it has averaged about 36 cows for the last Six years) (p.

48). He had seen Mr. Rawnsley feed his cows and

thought he fed good quality feed liberally (VI-1271). He

took these factors into consideration in estimating nor-

mal production (VI-1279).

Mr. Coie was on the place in June, 1953. He thought

(as did Mr. Rawnsley) that the cattle were 30% under-

size; that they were stiff, thin and long haired and that

the calves were a disgrace (VI-1283). On cross-examin-

ation, Mr. Coie said he knew how the cattle were fed

because he had studied the feed records (VI-1293).

62

Dr. A. O. Shaw, Chairman of the Department of

Dairy Science at Washington State College, is a specialist

in the nutrition of dairy cattle. He had prepared an exhib:¢

(915-332) which showed how much nutrients it took to

produce various amounts of milk. This exhibit was re-

ceived without objection (VIII-2151). Dr. Shaw had

visited six of the eight farms discussed in this petition.

On the witness stand he was informed what Messrs.

Rawnsley, Josephson and Goldsmith fed their cattle and

he testified that what they fed was enough to maintain

body weight and make the normal production the cattle

experts had testified to (VIII-2163-2166). At that point

the following stipulation was entered into:

“MR. CRONAN: Your Honor, I believe it may

be stipulated between myself and counsel for the

defendant that the witness, Dr. Shaw, has familiar-

ized himself with the amounts of feed fed by the

farmers in each of the cases now being tried and

that his opinion would be if asked, that that level

of feed intake is sufficient to support the production

on the average per cow in each herd in litigation

under normal circumstances as that production is

defined under normal circumstances in this record.

THE COURT: To which the defendant stipu-

lates that the witness would so testify, and you want

your reservation of your objection to it on the

grounds that you already stated, namely specula-

tive and so forth, is that right?

MR. YERKE: Yes, and also, of course, your

Honor, the additional objection that the hypotheti-

cal question fails to take into consideration the age

and breeds of the animals involved.

THE COURT: As I understand it, the matters

that may be assumed by the witness are basically

the same matters obtained by Mr. Ross by way of

hypothesis when he testified what he considered

normal production under normal circumstances.

.

63

MR. CRONAN: Yes.

MR. YERKE: All right.

MR. CRONAN: Also the normal levels are

those testified to by Mr. Ross.

THE COURT: Very well. The objection will be

overruled and the stipulation will be received and

I will then understand from this that the witness

now on the stand would, if he were taken through

each of the several herds, testify that in his opinion

the quantity of feed referred to in the testimony of

the several claimants for plaintiffs would produce

the quantity of butterfat per cow per herd per

year that has been put into the record by the wit-

ness Ross and witness Coie, correct?

MR. CRONAN: Correct, your Honor.” (VIII-

2168-2170)

Dr. Cheldelin, an Oregon State College bio-chemist,

had done research work with organic and inorganic fluo-

rides which involved taking the enzyme systems out of

animals and studying their behavior as they oxidize glu-

cose in the presence of both types of fluorides (TX-2516).

Although an aluminum plant discharges inorganic fluo-

rides, his opinion was that the grasses with which they

come in contact would convert some of them into organic

fluorides (IX-2518), and that the organic fluoride which

would be the most likely product is fluoro-acetate (IX-

2524). Dr. Cheldelin had personally experimented on

animal tissue with fluoro-acetate and sodium fluoride

(as indicated below, respondent's experts used the latter

exclusively) (IX-2525). Dr. Cheldelin explained that

sodium fluoride will block the conversion of starch, but

not fat or protein so that it takes a lot more sodium

fluoride to have a lethal effect upon an animal (IX-

2528). On larger animals, sodium fluoride will cause a

TO AE EN aon ™ PSE os RRS SAIN MORE TONES

64

discoloration of the teeth, but fluoro-acetate will cause a

reduction in the rate of metabolic processes (IX-2531). A

cow receiving a sub-lethal dose of fluoro-acetate would

accordingly lose milk production as an early effect. 1 ppm

in the forage of a 1200-pound cow would be enough to

cause severely toxic effects, if not death (IX-2535). Dr.

Cheldelin was asked to comment on the relation between

feeding sodium fluoride at rates from 7 to 75 ppm (re-

spondent’s experts’ experiments) and the feeding of for-

age which had been exposed to hydrofluoric acid and

cryolite from am aluminum plant. He saw no connection

between the two, although the sodium fluoride feeding

would demonstrate the effect of sodium fluoride (IX-

2534).

We grant that Dr. Cheldelin had never extracted

fluoro-acetate from grass growing around aluminum

plants. He had experimented with fluoro-acetate, though,

and knew its effects. In view of the undeniable fact

that petitioners’ cattle produced less with Reynolds’ fluo-

rine than without it, is not Dr. Cheldelin’s view that

they were eating something having a different effect

than sodium fluoride more reasonable than the opinion

for respondent that they were eating the equivalent of

sodium fluoride?

Respondent, defending, took the unqualified position

that no farmer had suffered any loss that was attributa-

ble to Reynolds’ operations. Speaking generally, re-

spondent produced, in support of this position, Drs.

Phillips and Schmidt who saw none of the cattle, but

who were conducting admittedly uncompleted experi-

ments, respectively in Wisconsin and California. These

65

experiment were being carried on for the purpose of

showing that milk cows fed sodium fluoride for the

first time after they reached maturity at levels in

excess of the fluoride levels to which petitioners’ cows

had been subjected, suffered no damage. This, of

course, assumes that sodium fluoride has the same effect

as fluorides from an aluminum plant. Whatever the ef-

fect of sodium fluoride upon milk cows may be, we have

seen from the physical facts in evidence alone (pp. 50-51)

that fluorides from an aluminum plant do cause a loss

in milk production. Moreover, Dr. Cheldelin’s testimony

reviewed just above raises at least a very considerable

doubt that the cattle were consuming the equivalent of

sodium fluoride.

Respondent also produced three veterinarians, Drs.

Garlick, Phelps and Chapman. Dr. Garlick saw the

Arvidson herds once in 1951 and the Whiteaker herds

once in 1952. Dr. Phelps saw the Arvidson herds in 1951

with Dr. Garlick; and he saw them again late in the

summer and fall of 1953. Dr. Phelps saw the Whiteaker

herds in the summer and fall of 1953 as did Dr. Chap-

man. Dr. Chapman also saw the Arvidson herds in the

summer and fall of 1953 with Dr. Phelps. Some of these

herds were seen several times by one or more of the

veterinarians, Substantially, though, Drs. Phelps and

Chapman saw the Arvidson and Whiteaker herds just

before trial; Drs. Garlick and Phelps saw the Arvidson

herds two years earlier in 1951; and Dr. Garlick saw the

Whiteaker herds late in 1952.

With one or two exceptions not worth mentioning,

respondent’s veterinarians saw nothing wrong with peti-

66

tioners’ cattle and inferred there had been no economic

damage. With the exception of Dr. Garlick, who looked

into the Whiteakers’ milk production once early in 1951,

nobody testified for respondent whether the actual milk

production was more, less or about the same as it should

have been. All of the production records in both cases

were available to respondent before trial; in fact, the

Whiteaker petitioners’ herd books are still marked as

deposition exhibits.

We think the reason nobody testified for respondent

how close actual production was to what it should have

been is because the production records would not stand

analysis and respondent knew it. Instead of producing

catthke experts, respondent relied on the admittedly in-

complete experimental work of Drs. Phillips and Schmidt

and the three veterinarians. These veterinarians had

done no experiments of their own relating fluorine in-

take to butterfat loss. They nevertheless testified that

there couldn’t have been any butterfat loss because the

degree of tooth damage was too slight. In so concluding,

they were obviously relying on the incomplete experi-

mental work of Drs. Phillips and Schmidt.

This incomplete experimental-seldom seen cattle de-

fense prevailed below. Obviously the trial Court gave

more weight to it than to (a) observations of dairymen

who had operated in and out of fluorine conditions up

to 40 years, (b) the physical facts clearly showing that

there was a butterfat loss, and (c) petitioners’ experts.

The trial Court particularly relied on Drs. Phillips and

Schmidt (I-93-4; App. A, Part I, p. 86).

alee ai at -

67

No invidious comparison is intended between the

experts on the two sides. Other things being equal, how-

ever, it is pretty clear that Drs. Keller and Guard were

in a better position to diagnose the presence or absence

of fluorosis in the cattle than were Drs. Garlick, Phelps

and Chapman. Starting about eight years before the

trial, Drs. Keller and Guard were the regular veterinari-

ans for petitioners’ herds. Accordingly, they were in a

much better position than respondents’ veterinarians to

observe and they did observe the abnormalties of which

the farmers complained.

Petitioners’ cattle expert, Mr. Ross, was qualified to

judge production based solely on observation. As we

have seen, he bought cattle without considering produc-

tion records either because there weren’t any or, if there

were, because he didn’t think them necessary. He testi-

fied what petitioners’ cows (except Rawnsley’s) would

produce under normal conditions. Mr. Coie, speaking

from personal knowledge of the sires used in the Rawns-

ley herd and personal knowledge of the farm, testified

as to those cows’ normal production. Dr. Shaw, a clearly

qualified nutrition expert, testified that what the farmers

said they fed was enough to maintain body weight and

the normal production testified to by Messrs. Ross and

Coie (pp. 62-63). Respondent made no effort whatever

to rebut any of the testimony referred to in this para-

graph.

Dr. Cheldelin did not disagree with the sodium fluo-

ride work of Drs. Phillips and Schmidt. He did, however,

testify that what the cattle were eating was not the

equivalent of sodium fluoride.

— PRATER LRTI: ENF Seen *

68

We shall close our remarks on the trial defense by

commenting briefly on the testimony of Drs. Garlick,

Phelps and Chapman.

Dr. Garlick was not unfamiliar with the complaints

voiced by the farmers in the present cases. When he was

in private practice in Tacoma, Washington, he was the

regular veterinarian for the Eschbach herd which is near

the Tacoma aluminum plant. In 1942 here’s what he ob-

served wrong with the Eschbach herd:

“A. Well, when the animals become ill the first

thing I noticed was, in the Eschbach herd of course,

and that was a lameness, very acute lameness in the

front feet particularly inside claws of the front feet,

and that lameness interfered with the ability of the

animals to forage. There was a concurrent loss in

the body weight. There was a deterioration of the

animals as far as general health was concerned.

“It showed such known specific symptoms as

rough hair coat. Those animals that were down and

could not walk around did not wear back their feet

properly and so the—the toes had a tendency to

grow out. There was a drop in milk production in

that herd.” (VII-1859-60)

Dr. Garlick later testified that slight mottling of

teeth could occur without the occurrence of any of the

Eschbach symptoms, which symptoms he described as

“systemic”. However, what level the fluorides the Esch-

bach herd encountered and what the condition of their

teeth was, Dr. Garlick did not say.

When Dr. Garlick saw the Depoe (one of petitioners)

herd he photographed some animals with an odd stance.

He commented on the pictures at the trial and said the

Zz

trouble was osteomalacia, not fluorosis. He distinguished

between the two on cross-examination:

“Q. You have seen many cows that had fluorosis

that had exactly that same gait and same stance,

haven’t you?

A. No, I have not. There is a difference because

in fluorosis animals the tenderness is very acute in

the front feet and an animal that has fluorosis will

generally go down on her knees or stand with her

legs doubled forward, her front legs doubled for-

ward and trying to take as much weight off as pos-

sible over those front legs rather than trying to

evenly distribute it over the four.” (VII-1873; em-

phasis supplied.)

69

Mr. Isbister encountered precisely this difficulty with

the front feet of his animals (IV-479).

Dr. Garlick saw the production results in the White-

aker herd book in May, 1951 (VITI-1919). He then

also saw the animals in the field but did not look

at any teeth although he knew fluorine might have been

a problem in May, 1951, because the herd was in a fluo-

rine area (VIII-1956). Based upon Dr. Garlick’s field

observation in May, 1951 and his study of the herd book

at that time, he concluded that an adequate production

level would be 365 B.F. on the average (“approximately

a pound of butterfat per day” (VIII-1958) ). When Dr.

Garlick saw the herd book, the herd had just completed

the year 5/1/50 - 4/30/51 and was doing 307 (p. 48).

Sterility accounted for its failure to do 365, according

to Dr. Garlick. He didn’t know the reason for the ste-

rility (VIII-1921).

The diagnosis of Sterility begs the question, we think.

Among other difficulties reported by the farmers to Dr.

70

Keller when he first got to the Camas-Washougal area

in 1945 were disturbed heat (oestrum) cycles in the

cows (III-245-6). On cross-examination of Dr. Garlick

the following occurred:

“Q. Dr. Garlick, are you familiar with this Bulle-

tin 123, Research Bulletin 123, October 1934, Agri-

cultural Experiment Station of the University of

Wisconsin, ‘Chronic Toxicosis in Dairy Cows Due

to the Ingestion of Fluorine’ by Paul H. Phillips,

E. B. Hart and G. Bohstedt?

A. I am.

Q. Would you agree or disagree with this state-

ment under the summary and conclusions on page

28, conclusion three:

‘Fluorine in the ration of dairy cows does not

cause a functional failure of the reproductive

processes, but it does delay oestrum follow-

ing parturition and lowers the birth rate of

newborn calves. The nutritional state of the

animals suffering from chronic fluorosis is

thought to be responsible for these results.’

Do you agree?

A. I agree that Dr. Phillips is recording his ob-

servation. However, I have not observed it in my

observations and the other workers who have ob-

served it in regions of the aluminum plants have

not observed the condition.” (VIII-1959-60)

While Dr. Garlick does not agree with the above

quotation from Dr. Phillips, and Dr. Phillips himself

has now considerably limited it, Dr. Garlick is still con-

fronted with other Whiteaker D.H.1.A. results. Since there

is a variation of 303 to 373.9 in the Whiteaker annual

results and since Dr. Garlick thought 365 would be nor-

mal, it is evident, if the 365 is correct, that sterility has

not always been a problem. If the herd had a sterility

problem at 307 average production in May 1951, why

71

was it at 303 in May 1953? Was there still a sterility

problem? And if there was, why is it that the herd went

up from 307 to 335 in the year after Dr. Garlick looked

at the herd book? When Dr. Garlick saw the herd in

December, 1952, the herd book, which he did not then

look at (VIII-1976), showed 335 as of 4/30/52. At that

stage Dr. Garlick, had he looked at the book, might

have thought he had been right about sterility in 1951

since the herd production was up 10% and since there

had been a considerable infusion of new blood in the

herd begining October 1951. How would he feel about

this though, in view of the fact that the herd again

plunged to 303 in the year ending 4/30/53? If Dr. Gar-

lick had really been trying to diagnose the herd, would

he not have informed himself a little better? Had he

done so, we think he would have discovered that the

only real variable in the Whiteaker situation (pp. 50-51)

was the amount of fluorides consumed by the herd.

It will also be recalled that Dr. Garlick did not see

the Arvidson herds after the summer of 1951 nor the

Whiteaker herds after December 1952. No fluorine

changes take place in the teeth after the bud stage (when

the tooth can’t be seen), Dr. Garlick informed the Court

(VITI-1948). Dr. Garlick did not say how long the bud

Stage was, but Dr. Phelps said it was six months (VIII-

1947). Even after the tooth emerges from the gum, Dr.

Garlick can’t tell about exposure to fluorine till the cuti-

cle wears off (VII-1861). Dr. Garlick’s knowledge of

fluorosis in Arvidson, when he testified, therefore, was

not more up to date than three years earlier. Since he

saw the Whiteaker herds only in December 1952, he

72

could have seen nothing on the teeth with respect to

Reynolds’ 80% increase in fluoride discharge which took

place in August 1952.

On cross-examination Dr. Phelps made it very clear

that when he was talking about “fluorosis” he was de-

scribing the point where there is “systemic damage” to

the annimal (IX-2325). On direct, he had said that cows

could have mottled teeth without fluorosis. On cross he

went on to say that until the ‘‘systemic”’ stage was reach-

ed, there was no loss in milk production (IX-2347). Dr.

Phelps had found no “‘systemic’’ damage on such visits

as he made for this litigation. Nor had he when testify-

ing on at least two, and possibly three, previous occa-

sions (IX-2361-3). However, when participating in set-

tling claims for Reynolds, Dr. Phelps’ attitude was some-

what different. He admitted on cross-examination that

when he made a report for Reynolds in connection with

the Whiteaker release, the animals had not been sys-

temically injured (IX-2336). In connection with the

Rawnsley release, five cows were systemically injured

(I1X-2341). Others had mottled teeth and were not sys-

temically injured (IX-2343). No animals were systemi-

cally injured when Goldsmith’s claim was settled (IX-

2346). Dr. Phelps finally admitted that in coanection

with these releases he had determined the difference be-

tween normal and salvage values in all cases where there

was any mottling (IX-2343) for the reason that we

(meaning Reynolds and himself (IX-2344) ) “. . . were

probably going overboard a little bit...” (IX-2343).

Dr. Phelps does not go overboard in litigation.

on mer ta on =

73

Dr. Chapman changed his opinion somewhat too. At

the trial he made it clear that when he was talking

about “fluorosis” he meant damage (VIII-2115). He

said on cross-examination that the first symptom of

fluorosis was mottling of the teeth (VIII-2123). In con-

nection with that statement, there was read to Dr. Chap-

man a part of an article he wrote when he was employed

by Oregon State College to make a fluorosis survey. The

extract and the surrounding colloquy was:

“Q. What do you consider the first symptoms of

fluorosis in dairy cattle?

A. I think the first thing I notice will be mot-

tling of the teeth.

Q. Would you agree with this statement [from

the Chapman article]:

‘Symptoms develop slowly and are most no-

ticeable in lactating cows. Early symtoms

are decreased food consumption, decreased

lactation, intermittent diarrhea and general

loss of condition and appetite. As the diet

progresses there may be changes in bones

and teeth.’

Would you agree with that?

A. No.

Q. Would you agree with this statement: -

A. I got my sequence mixed up.

“Young animals make a poor growth and oft-

€n appearing to be suffering—’

THE COURT: Excuse me, just a minute. What

did you say there?

THE WITNESS: The sequence.

THE COURT: Oh, the sequence of the symp-

toms?

THE WITNESS: Of the symptoms.

THE COURT: I see.

Q. (Continuing) You changed your mind as to

that?

A. That is right.” (VITI-2123-24; emphasis sup-

plied.)

—_ oi est: 7 RAW Se ROIS ERCP Ly PPA CY NERS bon NOMEN SA Ot) mE

74

Later, on recross-examination, Dr. Chapman made

it pretty clear that his sequence was right when he wrote

the article. He said:

“Q. Any little thing upsets their milk production,

don’t it?

A. Yes, practically anything that would upset it,

upset her normal eating or even disturbance, just

examining the cattle will upset the milk production

slightly.

Q. Sure, depending on the degree? On the other

hand, if some farmer called you some night and

tells you he has got a sick cow, it is quite the com-

mon practice among veterinarians to ask, ‘Well,

how much is she off on her milk production?’

A. One of the first things you ask.

Q. One of the first things you ask?

A. That is right.

Q. And if she isn’t off on her production very’

much you don’t consider it too terribly serious?

A. I will think she will wait until morning, and

if they don’t get any, I say, ‘Well, it is too late to

autopsy.’ (Laughter)

Q. It doesn’t take very much to ues her off

milk production, does it?

A. Well, it doesn’t take any marked change to

alter the milk production of a cow.” (VIII-2134-35;

emphasis supplied.)

We noted above (p. 66) that the defense at the trial

was an incomplete experimental-seldom seen cattle de-

fense. We also pointed out that respondent’s veterinari-

ans, who saw the cattle but little, were basing their con-

clusions that the cattle couldn’t have been injured on

the incomplete experiments of Drs. Phillips and Schmidt

who never saw the cattle. While petitioners produced

some experts also, the trial was no mere battle of ex-

perts. Supporting petitioners’ experts were the personal

75

day by day observations of petitioners themselves whose

testimony showed a remarkable consistency as to the

type of injuries suffered by their cattle (pp. 42-47) and

the physical facts including the documentary evidence

(pp. 50-51) showing that there really was a milk loss.

The defense was completely an expert defense. In

32 C.J.S., Evidence at p. 393, § 569, appears this state-

ment: “. . . cotirts of the highest eminence

feel that experts are frequently rather the hired advo-

cates of the parties than men of science placing their

special experience at the service of the cause of justice

... A recent opinion of the Oregon Supreme Court is

to the same effect. In Oxley v. Linnton Plywood Ass'n,

205 Ore. 78 at p. 103, the Court observed: “. . . The

cruiser testifies as an expert witness, and his testimony,

like that of all expert witnesses, is viewed with some sus-

aa

CONCLUSION

_ For the foregoing reasons it is respectfully submitted

that this Petition for a Writ of Certiorari should be

granted.

DONALD A. SCHAFER,

JAMES P. CRONAN, JR.,

803 Public Service Building,

Portland 4, Oregon,

PAUL M. REEDER,

Commercial Building,

Hillsboro, Oregon,

Counsel for Petitioners.

November 9, 1956.

— NA RI DFAT OA AR MORIN VARI RED. TED SDN ARE hr MEER TR: SMB AEE I

f

RTC ROR TATE EET OTE OOO St Uren Re, cee ota

77

APPENDIX A

Part I

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

WASHINGTON

SOUTHERN DIVISION

ALBERT A. ARVIDSON, et al, )

Plaintiffs )

v. . )

)

REYNOLDS METALS COMPANY,) Civil No. 1,415

a corporation, )

Defendant )

DECISION

W. J. WHITEAKER, et al, )

Plaintiffs ) Civil No. 1,653

Vv. )

)

REYNOLDS METALS COMPANY,)

a corporation, )

Defendant )

Plaintiffs in the Arvidson case operate fourteen farms

in Clark County, Washington. Their complaint filed in

December, 1950 seeks damages and injunctive - relief

against defendant because of alleged damage to lands

and cattle claimed to have been caused by fluorides dis-

charged from defendant's aluminum plant at Troutdale,

Oregon. The Whiteaker complaint was filed in Novem-

ber, 1952 by plaintiffs operating four farms in Cowlitz

County, Washington seeking the same relief under similar

~ he SPST PU ages

78

allegations relating to the operation of defendant’s alu-

minum plant at Longview, Washington. The cases con-

solidated for trial involve generally identical questions of

law and fact. Seventyfive witnesses testified and 342 ex-

hibits were admitted in evidence. The court visited every

farm involved, saw many of the cattle and inspected both

aluminum plants with particular attention to their fume

control systems. Prior to the trial, on motion and after

full hearing, the applicable statute of limitations was

determined by the court. Extensive briefs on the liability

issues, together with a transcript of 2,500 pages, were

submitted. Following the argument on liability the court

indicated orally and at some length its then view of the

controlling facts, reserving final decision on all points for

written opinion.

A detailed analysis of the evidence would greatly

lengthen this opinion and would not serve any useful

purpose. The evidence was closely followed as it was

presented, copious notes taken and at the conclusion

of the evidence the court made a memorandum sum-

marizing its impression of each witness and the weight

and value to be given to his testimony. The facts as now

found are based on extended study and consideration of

the entire record, which will be summarized largely in

general terms.

The Troutdale plant was constructed for the United

States in 1941-1942 by Aluminum Company of America

and operated by that company from May, 1942 to Sep-

tember, 1945 when operations were shut down. Defend-

ant commenced operation of the plant under a lease in

_—_ EILEEN RO CEMRNTRN PARI TEN TORII ALP PS MERITS. ARRAS

79

September, 1946 and with various short interruptions has

continued the operation ever since. The plant was pur-

chased from the government and deeded to defendant in

June, 1950. The Longview plant was constructed by de-

fendant and commenced operation in 1941. With various

shutdowns defendant has operated the plant to the pres-

ent time. In both plants aluminum is produced by pro-

cesses which unavoidably cause gases, fumes and air-

borne particulates to be formed, some part of which are

discharged into the atmosphere from the plant stacks.

The effluence contains fluorides in some form and

amount which eventually may be deposited on lands

within a radius of ten miles or more of the plant, but

the course, quantity and distribution thereof cannot be

directly observed or known. Fluorides of some of the

types escaping from the plants, if ingested in excessive

quantities, are capable of causing damage to cattle.

Prior to defendant’s first operation of the Troutdale

plant in 1946 substantial improvements in the fume

control system were installed at an expense of nearly

$300,000. At the same plant defendant, at a cost of over

two million dollars, completed installation in November,

1950 of an elaborate fume control system said to be as

advanced and efficient as presently exists in the alumi-

num industry. From time to time various improvements

in the fume control system at the Longview plant have

been installed, the latest in 1949. Whether the measures

taken by defendant to minimize the escape of fluorides

from its plants are the maximum possible consistent

with practical operating requirements is yet to be deter-

mined, but apparently American industry has not yet

80

developed anything better. The record shows that the

United States has a very important interest in the con-

tinued operation of these plants for their large scale

production of aluminum essential to national defense.

Because thereof the government has contractual obliga-

tions to defendant concerning claims of the character

presented in these cases and for reacquisition of the

Troutdale plant in the event operation thereof be en-

joined. The conclusions reached by the court as to the

facts and law controlling of these particular cases make

it unnecessary to decide defendant’s contention that be-

cause of the commitments referred to the United States

is a necessary party in the Arvidson case, but the cir-

cumstances just stated indicate the lawful and import-

ant character of defendant’s operations. For the same

reason, consideration of defendant’s contentions as to

the effect of the releases executed by plaintiffs is not

required.

In a number of cases previously heard in this and

other courts in this area awards for fluorine damage re-

sulting from operation of the Troutdale and Longview

plants have been allowed, but every such case involved

periods when little, if any, fume control measures were

taken and before the installation of the later of the fume

control improvements referred to.

Plaintiffs’ farms are located at various distances up

to seven miles from defendant’s plants. During various

periods up to several years prior to the filing of the

complaints plaintiffs grazed dairy and beef cattle on

their farms. Most of the cattle claimed to have been

ee PEI SOREN RT DE NEL, PEER a og eT ECR

_

damaged were on the farms the whole of a two-year

period prior to commencement of the actions.

81

Plaintiffs had the burden of establishing by a pre-

ponderance of the evidence that the market value of

their farms was depreciated and/or that the physical

condition and milk producing capacity of their cattle

were damaged by fluorides emanating from defendant’s

plants. Extensive evidence was introduced for such pur-

pose. Defendant’s evidence, equally extensive, was to

the effect that no depreciation in market value of plain-

tiffs’ farms had occurred and that the maximum possible

ingestion of fluorine by plaintiffs’ cattle, whether attri-

butable to defendant's plants or otherwise, was well

within the amount cattle can take without damage either

as to physical condition or milk producing: capacity.

Plaintiffs’ veterinarians testified that plaintiffs’ cattle

had and were suffering from various conditions ascribed

to fluorine; and dairy records purporting to show a loss

in milk production were presented. Veterinarians en-

gaged by defendant flatly denied that the physical de-

fects in plaintiffs’ cattle were due to fluorine and

ascribed them, as well as any apparent decline in milk

production, to poor husbandry and other causes and

conditions unrelated to fluorine.

The expert testimony, in some instances given by

scientists of national eminence, was in sharp conflict.

Plaintiffs’ experts testified that damage to plaintiffs’ cat-

tle could and did follow from ingestion of fluorine in

the quantities shown by forage sampling in the area of

plaintiffs’ farms. Defendant’s experts unequivocally and

without reservation testified to the contrary.

ae Ree Se RO?

82

All of the plaintiffs testified to personal observations

of physical ailments and milk production performance of

their cattle. Plaintiffs may have been sincere in believing

that all of the ills of their cattle and all of the unsatis-

factory conditions in their dairy operations were due to

fluorine damage; however, rarely did a plaintiff volun-

tarily or readily acknowledge any cattle ailment, damage

or unsatisfactory condition as being due to any other

cause, no matter how apparent it might be. On the

whole, the court was not favorably impressed with the

personal testimony of plaintiffs. Almost every plaintiff

on cross examination was badly discredited in various

respects but primarily by (a) testimony at the trial di-

rectly contrary to testimony given by pretrial deposi-

tion; (b) reluctant admission of conditions and causes

unrelated to fluorine accounting in many instances for

the damage or condition complained of; (c) admission

of substantial increases in income from dairy products

during the years complained of as contrasted to earlier

periods when fluoride effluence was as much or greater;

and (d) the testimony of some plaintiffs in the Arvidson

case that no injurious effects or damage were observed

from 1942 to 1945 during the period Alcoa was operating

the Troutdale plant without the fume control improve-

ments installed by defendant when fluoride effluence

must have been very much greater than during the per-

iod complained of. It would appear from the testimony

last referred to that the cattle injury and loss of milk

production complained of were either not due in any

material degree to fluorine or were the result of an ac-

cumulation of fluorine deposits in forage over a period

83

including several years prior to the limitation period. In

this connection it should be noted that the experts pro-

duced by plaintiffs testified that fluorine deposits on for-

age dissipate rapidly and do not accumulate over any

great length of time, particularly in areas subject to

frequently rainfall.

Each of the veterinarians examined all of the dairy

cattle in plaintiffs’ herds and cattle urine was tested for

fluorine by defendant’s veterinarians at various intervals

during the period in question. Plaintiffs’ veterinarians

found a variety of physical conditions in the cattle which

they considered evidence of fluorine ingestion and dam-

age resulting therefrom. Defendant’s veterinarians ac-

counted for many of the ailments and defects referred

to by ascribing them to other causes and categorically

were of the opinion that none of the plaintiffs’ cattle had

suffered injury or damage in any respect by reason of

fluorine ingestion, testifying that the urine analysis sup-

ported such opinion. The court was favorably impressed

with the ability, integrity and thoroughness of defend-

ant’s veterinarians and, to say the least, is of the opinion

that there is no preponderance in favor of plaintiffs in

the evidence of the veterinarians.

Another phase of the evidence was concerned with

studies of the quantity, character and distribution of

fluoride effluence from defendant’s plants. Plaintiffs’

evidence indicated a greater quantity and wider distri-

bution of effluence than the evidence offered by defend-

ant; however, the range of difference between the esti-

mates does not appear to be particularly significant in

84

view of the low quantity at maximum of escaping fluo-

rides distributed over a large area. This is indicated by

the testimony of plaintiffs’ witness, Dr. Cadwell, who

testified that at the rate of fluoride escape estimated by

plaintiffs’ witness, Dr. Schulein, about 1% pound per

acre per year would be deposited at two miles from a

plant; 2/10ths to 3/10ths of a pound per acre per year

at four miles from a plant; and 1/10th of a pound per

acre per year at eight miles from a plant. Dr. Cadwell

testified that a half pound of particulates would be about

the size of his fist in volume.

A very extensive program for sampling forage and

testing it for fluorine content has been conducted over a

period of years in a wide area surrounding defendant’s

plants. The work has been done by state and college

scientists aided and assisted by defendant and others.

The results of this work are shown in the agreed facts

stated in the pretrial orders and in the evidence. There

is little, if any, dispute as to the samples taken and their

fluorine content as shown by laboratory measurement,

but the interpretation of the data is in conflict. The con-

flict largely hinges on what part of -the fluorine found in

the samples is to be considered within the limit naturally

and normally found in vegetation and what part is to be

charged to deposits presumably emanating from defend-

ant’s plants, as to which a great many variable factors,

some involving scientific questions not yet fully settled,

must be considered. A fair inference from a full con-

sideration of the evidence on this phase of the case is

that some part of the fluorine found in the forage at

points within the vicinity of plaintiffs’ farms during the

85

period in question in these cases is attributable to fluo-

rides escaping from defendant's plants, but the amount

and character thereof is a matter of speculation and can-

not be determined with any degree of certainty. In all

probability some areas in the n€ar vicinity of the plants

receive deposits of particulates or solids in a minute and

powdery form so fine as not to be observable even by

scientific methods. There is no evidence in the record

indicating that direct observation of solid deposits have

been made on plaintiffs’ farms or at any other place as

| distant from the plants as the nearest of plaintiffs’

farms.

A further factor complicating the matter is the neces-

sity of using test data from samples gathered at more or

less infrequent intervals at scattered points and attempt-

ing to draw inferences from averages of such data as to

particular properties not precisely at a sampling station.

It is apparent from the data itself that rather wide varia-

tions occur geographically, climatically and by season.

When all of these matters are considered it can be seen

that any specific finding of fluorine content in forage on

the particular property of any plaintiff must very largely

if not wholly be a matter of speculation and conjecture.

The next branch of the evidence to be considered has

to do with the testimony given by the several scientists

on both sides of the case concerning the quantity of

fluorine necessary to produce toxic effects in cattle.

Much scientific research has been devoted to this sub-

ject and is continuing. Elaborate controlled experiments

have been conducted in this field over a period of years

SE RONEN A oY

86

but ultimate conclusions generally accepted by scien-

tists have not yet been reached. It may well be that in-

dividual peculiarities of cattle and the area in which they

are grazed will prevent any absolute scientific finding

which will be generally applicable as a measure of, or

even general guide to, the quantity of fluorine that will

physically injure cattle or lower their milk producing

capacity.

The court was much impressed with the ability, sci-

entific attitude and credibility of Dr. Paul H. Phillips,

Professor of Biochemistry at the University of Wiscon-

sin, and Dr. Harold J. Schmidt of Stanford University

Research Institute. Each is one of the very few top

authorities in his scientific field and both testified in a

frank and fair manner giving the impression of scientific

candor and objectivity. These men have given special

attention over a long period of time to the effects of

fluorine ingestion in cattle and have personally con-

ducted elaborate scientific experiments with extensive

herds devoted exclusively to such purpose. Both Dr.

Phillips and Dr. Schmidt testified without reservation

that cattle could and actually had ingested fluorine over

considerable periods in amounts far exceeding the maxi-

mum shown to have been available for ingestion by

plaintiffs’ animals without injurious effect either as to

physical condition or milk production capacity. Plain-

tiffs’ witness, Professor Cheldelin, testified that in his

opinion inorganic fluorine, such as found in the effluence

from defendant’s plants, after deposit on vegetation is

absorbed in the plant cells and therein converted to or-

ganic fluorine developing thereby much more highly

a

toxic powers; but he admitted that such theory has

never been demonstrated or proven by actual experi-

ment and, at the present Stage of science, is merely a

matter of theory not endorsed by scientists generally.

The court accepts the testimony of Dr. Phillips and Dr.

Schmidt at substantially full face value and in doing so

cannot but conclude that on the issues covered by their

testimony, plaintiffs have wholly failed to sustain the

burden of proof resting on them in these chses.

87

The final general issue of fact covered in the evi-

dence relates to plaintiffs’ claims of depreciation in the

fair market value of their real properties. Two realtors

testified for plaintiffs and two for defendant and again

the opinions expressed were in sharp conflict. Mr. Hol-

brook and Mr. Rodman made unusually careful and ex-

tensive studies of land sales in the vicinity of plaintiffs’

properties over a ten-year period and the extreme care

taken by them in examining the properties and consider-

ing every favorable and unfavorable element bearing on

the market value of the land was very impressive. In my

opinion the evidence overwhelmingly preponderates

against any finding that the real property of any plain-

tiff has been depreciated in market value in any amount

whatever during the period in question by reason of the

operation of defendant’s aluminum plants.

In the light of the conclusions thus summarized, as

well as from a consideration of many phases of the rec-

ord not particularly mentioned, I have reached the fol-

lowing basic conclusions on the factual issues of the

case: Plaintiffs have not sustained the burden of pro-

ae SSSA ae LALOR AT A RESIN

88

ducing a preponderance of credible evidence to establish

(a) fluorine content in the forage on their lands in

amounts above non toxic limits; (b) substantial fluorine

content in forage attributable to effluence from defend-

ant’s plants; or (c) that plaintiffs’ lands or cattle sus-

tained fluorine damage in particulars and amounts that

can be determined with reasonable or any certainty.

Under this view of the evidence, the basic question

of law presented is as to the legal basis of the rights of

action on which plaintiffs seek relief in these actions. In

the complaints and pretrial orders plaintiffs grounded

the actions in trespass, as distinguished from trespass on

the case, and later asserted nuisance as an alternative

basis of liability. An injunction restraining continued

operation of defendant’s plants and damage awards

were prayed for. Early in the proceedings the removal

of the actions to the Oregon District Court on the

ground of forum non conveniens was sought by defend-

ant. The matter was extensively briefed and argued be-

fore then District Judge James Alger Fee sitting in this

court by assignment. In an opinion reported at 107 Fed.

Sup. 51, Judge Fee, on the allegations of the complaints

and upon the oral statements of plaintiffs’ counsel dur-

ing the hearing on the motion for removal, for the lim-

ited purposes of that motion accepted plaintiffs’ conten-

tion that the actions sounded in trespass. Removal was

denied for several reasons but principally because under

Oregon Supreme Court decisions that court has held it-

self without jurisdiction to deal with actions for trespass

on lands outside of Oregon. There is no indication in

Judge Fee’s opinion or elsewhere in the record that con-

a

sideration was giyen to the Washington law as to

whether actions of the nature of the present cases sound

in trespass rather than trespass on the case. Washington

law was neither directly nor indirectly considered, stated

or applied in the removal decision. The parties agree

that under Erie R. Co. vy. Tompkins, 305 U.S. 673, on

substantive issues the cases must be decided according to

Washington law.

89

By appropriate motion prior to settlement of the pre-

trial orders, the applicable period of limitation of action

under Washington law was presented, argued at length

and determined by informal memorandum decision. The

Washington statute RCW 4.16.080 provides a three-year

limitation for:

“1. An action for waste or trespass upon real

property:

2. An action for taking, detaining or injuring

personal property, including action for the specific

recovery thereof, or for any other injury to the per-

son or rights of another not hereinafter enumer-

ated.”

RCW 4.16.130 provides a two-year limitation for actions

not otherwise covered in specific statutes of limitation.

The pertinent portions of this court’s memorandum de-

cision on limitation are: “When RCW 4.16.080 (Rem.

159) and RCW 4.16.130 (Rem. 165) are considered in

the light of the long settled and frequently applied in-

terpretation thereof by the Washington State Supreme

Court there is no room for doubt that neither subsection

(1) nor subsection (2) of RCW 4.16.080 (Rem. 159) is

applicable to the above cases. I am fully satisfied that

—_— an PAA es NAS EN, NR TS AE te Na

90

under the allegations in the pleadings of the above cases

the two-year limitation provided for under RCW 4.16.-

130 (Rem. 165) must be applied to the claims for dam-

ages both to real and personal property. This conclusion

seems inescapable under the following decisions con-

struing subdivision (1) of RCW 4.16.080 (Rem. 159):

Suter v. Wenatchee Water Power Co., 35 Wash.

1; 76 Pac. 298

Weller v. Snoqualmie Falls Lbr. Co., 155 Wash.

526; 285 Pac. 446

Riblet v. Spokane-Portland Cement Co., 41 Wn.

2d 249; 248 P.2d 380

and the following decisions construing subdivision (2):

Northern Grain & Warehouse Co. v. Holst, 95

Wash. 312; 163 Pac. 775

Clark Lloyd Lbr. Co. v. Puget Sound & Cascade

Ry. Co., 92 Wash. 601; 159 Pac. 774

Irwin v. J. K. Lumber Co., 119 Wash. 158; 205

Pac. 424

Constable v. John P. Duke, 144 Wash. 263; 257

Pac. 637

Noble v. Martin, 191 Wash. 39; 70 P.2d 1064

Luellen v. Aberdeen, 20 Wn. 2d 594; 148 P.2d

849.

The conclusion above stated was reached entirely with-

out regard to the fact that Judge Leavy held likewise in

Perrin v. Aluminum Company of America and Theyer

(W.D. Wash., S.D., 1950).”

The Perrin case, tried in this court, was concerned

with alleged fluorine damage to land and cattle in Ore-

gon due to plant operations in Washington. Judge Leavy

found and stated the Washington law of limitation as

indicated, which he held applicable as law of the forum.

91

Plaintiffs contend that under its circumstances the Per-

rin decision is not authoritative in the present cases

either on limitations or on substantive law as to the legal

basis of the actions. Determination of such contentions

is not necessary since the Washington law of trespass

and limitation stated herein is derived directly from the

decisions of the Washington Supreme Court.

Implicit in this court’s limitation decision was a de-

termination of the legal basis of the actions as being

trespass on the case under Washington law. Without

concern whether such decision became law of the case,

the subject has again been fully reviewed and recon-

sidered against the background of the evidence. A review

of the Washington cases cited in the limitations decision,

and in particular Suter v. Wenatchee Water Power Co.,

supra, leaves this court in no doubt but that the Wash-

ington Supreme Court regards claims of the nature of

those presented in these cases as being based on common

law trespass on the case as distinguished from trespass

quare clausum fregit. The Suter case has been cited and

quoted many times by the Washington Supreme Court

without a single instance of deviation from the language

ari* rationale of that case in so far as the elements dis-

tinguishing trespass from an action on the case are con-

cerned.

The Washington court holds that when the injury

complained of is the immediate and direct result of de-

fendant’s acts or omissions, the action is for trespass

whereas when the injury is consequential. the action is

on the case. In Suter v. Wenatchee Water Power Co.,

92

supra, the injury was held consequential and the action

on the case, even though flood waters, resulting in in-

stantaneous damage, suddenly were precipitated from

defendant’s canal onto plaintiffs’ farm lands. The negli-

gence causing the damage occurred prior to the flooding

in the construction and maintenance of the canal. The

distinction drawn by the Washington court betwee® im-

mediate and consequential injury is based on the char-

acter of the acts or omissions causing the injury and on

whether the injury results immediately upon the occur-

rence of the act or omission. In the present cases the

injury to plaintiffs, if any, was of a non-intentional

character occurring a considerable time following the

failure or inability of defendant to completely eliminate

the effluence of fluorides from its plants; accordingly,

the injury was consequential rather than immediate and

direct as those terms are interpreted by the Washington

court in the law of trespass.

In an action on the case, it is necessary for plaintiff

to allege and prove more than formal injury; but when

trespass be proven, liability is absolute and at least

nominal damage must be awarded. Even though it were

assumed that solids in the form of minute particulates

from defendant’s plants have been deposited on plain-

tiffs’ lands, the injury, if any, resulting therefrom was

consequential, the action is on the case, and awards of

nominal damages would not be justified by the facts or

required by the law.

As for plaintiffs’ alternative claim for relief grounded

in nuisance, the Washington Supreme Court in Riblet v.

93

Spokane-Portland Cement Co., supra, a case involving

dust discharged from a cement plant, said “t page 254:

“Our basic point of inquiry relates to the gen-

eral theory of the iaw of nuisance. This appears

primarily to be based upon generally accepted ideas

of right, equity, and justice. The thought is inherent

that not even a fee simple owner has a totality of

rights in and with respect to his real property. In

so far as the law of nuisance is concerned, rights as

to the usage of land are relative. The general legal

principle to be inferred from court action in nuis-

ance cases is that one landowner will not be per-

mitted to use his land so unreasonably as to inter-

fere unreasonably with another landowner’s use and

enjoyment of his land.

The crux of the matter appears to be reasonable-

ness. Admittedly, the term is a flexible one. It has

many shades and varieties of meaning. In a nuisance

case, the fundamental inquiry always appears to be

whether the use of certain land can be considered

as reasonable in relation to all the facts and sur-

rounding circumstances.”

It should be clear from the findings of fact and com-

ments thereon previously made herein that the view of

the evidence taken by the court does not warrant a find-

ing that the operation of defendant’s plants and result-

ing effluence therefrom constitutes an unreasonable in-

terference with plaintiffs’ use and enjoyment of their

lands. The court is fully satisfied that the utility of de-

fendant’s plant operations and their importance to the

economy and security of the nation far outweigh any

injury to plaintiffs shown by the evidence. Consequently,

neither a finding of nuisance nor granting of relief based

thereon is justified.

94

The closing or curtailing of the operation of either of

defendant’s plants by injunction clearly is not warranted

by the evidence under any theory.

Findings, conclusions and judgment in accordance

herewith may be presented.

Dated at Tacoma, Washington, this 19th day of Oc-

tober, 1954.

GEO. H. BOLDT

George H. Boldt

United States District Judge

Part Il

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT A. ARVIDSON, et al.,

Appellants, )

vs. )

)

REYNOLDS METALS COMPANY, a cor- )

corporation, Appellee. )

) Aug. 17, 1956

) No. 14,734

W. J. WHITEAKER, et al., )

Appellants, )

vs. )

)

REYNOLDS METALS COMPANY, a cor- )

corporation, Appellee. )

On appeals from the United States District Court for the

Western District of Washington, Southern Division.

Before: Bone and Orr, Circuit Judges

Murphy, District Judge P

— areata en eM ERT a

95

Per Curiam: The above cases coming on to be heard

upon the record, the briefs of the parties, and the argu-

ment of counsel in open court, and it appearing that the

findings of fact of the district court were not clearly

erroneous, and that the judgments are sustained by sub-

stantial evidence, and that the conclusions of law of the

district court were correctly drawn,

The judgment is affirmed, upon the opinion of the

district court in 125 F. Supp. 481 (W. D. Wash. 1954).

(Endorsed:) Per Curiam Opinion. Filed Aug. 17,

1956.

Paul P. O’Brien, Clerk.

Part Il

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DIVISION

OF WASHINGTON

SOUTHERN DIVISION

ALBERT A. ARVIDSON, CHERIE

ARVIDSON, ANDY BAKER, BER-

NICE IRENE BAKER, S BRANDT,

JOSEPHINE BRANDT, PETER DE-

POE, ELLEN DEPOE, W. H. FORD,

CLARA FORD, ADIN HESTER, ROSE Civil No.

HESTER, J. C. ISBISTER, MARY IS- 1415

BISTER, LEE M. MILLER, DELLA B.

MILLER, R. O. NORELIUS, IDA A.

NORELIUS, J. S. ROBSON, LILLIE ) OPINION

a a a

ROBSON, VERNON SEEKINS, HEL- )

EN SEEKINS, WILLIAM STAUF- )

FER, MINNIE STAUFFER, ) April 7, 1952

Plaintiffs, )

96

VS.

)

)

REYNOLDS METALS COMPANY, )

a corporation, )

)

Defendant.

JAMES ALGER FEE, District Judge:

Plaintiffs, in an action filed by them in The United

States District Court for the Western District of Wash-

ington, Southern Division, allege that parcels of real

property owned by them, respectively, situate in the

State of Washington, have been trespassed upon by the

defendant and seek damages because of injury thereto.

The trespass was alleged to have been committed by

means of gases, fumes, and particulate matter which

physically invaded said lands and caused injury. It is

alleged that the fumes, gases and particulate matter

were emitted by an aluminum plant owned and oper-

ated by defendant and located in the State of Oregon.

The defendant has moved to transfer the cause to

the District of Oregon on the ground of convenience of

witnesses and parties under the terms of 28 U.S.C.A. §

1404(a).

Notwithstanding the broad terms of the statute, the

transfer cannot be made for jurisdictional reasons:' first,

the courts of the State of Oregon have no power to en-

tertain or adjudicate trespasses upon real property situ-

_ate in the State ‘of Washington; second, no one of plain-

‘Inherent in the mandate of § 1404(a), that the transferee forum

be one where the action “might have been brought,” are the require-

ments of jurisdiction of the subject matter and jurisdiction over the

parties. Foster-Milburn Co. vs. Knight, 2 Cir., 181 F.2d 949.

97

tiffs has submitted himself to the jurisdiction of the

courts of the State of Oregon or to the federal court

there. Both of these propositions are fundamental, and

either is fatal to the attempt of defendant to transfer

the action.

It may well be that the i: w of some states, and per-

haps of the majority, is that an interstate trespass can

be prosecuted either in the state of origin or in the state

of injury. But the courts of the State of Oregon hold

that no jurisdiction in them subsists over a trespass

upon land in another jurisdiction. This doctrine is then

binding upon the federal courts sitting in Oregon be-

cause of (1) the inherent character of the rule as purely

local substantive law, (2) the holding that federal courts

apply loca! substantive law,? and (3) because plaintiffs

have chosen the forum where the land is situate. Hence,

the United States District Court for the District of Ore-

gon has no jurisdiction of the subject matter of the ac-

tion.

Not only have plaintiffs ch

This text is long and has been trimmed here. Open the source document for the complete record.