Citations
- 57 F.2d 801
Full opinion text
HALE, District Judge.
These cases, consolidated for appeal, come before this court on exception by the plaintiffs to the granting of a nonsuit by the United States District Court for the District of Maine. Each plaintiff, by its declaration, alleges that the defendant corporation, in the process of manufacturing, selling, and distributing illuminating gas at its plant on West Commercial street, Portland, Me., had large quantities of oils, gas waste, sludge, and other materials, liquids, and substances of a highly dangerous and inflammable nature. That on the sixteenth day of September, 1929, the plaintiffs were the owners of certain quantities of sulphur stored upon the Portland Terminal Company wharf No. 1, at Portland, near by the premises of the defendant, and that the sulphur was of great value; that on the sixteenth day of September, 1929, the defendant negligently and carelessly and in violation of a certain municipal ordinance of Portland,- passed on April 22, 1922, forbidding the deposit of oils, waste, or other inflammable and dangerous substances in the waters of Portland harbor, caused or permitted large quantities of oil, waste, gas, sludge, coal tar, and other materials, liquids, and substances of a highly inflammable and dangerous nature to float from the surface of its premises on West Commercial street, Portland, or through certain channels, drains, or sewers on its premises, upon and into the waters of Portland harbor, from whence it floated over and upon the surface of the waters of the harbor, and under the wharf No. 1 of the Portland Terminal Company upon which the plaintiffs’ sulphur was stored; and also around the pilings supporting .the wharf, and to accumulate under the wharf. That those oils, gas waste, sludge, coal tar, and other materials so discharged from the defendant’s plant and so accumulated under the Portland Torminal Company’s wharf No-. 1 became ignited on September 16, 1929, and a serious fire -arose therefrom, and that the plaintiffs’ sulphur, so stored on the Portland Terminal Company wharf No. 1, was burned and was then and there totally destroyed; and that the fire and the destruction of the sulphur by the fire was not caused by the negligence or fault of the plaintiffs, but was wholly due to the negligence, carelessness, and unlawful conduct of the defendant, its agents, and servants,'in causing or permitting its oils, gas waste, sludge, and other materials of a dangerous and inflammable character to be discharged from its premises into Portland harbor.
In the second count the plaintiffs allege that the allowing of the oil, sludge, and so forth to discharge and float into and upon the harbor constituted a public and private nuisance, Each plaintiff, then, bases its case upon the negligence, carelessness, and unlawful conduct of the defendant. .
The testimony and photographs before the court show the location of the wharves. Each plaintiff is lessee of the Portland Terminal Company wharf No. 1, and its sulphur sheds are located on it. In the leases from the Portland Terminal Company to the plaintiffs, the lessee “covenants and agrees to take upon itself all risk of loss by Are to the contents of said building and neither it nor any person claiming under it shall have or make any claim upon the lessor for any damage to said contents from Are caused by sparks or coals from any locomotives or otherwise.”
This wharf is located on the harbor side of the Portland bridge. To the west of it and above the bridge, towards Eore river, is the wharf No. 2, and to the west of that is the defendant’s property. Wharf No. 1, namely the Portland Terminal Company wharf, is about 1,100 feet long; the fire started very near the middle of this wharf. From the westerly comer of wharf No. 1 to the first sewer coming out of the defendant’s property is 680 feet; this makes the sewer approximately 1,200 feet from the midale of the wharf. There are three city sewers, one coming out under wharf No. 2, and one under wharf No. 1, and one coming out on the railroad property on the wharf adjoining to the east. These city sewers are the outlet for sewers covering a large area, covering surface grades, garages, jnd places where oil is used for heating, both domestic and commercial. To' the west of the defendant’s property, towards Fore river, are large storage tanks of petroleum products, belonging to the Standard Oil, Shell, Cities Service, Gulf, Mexican Petroleum, Rolling Mills, Ricker’s, International Paper Company, Texas Company, and part way across the harbor, almost opposite wharf No. 1, the storage tanks of the Cumberland County Power & Light Company, are situated. The testimony shows that gasoline and oils are unloaded from steamers into' these tanks. Deake’s wharf adjoins wharf No. 1 on the east; on this wharf is the Brawn sardine fa