APPEAL from the Circuit Court of Franklin County; the Hon.
CLARENCE E. PARTEE, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Franklin County in an action to recover damages for the tortious interference with the quiet use and enjoyment of land owned by the plaintiffs, Leon Wheat and Helen Wheat, resulting from the actions of the defendant, Freeman Coal Mining Corporation, in operating its coal mine. Defendant appeals from a judgment in the amount of $12,000 entered on a jury verdict for the plaintiffs.
Plaintiffs own and, during the period covered by this suit, lived on a 37 1/2-acre farm located approximately 2 1/2 miles east of Benton. Plaintiffs' home was described at trial as a small frame house with four rooms and an unfinished attic. There was no inside plumbing. Plaintiffs raised popcorn on the farm, had owned this tract since 1952, and lived on it up until 1966. This suit is concerned with damages incurred by plaintiffs between the years 1963 and 1966.
The defendant operated its Orient No. 5 mine on land west of plaintiffs' home. Operations at the mine began around 1962. Defendant has constructed a pond for use in the washing and separating of impurities from saleable coal. This pond is at the edge of defendant's land and, therefore, in close proximity to plaintiffs' land. Defendant constructed a wall surrounding this pond by piling refuse from its mining operations along the side of the pond.
Plaintiffs allege that the operations of defendant's mine caused large amounts of coal dust and smoke to come onto plaintiffs' property. Plaintiffs allege that this intrusion caused them extensive damage. They allege that the smoke and dust were constant, heavy and annoying, prohibiting them from doing their work at home or from opening their windows; that the dust interfered with their water supply and infested their food, clothing and furniture; and that the dust damaged the exterior of their house, causing it to blacken. Plaintiffs allege that damage was also caused them because water from defendant's pond backed upon their property. This water allegedly contained harmful chemicals and damaged their soil. Plaintiffs say that the retaining wall of defendant's pond contained combustible refuse and that this refuse burned and emitted noxious gases. This emission also damaged plaintiffs in the use of their home and is another element of their claim.
This case was tried before a jury and a verdict was rendered for plaintiffs. Defendant, at the close of the trial, moved for judgment on the evidence as a matter of law. It now appeals from the denial of this motion. Defendant contends that plaintiffs' complaint was insufficient in either the count alleging negligence or the count alleging nuisance. Defendant also objects to errors allegedly committed at the trial: (1) the trial court's ruling on certain evidence; (2) improper instructions to the jury; and (3) the trial court's allowing plaintiffs to amend their theory of damages at the close of their evidence.
• 1 Defendant contends that plaintiffs' complaint was insufficient to state a cause of action because it did not allege unreasonableness and intention, two elements essential to the maintenance of an action for nuisance. (Restatement of Torts § 822 (1939).) Defendant says that it was error on plaintiffs' part not to plead these elements. Plaintiffs' second amended complaint alleged that defendant operated a coal mine close to their home. It alleged that, in the operation of this coal mine, defendant erected a processing plant to prepare the coal for market. A large reservoir, part of this processing plant, contained contaminated water. Plaintiffs alleged that defendant "caused and allowed" such water to flow onto plaintiffs' land and that the flooding caused damage to them. Plaintiffs also alleged that great quantities of coal dust were emitted from the plant and carried by wind into plaintiffs' property "causing the exterior of the dwelling to become blackened and the paint to peel off, the interior, including the furniture, clothing and food, to become covered by coal dust, the water supply was rendered unfit for use, and the comfort and utility of the plaintiffs' home and the use of it by them has been seriously interfered with, making it difficult to live and enjoy the ordinary comforts of their premises as a dwelling." The second count substantially repeated allegations of damage, claiming that it was caused negligently. It would appear that plaintiffs, in their complaint, stated facts which, if true, would permit a jury to find that intentional and unreasonable damage was caused to plaintiffs by the operation of the coal mine. Defendant protests the sufficiency of the evidence on either count. Leaving that question for further consideration, it appears the plaintiffs have pleaded the elements of nuisance and negligence and, therefore, the pleading was sufficient. It is not necessary to include the words "unreasonable and intentional." In Feder v. Perry Coal Co., 279 Ill. App. 314 (1935), the court considered a complaint in a case involving facts similar to the present case. Holding that the complaint stated a cause of action, the court stated:
"The declaration alleged plaintiff's possession of his property, the uses he was making of it, the existence of defendant's slag pile, its ignition followed by burning and casting of fumes and gases upon plaintiff's property rendering his habitation uncomfortable, damaging his crops and livestock. By these allegations, plaintiff has alleged facts from which the law gives him certain rights, a transgression of those rights by the defendant and resulting damages. This is all the law requires in pleading." 279 Ill. App. at 318.
The defendant also contends that the trial court erred in striking its "Affirmative Defense #1." Defendant had alleged therein that plaintiffs, by moving into an area known to be rich in coal, and therefore likely to be the site of coal mining activity, had assumed the risk of any damage they might incur from such activities.
• 2 It appears from the record that defendant had ample opportunity to present evidence that its coal mine was located in a suitable area for coal mining. In an action for nuisance, suitability of the location for specific operation is a factor to be considered, along with other factors, in determining whether the invasion of plaintiffs' rights was unreasonable. (See Prosser, Law of Torts § 89, at 599-600 (4th ed. 1971).) But, plaintiffs' knowledge of the likely presence of the coal mine would not, of itself, bar recovery. In Menolascino v. Superior Felt and Bedding Co., 313 Ill. App. 557 (1942), the court held that contributory negligence of the plaintiff in living close to a mattress factory was not a proper issue in a nuisance case. (See also Johnston v. City of Galva, 316 Ill. 598 (1925).) Since defendant had opportunity to develop this factor at trial, it was not error to strike it as a special defense, where such knowledge would not necessarily bar plaintiffs' recovery, especially since the operation of the mine commenced after the plaintiffs purchased the property. Oehler v. Levy, 234 Ill. 595, 85 N.E. 271 (1908); Schatz v. Abbott Laboratories, Inc., 131 Ill. App.2d 1091, 269 N.E.2d 308 (1971), rev'd on other grounds, 51 Ill.2d 143, 281 N.E.2d 323 (1972).
Defendant contends that it is entitled to judgment notwithstanding the verdict, arguing that there was no evidence from which any trier of fact could have concluded that its activities in carrying out its business of coal mining were unreasonable.
• 3 The same standard should be applied when determining whether a verdict should be directed or a judgment non obstante veredicto entered. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967).) That standard permits the trial court to direct a verdict or enter a judgment non obstante veredicto "only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513 (1967).
At the outset, it should be emphasized that this was not a suit for an injunction restraining defendant's activities. In such cases, a stronger showing will be required of plaintiffs with regard to the unreasonableness of defendant's activities and the harm suffered by plaintiffs. (Restatement of Torts § 822 (1939).) Our courts have adopted the Restatement approach to the law of nuisance. Patterson v. Peabody Coal Co., 3 Ill. App.2d 311 (1954). See also Chicago North Shore Street Ry. Co. v. Payne, 192 Ill. 239, 61 N.E. 467 (1901).
Defendant contends that there was no evidence that indicated that its conduct was intentional and unreasonable under the test embraced in section 88 of the Restatement of Torts. "Intentional" for purposes of liability under section 822 is defined as including knowledge that the invasion of another's interest is resulting or substantially certain to result. There is support in the record that defendant would know that some dust and smoke would be carried over to neighboring lands. Defendant's witness, Harry Treadwell, testified that the defendant had been informed of the damage being done to plaintiffs by the operations of the mine.
The determination of whether defendant's conduct has been unreasonable is a question particularly suited for a jury, especially where there is evidence that damage has occurred. Plaintiffs' witnesses testified that some smoke and coal dust were constantly emitted from the mine and entered into plaintiffs' house. Anna Butler, a witness for plaintiffs, testified "The smoke, the dirt, the dust, the stink * * * was worse than rotten eggs. * * * You come up that highway, comin' ...