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United Verde Copper Company v. Kovacovich

Supreme Court of Arizona

June 20, 1933

UNITED VERDE COPPER COMPANY, a Corporation, Appellant,
v.
NICK KOVACOVICH and MONDELINO KOVACOVICH, His Wife, Appellees. UNITED VERDE EXTENSION MINING COMPANY, a Corporation, Appellant,
v.
NICK KOVACOVICH and MONDELINO KOVACOVICH, His Wife, Appellees

APPEAL from judgments of the Superior Court of the County of Yavapai. P. A. Sawyer, Judge. Judgments affirmed.

Messrs. Chalmers, Fennemore & Nairn and Mr. Leo T. Stack, for Appellant United Verde Copper Company.

Messrs. Cornick & Crable, for Appellant United Verde Extension Mining Company.

Messrs. O'Sullivan & Morgan and Mr. Louis H. Bunte, for Appellees.

OPINION

[42 Ariz. 160] McALISTER, J.

Nick Kovacovich and Mondelino Kovacovich, his wife, instituted an action against the United Verde Copper Company in which they sought to recover damages for injuries to crops alleged to have been caused by poisonous gas and smoke discharged by the smelter of the defendant, and from a judgment in their favor the latter has appealed.

The plaintiffs are the owners of sixty acres of land situated on the Verde River about ten miles southeast of the defendant's smelter

Page 1086

and during 1928 and 1929 and for many years prior thereto had grown thereon various crops. They allege that in 1928, at the proper time, they planted on this land the following [42 Ariz. 161] crops: wheat, 15 acres; pole beans, 6 rows of 50 plants each; tomatoes, 5 rows of 75 plants each; sweet potatoes, 145 rows of 96 plants each; corn, 450 rows averaging 137 stalks each; and alfalfa, 13 acres, and that these various crops were properly cultivated and would have matured and produced normal yields had they not been injured as hereinafter mentioned.

The complaint avers that during the year 1928, particularly the growing season thereof, the defendant in the operation of its smelter at Clarkdale, Yavapai county, Arizona, discharged daily into the air immense quantities of obnoxious, foul and poisonous gas, smoke and fumes containing great quantities of sulphur and other poisonous ingredients and that these were carried by the wind currents over and upon the above-described premises of plaintiffs and there damaged and destroyed the stalks, stems, leaves and foliage of the plants growing thereon and had the effect of stopping their growth and rendering them unproductive. It is alleged that the damage to the crops on account of these injuries was as follows: wheat $675.75, beans $318.75, tomatoes $239.07, potatoes $1,917.91, alfalfa $553.77, and corn $611.26, a total of $4,316.51.

The same allegations appear relative to the crops planted on the same land in the year 1929, the only difference being the extent of the acreage and the damage resulting from the injuries. The crops alleged to have been planted that year were these: alfalfa 20 acres, corn 292 rows averaging 158 stalks each, tomatoes 500 plants, cabbage 3,060 plants, watermelons and cantaloupes 200 hills each, patch of garden, wheat 23 acres, sweet potatoes 25,950 plants, and the damage to each on account of the injuries produced by the gas and smoke was averred to be this: alfalfa $867, corn $507.37, tomatoes $301.75, cabbage $314.50, melons $255, patch of garden $63.75, wheat $586.50, potatoes $3,442.50, a total of $6,338.37.

[42 Ariz. 162] It is alleged further that in the year 1929, and for several years prior thereto, plaintiffs had an orchard on a portion of the above-described land consisting of 132 apple trees, 34 pear trees, 2 quince trees and 2 fig trees, and that these were properly cultivated, pruned and irrigated, but that during 1929, particularly the growing season thereof, the poisonous gas and smoke from defendant's smelter so injured the fruit growing thereon that plaintiffs were damaged as follows: apples $1,178.10, pears $231.20, quince $42.50, fig $17.00, a total of $1,468.80.

The prayer was that they have judgment for the aggregate sum of these damages, $12,123.68.

To this complaint the defendant interposed a general demurrer and a general denial. The demurrer was overruled and the case went to trial on ...


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