January 06, 2017

Old Cases – Old Friends

Posted on January 6, 2017 by John A. McKinney Jr

I was an Adjunct Professor on the Seton Hall School of Law faculty teaching New Jersey Environmental Law.  Although I retired from that position after 18 years, I still anticipate the upcoming Spring Semester.  At this time of year, I would have completed my syllabus and would be preparing for my classes, one of which would include a discussion of P. Ballantine & Sons v.  Public Service Corp. of New Jersey, 70 A. 167 (N.J. Sup. Ct. 1908) (“Ballantine”).  This case is both an old friend and a decision reaching the right environmental law result long before there was something called environmental law.

The plaintiff was a major brewery in Newark.  The defendant was a large corporation that owned a neighboring illuminating gas manufacturing plant.  Both parties retained well-known lawyers whose names are, even today, in the names of two law firms active in New Jersey.  From a legal viewpoint, Ballantine was a battle between two titans of industry using top counsel. 

The holding in the case is simple.  “If a landowner accumulates contaminating matter upon his land, and negligently permits it to percolate through the soil and pollute a neighbor’s well, he is liable for the injury.”  In a jury trial below, the brewer prevailed and was awarded $20,725 in compensatory damages (over $5.5 million in today’s dollars).  The facts were not so simple and the gas company appealed, primarily on the basis that the verdict was against the clear weight of the evidence.

In the case below, the brewery proved it drew about 7,800 gallons of water a day from two wells on its property to make its beer and porter.  The water purity and temperature had been perfect until late 1902 or early 1903 when “it had given off a perceptible gaseous odor which, however, did not affect its usefulness for plaintiff’s purposes.”  Although that may say something about the taste of beer in the early 20th century, by July of 1903, there was a “sudden appearance” in the water of gas tar, a by-product of illuminating gas manufacture, making the wells useless for making beer and porter.  The brewer procured another supply of water and sought its procurement costs.  The gas plant contended there was conflicting evidence as to the source of the pollution.

Here is where Ballantine is “modern.”  The case became a battle of the experts as to material identification and fate and transport issues.  There was testimony a predecessor owner of the gas plant dumped coal gas tar in the river and that it “was drawn or flowed there between the strata of rock which dip from the river towards the wells.”  In an early anticipation of Daubert, the Supreme Court panel said this was “all theory, and seems to be inconsistent with what we understand the proof shows to have been the fact that the tar in plaintiff’s wells was oil gas tar.”

The record showed oil gas tar was stored in tanks and moved through pipes in “the possession and under the control of the defendant and within its peculiar knowledge.”  The court found that, in these circumstances, negligence could be inferred and the costs were not excessive.  The appeal was “discharged, with costs.”

I will miss teaching from this little gem.  As we discussed it in class, I projected a slide show for the students showing a latter Ballantine Brewery, its delivery trucks and other Ballantine memorabilia.  We got into the history of the two parties after the case as well as their impacts on the City of Newark and the state.  We talked about New Jersey law and its early rejection of Res Ipsa Loquitor.  I told them one of the Justices on the Ballantine panel went on to preside over New Jersey’s most famous trial, the Bruno Hauptmann/Lindberg baby kidnapping case.  Ballantine elicited from me and from my law students all the things that made teaching fun.  I will miss my old friend. 

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