Plaintiff, Associated Metals and Minerals Corp., a New York corporation (hereafter called New York), in an original complaint filed in this court sought as a primary matter of relief a restraint against certain operations of Dixon Chemical & Research, Inc. (hereafter called Dixon). This pleading disclosed the alleged damage of large quantities of New York's steel due to the continuous contact of said steel with deposited particles of sulphur. It was further alleged the said particles of sulphur came from a sulphur pile maintained and controlled by Dixon located on its leased premises which were adjacent to premises on which New York maintained large quantities of steel. A preliminary restraint was allowed and pending the restraint hearing Dixon discontinued the aforesaid operations, and the aforementioned issue accordingly became moot, unless reoccurring.
Under an additional cause New York sought a money judgment grounded on negligence and nuisance for damages resulting from corrosion by reason of the wrongful deposit of sulphur by Dixon upon its aforesaid property.
Thereafter, the litigation involved profuse proceedings which included the filing of a supplemental complaint by New York, which was later abandoned, and by Dixon for an order to transfer the issue of damages to the Law Division for a jury trial, or as an alternative if jurisdiction was continued in the Chancery Division that a trial by jury be granted. Included, also, were contested proceedings of Dixon
to add a cause of action against Associated Metals and Minerals Corp., a New Jersey corporation (hereafter called New Jersey), an affiliate of New York, New Jersey being duly assigned certain leases entered into by New York and the Port of New York Authority. All supplemental proceedings were denied as appears from the opinion of Judge Kolovsky, reported in 52 N.J. Super. 143 (Ch. Div. 1958), and his order of December 2, 1958, and also from the orders of this court entered by virtue of letter opinions dated November 5, 1959, January 5, 1960 and February 24, 1960, filed herein.
In addition, Dixon filed a third-party complaint against Glens Falls Insurance Company, a New York corporation (called Glens Falls hereafter), under a certain manufacturers' and contractors' liability policy alleged to afford coverage for damages recoverable by New York against Dixon as caused by the aforesaid operations with respect to storage and maintenance of the sulphur.
Thereupon, the related issues were joined and the matters were pretried with the allowance of further discovery. As appears in the pretrial order the action of Dixon against Glens Falls was severed with direction that it be prosecuted after the close of proofs in the action by New York against Dixon. Such was the course followed and the separate trials by the court without a jury were fully heard, which consumed approximately six weeks. A mammoth record of documentary proof and extensive testimony by several witnesses was produced. All issues were orally argued and briefs were filed.
In order to comprehend the extensiveness of the litigated issues, a detailed resume is necessary.
About February 1956 a location within the area of Port Newark, Essex County, New Jersey, was leased from the Port of New York Authority by New York (subsequently assigned to New Jersey) for the purpose of making the leased premises available for the operations of New York, as a location for storage of structural steel amounting to
several million pounds, being "I" beams, "H" beams, channels and angles, which New York had purchased from various foreign markets for delivery there via ships which were to be wharved at Port Newark. Initial delivery of the steel commenced prior to September 1956, the bulk of which was received in July 1956. Subsequent deliveries and storage of the steel followed until a final date in April 1957. To meet the expected deliveries of steel under contract, three parcels of land were leased which comprise the full area of the aforesaid storage operations. The first parcel was acquired about February 1956, the second about October 1956, and the third about November 1956; the said parcels made up a contiguous rectangular area.
In the interest and purpose of storing sulphur Dixon leased a parcel of land situated likewise in the Port Newark area, from the Port of New York Authority, which storage was commenced subsequent to the initial date of delivery and storage of the heretofore mentioned steel. With significance it is noticed that the location leased by Dixon was contiguous to the first parcel leased by New York (subsequently assigned to New Jersey). Further, the sulphur was delivered to wharves by boat and transported by truck to the leased premises of Dixon where it was mounded by the utilization of bulldozers in a manner described in the record. It is also noticed that Dixon discontinued delivery of sulphur to its leased location about September 20, 1956. However, the sulphur in a reduced quantity remained at the stated location for about a year before complete removal.
The gravamen of the cause of damages has relation to the failure of Dixon to reasonably maintain and control the assumed storage of the sulphur product in such a manner that sulphur would not unreasonably interfere with the use and enjoyment of the adjacent leased premises of New York, that is to say, sulphur would not create a nuisance.
Dixon denies all liability by reason of an utter lack of negligence on its part, or, if any existed, urges the absence of any showing of damages as a proximate result of such
negligent conduct. In the manner of separate affirmative defenses Dixon avers that New York was guilty of contributory negligence and of assumption of risk, stressing that under either principle recovery would be barred.
In the case of Sans v. Ramsey Golf & Country Club, Inc. , 29 N.J. 438 (1959), at p. 448, Justice Francis said:
"The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The elements are myriad. The law has never undertaken to define all of the possible sources of annoyance and discomfort which would justify such a finding. Pollock, Torts (1887), 260, 261. Litigation of this type usually deals with the conflicting interests of property owners and the question of the reasonableness of the defendant's mode of use of his land. The process of adjudication requires recognition of the reciprocal right of each owner to reasonable use, and a balancing of the conflicting interests. The utility of the defendant's conduct must be weighed against the quantum of harm to the plaintiff. The question is not simply whether a person is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neighbor's land or operation of his business. Prosser, Torts (2d ed. 1955), 410. As the Court of Appeals of Ohio put it in Antonik v. Chamberlain, 81 Ohio App. 465, 78 N.E. 2d 752, 759 (1947):
'The law of nuisance plys between two antithetical extremes: The principle that every person is entitled to use his property for any purpose that he sees fit, and the opposing principle that everyone is bound to use his property in such a manner as not to injure the property or rights of his neighbor.'"
The initial position that Dixon is faced with is its own conduct in the manner and means it assumed to adopt the leased location to accommodate the storage of sulphur, including the eventual deposit of sulphur particles upon plaintiff's steel at the aforementioned location. The character of the area here as described by the evidence is directly disputed. From the standpoint of Dixon it is adaptable for the storage of sulphur but inappropriate for steel. That is to say, elemental sulphur in its natural state being harmless to steel under ordinary atmospheric conditions, placement of it on the Dixon premises was not a wrongful act but in fact a lawful use and operation. While this legalism can be accepted to the extent of a rightful undertaking, it is
significantly established by the evidence that sulphur dust or particles thereof exposed to sunlight, air and moisture will chemically react to form sulphuric acid, an acid that is corrosive to steel. The latter expression of occurring ...