Paul Martin and Verla Martin v. Reynolds Metals Corporation

This case presents novel questions under ' Rules 27 and 34, F.R.Civ.P. We conclude that the order appealed from was within the powers of the court below. That court, as we shall show, had jurisdiction under 28 U.S.C. § 1332 (diversity). The appeal is proper under 28 U.S.C. § 1291 , since the order is final so far as the proceeding below is concerned. (Mosseller v. U. S., CA 2, 158 F.2d 380, 382 ; cf. Todd Engineering Dry Dock & Repair Co., Inc. v. U. S., CA 5, 32 F.2d 734, 735 )

Appellee, to which we shall refer as “Reynolds”, filed a “Petition to Perpetuate Evidence”, purporting to act under Rules 27 and 34, F.R.Civ.P. Briefly, the petition shows: Reynolds is a Delaware corporation and has its principal office in Virginia. Appellants are citizens of Oregon. Reynolds owns property near Troutdale, Oregon, west of the Sandy River, on which it operates an aluminum reduction plant. Appellants also own property nearby, and east of the river, on which they raise cattle. Appellants claim that, since 1955, fluorides emanating from the Reynolds’ plant have been discharged on their lands and into the water thereon, and their cattle have been injured by eating vegetation and drinking water…