CAMPBELL, J. —
It is insisted by the appellant that, if any wrong is being done by permitting débris from its mining operations to go into the river, the acts constitute a public nuisance, and that the plaintiff may not maintain this action, because it does not appear that the injury sustained by him differs in kind from that sustained by the general public. The supreme court of the United States, our appellate court, in the early case of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L. Ed. 1012, after reviewing the authorities, say: ‘ ‘ The principle then is that, in ease of a public nuisance, where [201]*201a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot maintain a stand in a court of equity, unless he avers and proves some special injury.” In Mississippi etc. R. R. Co. v. Ward, 2 Black, 485, 17 L. Ed. 311, it is said: “A bill in equity to abate a public nuisance, filed by one who has sustained special damages, has succeeded to the former mode in England of an information in chancery, prosecuted on behalf of the crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor than on his own account; and unless he shows that he has sustained, and is still sustaining, individual damage, he cannot be heard. He seeks redress of a continuing trespass and wrong against himself, and acts in behalf of all others, who are or may be injured.”
The rule, as stated by many, if not most, of the courts of the states, is that to authorize a private citizen to maintain an action to abate a public nuisance he must show a special injury, different in kind, and not merely in degree, from that suffered by the public generally, and much difficulty has been found in determining when the injury differs in kind rather than in degree from that suffered by the public. This difficulty has led the supreme court of Minnesota to declare that : “No general rule can be laid down which can be readily applied in every ease. Where to draw the line between eases where the injury is more general or more equally distributed and cases where it is not, where by reason of local situation the damage is comparatively much greater to the special few, is often a difficult task. In spite of all the refinements and distinctions' which have been made, it is often a mere matter of degree, and the courts have to draw the line between the more immediate obstruction or peculiar interference, which is a ground for special damage, and the more remote obstruction or interference which is not.” Kaje v. Railway Co., 57 Minn. 422, 47 Am. St. Rep. 627, 59 N. W. 493. One of the clearest statements, we think, of the distinction is to be found in Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95, 90 Am. Dec. 181, where it is said: “The real distinction would seem to be this: That when the wrongful act is of itself a disturbance or obstruction only to the exercise of the common and public right, the sole remedy is by public prosecution, unless special damage is caused to individuals. In such case the act of itself [202]*202does no wrong to individuals distinct from that done to the whole community. But when the alleged nuisance would constitute a private wrong by injuring property or health, or creating personal inconvenience or annoyance, for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance. This we think is substantially the conclusion to be derived from a careful examination of the adjudged cases. The apparent conflict between them can be reconciled on the ground that an injury to private property, or to the health and comfort of an individual, is in its nature special and peculiar, and does not cause a damage which can properly be said to be common or public, however numerous may be the cases of similar damage arising from the same cause.”
Tested by these rules, we have no difficulty in concluding that the plaintiff may maintain this action. By reason of the acts of the defendant he, with other owners of land irrigated by water from the Gila river, is suffering a direct individual injury, different from that of the general public. It is true that the general public also suffers an injury from the acts of the defendant, but only in the sense that whatever decreases the general prosperity of the community injures all who are members of the community. The injury of those so suffering is general, and not special.
Appellant contends that the facts found by the court do not disclose that it is committing any wrong, for the reason that it is engaged in the conduct of a lawful business; that the right to use the waters of a public stream for mining purposes is recognized by law; that its rights in that respect are equal to those of the agriculturist to use the water for purposes of irrigation; and that in depositing in the river only such of the slimes and tailings as is reasonably necessary in the successful operation of its business it is acting wholly within its rights. Riparian rights do not exist in this territory. The laws of the territory do recognize the right to appropriate the waters of public streams for mining purposes, as well as for agriculture. No superior right, however, is accorded the miner. Under the doctrine of appropriation, he who is first in time is first in right, and so long as he contin[203]*203ues to apply the water to a beneficial use, subsequent appropriated may not deprive him of the rights his appropriation gives, either by diminishing the quantity or deteriorating the quality. We do not mean to say that the agriculturist may captiously complain of the reasonable use of water by the miner higher up the stream, although it pollutes and makes the water slightly less desirable, nor that a court of equity should interfere with mining industries because they cause slight inconveniences or occasional annoyances, or even some degree of interference, so long as such do no substantial damage; but to permit a subsequent appropriator to so pollute or burden the stream with débris as substantially to render it less available to the prior appropriator causes him to lose the rights he gained by appropriation as readily as would the diversion of a portion of the water which he appropriated. The plaintiff, by his grantors, appropriated water for the purposes of- irrigation in 1872, as did other agriculturists in the community, and, while it does not clearly‘appear when the defendant first made use of water in connection with its operations, it does appear that it was not prior to 1885.
Counsel press upon us the proposition that we should' consider the comparative damage that will be done by granting or withholding an injunction in this case, alleging that the effect of an injunction will be to stop the operation of extensive works, deprive thousands of persons of employment, and cause loss and distress to other thousands. It is undoubtedly true that a court should exercise great care and caution in acting where such results are to follow. It should; very clearly appear that the acts of the defendant are wrongful, and that the complainant is suffering substantial and irreparable injury, for which he cannot secure adequate compensation at law. A number of eminent courts support the contention of appellant that the comparative injury to the parties in granting or withholding relief must also be considered. Among the cases so holding is McCarthy v. Bunker Hill and Sullivan Mining etc. Co.,
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CAMPBELL, J. —
It is insisted by the appellant that, if any wrong is being done by permitting débris from its mining operations to go into the river, the acts constitute a public nuisance, and that the plaintiff may not maintain this action, because it does not appear that the injury sustained by him differs in kind from that sustained by the general public. The supreme court of the United States, our appellate court, in the early case of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L. Ed. 1012, after reviewing the authorities, say: ‘ ‘ The principle then is that, in ease of a public nuisance, where [201]*201a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot maintain a stand in a court of equity, unless he avers and proves some special injury.” In Mississippi etc. R. R. Co. v. Ward, 2 Black, 485, 17 L. Ed. 311, it is said: “A bill in equity to abate a public nuisance, filed by one who has sustained special damages, has succeeded to the former mode in England of an information in chancery, prosecuted on behalf of the crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor than on his own account; and unless he shows that he has sustained, and is still sustaining, individual damage, he cannot be heard. He seeks redress of a continuing trespass and wrong against himself, and acts in behalf of all others, who are or may be injured.”
The rule, as stated by many, if not most, of the courts of the states, is that to authorize a private citizen to maintain an action to abate a public nuisance he must show a special injury, different in kind, and not merely in degree, from that suffered by the public generally, and much difficulty has been found in determining when the injury differs in kind rather than in degree from that suffered by the public. This difficulty has led the supreme court of Minnesota to declare that : “No general rule can be laid down which can be readily applied in every ease. Where to draw the line between eases where the injury is more general or more equally distributed and cases where it is not, where by reason of local situation the damage is comparatively much greater to the special few, is often a difficult task. In spite of all the refinements and distinctions' which have been made, it is often a mere matter of degree, and the courts have to draw the line between the more immediate obstruction or peculiar interference, which is a ground for special damage, and the more remote obstruction or interference which is not.” Kaje v. Railway Co., 57 Minn. 422, 47 Am. St. Rep. 627, 59 N. W. 493. One of the clearest statements, we think, of the distinction is to be found in Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95, 90 Am. Dec. 181, where it is said: “The real distinction would seem to be this: That when the wrongful act is of itself a disturbance or obstruction only to the exercise of the common and public right, the sole remedy is by public prosecution, unless special damage is caused to individuals. In such case the act of itself [202]*202does no wrong to individuals distinct from that done to the whole community. But when the alleged nuisance would constitute a private wrong by injuring property or health, or creating personal inconvenience or annoyance, for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance. This we think is substantially the conclusion to be derived from a careful examination of the adjudged cases. The apparent conflict between them can be reconciled on the ground that an injury to private property, or to the health and comfort of an individual, is in its nature special and peculiar, and does not cause a damage which can properly be said to be common or public, however numerous may be the cases of similar damage arising from the same cause.”
Tested by these rules, we have no difficulty in concluding that the plaintiff may maintain this action. By reason of the acts of the defendant he, with other owners of land irrigated by water from the Gila river, is suffering a direct individual injury, different from that of the general public. It is true that the general public also suffers an injury from the acts of the defendant, but only in the sense that whatever decreases the general prosperity of the community injures all who are members of the community. The injury of those so suffering is general, and not special.
Appellant contends that the facts found by the court do not disclose that it is committing any wrong, for the reason that it is engaged in the conduct of a lawful business; that the right to use the waters of a public stream for mining purposes is recognized by law; that its rights in that respect are equal to those of the agriculturist to use the water for purposes of irrigation; and that in depositing in the river only such of the slimes and tailings as is reasonably necessary in the successful operation of its business it is acting wholly within its rights. Riparian rights do not exist in this territory. The laws of the territory do recognize the right to appropriate the waters of public streams for mining purposes, as well as for agriculture. No superior right, however, is accorded the miner. Under the doctrine of appropriation, he who is first in time is first in right, and so long as he contin[203]*203ues to apply the water to a beneficial use, subsequent appropriated may not deprive him of the rights his appropriation gives, either by diminishing the quantity or deteriorating the quality. We do not mean to say that the agriculturist may captiously complain of the reasonable use of water by the miner higher up the stream, although it pollutes and makes the water slightly less desirable, nor that a court of equity should interfere with mining industries because they cause slight inconveniences or occasional annoyances, or even some degree of interference, so long as such do no substantial damage; but to permit a subsequent appropriator to so pollute or burden the stream with débris as substantially to render it less available to the prior appropriator causes him to lose the rights he gained by appropriation as readily as would the diversion of a portion of the water which he appropriated. The plaintiff, by his grantors, appropriated water for the purposes of- irrigation in 1872, as did other agriculturists in the community, and, while it does not clearly‘appear when the defendant first made use of water in connection with its operations, it does appear that it was not prior to 1885.
Counsel press upon us the proposition that we should' consider the comparative damage that will be done by granting or withholding an injunction in this case, alleging that the effect of an injunction will be to stop the operation of extensive works, deprive thousands of persons of employment, and cause loss and distress to other thousands. It is undoubtedly true that a court should exercise great care and caution in acting where such results are to follow. It should; very clearly appear that the acts of the defendant are wrongful, and that the complainant is suffering substantial and irreparable injury, for which he cannot secure adequate compensation at law. A number of eminent courts support the contention of appellant that the comparative injury to the parties in granting or withholding relief must also be considered. Among the cases so holding is McCarthy v. Bunker Hill and Sullivan Mining etc. Co., 164 Fed. 927, decided by the circuit court of appeals for this circuit, a court for which we entertain the highest respect, and which exercises an appellate jurisdiction over this court in certain cases; and, if this case were reviewable there, we should not feel at liberty to express views in conflict with those of that [204]*204court. But this case is reviewable only by the supreme court of the United States, and we cannot find, as suggested by the circuit court of appeals, that that court has given adherence to the doctrine. It seems to us that to withhold relief where irreparable injury is, and will continue to be, suffered by persons whose financial interests are small in comparison to those who wrong them is inconsistent with the spirit of our jurisprudence. It is in effect saying to the wrongdoer, “If your financial interests are large enough so that to stop you will cause you great loss, you are at liberty to invade the rights of your smaller and less fortunate neighbors. ” We prefer the doctrine adhered to by Judge Hawley in his dissenting opinion in Mountain Copper Co. v. United States, 142 Fed. 625, 73 C. C. A. 621, and by Judge Sawyer in Woodruff v. Northbloomfield Gravel Min. Co. (C. C.), 18 Fed. 753, 9 Saw. 441. In the latter case, it is said: “ Of course great interests should not be overthrown on trifling or frivolous grounds, as where the maxim ‘De minimis non curat lex’ is applicable; but every substantial, material right of person or property is entitled to protection against all the world. It is by protecting the most humble in his small estate against the encroachments of large capital and large interests that the poor man is ultimately enabled to become a capitalist himself. If the smaller interest must yield to the larger, all small property rights, and all smaller and less important enterprises, industries, and pursuits would sooner or later be absorbed by the large, more powerful few; and their development to a condition of great value and importance, both to the individual and the public, would be arrested in its incipiency.” To the same effect are the remarks of Judge Marshall in McCleery v. Highland Boy Gold Min. Co. (C. C.), 140 Fed. 951, wherein he says: “The substantial contention of the defendant is that it is engaged in a business of such extent, and involving such a large capital, that the value of the plaintiff’s rights sought to be protected is relatively small, and that therefore an injunction, destroying the defendant’s business, would inflict a much greater injury on it than it would confer benefit upon the plaintiffs. Under such circumstances it is asserted, courts of equity refuse to protect legal rights by injunction and remit the injured party to the partial relief to be obtained in actions at law. Stated in another way, the claim in effect is that one [205]*205wrongfully invading the legal rights of his neighbor will he permitted by a court of equity to continue the wrong indefinitely on condition that he invest sufficient capital in the undertaking. I am unable to accede to this statement of the law. If correct, the property of the poor is held by uncertain tenure, and the constitutional provisions forbidding the taking of property for private use would be of no avail. As a substitute it would be declared that private property is held on the condition that it may be taken by any person who can make a more profitable use of it, provided that such person shall be answerable in damage to the former owner for his injury. In a state of society the rights of the individual must to some extent be sacrificed to the rights of the social body; but this does not warrant the forcible taking of property from a man of small means to give it to the wealthy man, on the ground that the public will be indirectly advantaged by the greater activity of the capitalist. Public policy, I think, is more concerned in the protection of individual rights than in the profits to inure to individuals by the invasion of those rights.” See, also, Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540, 57 Atl. 1065, 66 L. R. A. 712.
However if we felt called upon to undertake the task of comparing the injury that must result to the two communities, we are not certain that the comparison would result favorably to the appellant. While the testimony shows, and the trial court found, that the appellant has invested about $15,000,000 and gives employment to about three thousand men, and that many others are dependent upon the operation of its properties, the testimony also discloses that but one of its three concentrators will be affected by the injunction; that the slimes and tailings from the others are impounded and do not find their way into the river, and it is not shown just what hardship will result to the corporation or community from the closing of this concentrator. Upon the other hand, the one principal industry of the Upper Gila Valley, alfalfa raising, will suffer great injury and possible destruction if the injunction be refused. The destruction of that industry, or even serious injury to it, will in a measure bring disaster to a large and prosperous community. In our opinion, a court should exercise great care but should not refuse relief where the injury is substantial and the right clear.
[206]*206One of the witnesses who testified on behalf of the defendant was Professor R. H. Porbes, director and chemist of the Agricultural Experiment Station at the University of Arizona. Both plaintiff and defendant put in evidence a bulletin prepared by Professor Forbes, and issued by the University of Arizona, in which are set forth the observations and conclusions of the writer ás to the effects of the sediments of the Gila river and- of the mining detritus, such as comes from appellant’s concentrators, upon the agricultural lands of the Upper Gila Yalley. Appellant now complains that some of the conclusions reached by Professor Forbes are not warranted by the facts which he observed and recorded. We have given the matter attention, but to review the testimony here would unduly extend this opinion. It seems sufficient to say that in our opinion the testimony of Professor Forbes, together with that of the farmers, fully sustains the findings of fact made by the trial court.
" It would seem from the testimony of Professor Forbes that it is practicable, at comparatively small expense, to construct settling basins at or near the heads of the canals, or elsewhere along the river, by means of which the tailings and slimes carried by the Gila river from appellant’s concentrator may be arrested and prevented from being deposited upon the farming lands. We do not agree with appellant that the farmers should be required to construct and maintain such basin, but we see no reason why, if such basins will afford relief, appellant should not be permitted to construct and maintain them at its own expense. This suggestion does not appear to have been presented to the trial court, and its decree is so drawn that such means of relief may not be availed of, since appellant is enjoined from permitting any of the tailings or slimes to reach the waters of the Gila river. We think, to enable the mining company to take advantage of any efforts it may make in this direction, it should be left to the discretion of the trial court hereafter, upon a proper showing made to it, temporarily to modify the injunction so as to permit of reasonable experiments being made to ascertain the probability of successfully erecting and maintaining settling basins to effectually dispose of the tailings and slimes without detriment to the lands lying under the canals, and with authority in the district court like[207]*207wise permanently to enforce or modify the injunction in accordance with the conditions as they shall be found to be. ¡
NOTE. — As to pollution of stream by mining operations, see notes to Drake v. LacLy Ensley Coal I. Sf L. Co. (Ala.), 24 L. E. A. 64, and Straight v. Hover (Ohio), 22 L. E. A., N. S., 276.
As to right of prior appropriator of water, see note to Isaacs v. Barber (Wash.), 30 L. E. A. 665.
The decree of the district court is modified as indicated, and, as modified, is affirmed..
KENT, C. J., and SLOAN and DOAN, JJ., concur.