McCarthy v. Bunker Hill & Sullivan Mining & Concentrating Co.

164 F. 927, 92 C.C.A. 259, 1908 U.S. App. LEXIS 4699

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 1908
• Docket: No. 1,397
• Status: Published

Opinion

ROSS, Circuit Judge

(after stating the facts as above). The extent and value of the mining operations of the appellees are not controverted, and it is practically conceded on behalf of the appellants that the granting of the injunction to which it .is insisted they are entitled must necessarily result in closing those great operations in the Cceur d’Alene region, in the depopulation of that section of country, the destruction not only of the mining business there, but the business of the numerous towns that are shown by the record to be wholly dependent upon that industry, and the depriving of many of the farmers themselves in the valley of the Cceur d’Alene river of a market for their products. If the established principles of equity entitle the appellants to this drastic relief, it must, as a matter of course, be awarded them, however disastrous the consequences. But is the case made by the record such as to demand or even justify the injunction sought? It is very evident from the record that the exaggerations and misstatement of matters of fact is very gross. The briefs also disclose intense feeling on the part of the opposing counsel, which, perhaps, is not unnatural in view of all of the circumstances of the case and of the large interests involved. With this latter feature, however, we, of course, have nothing to do. The case itself is. like all such cases are, of very great importance, and calls for the exercise of the greatest care and caution in its consideration and disposition, lest the weak be not afforded the protection to which they may be justly entitled, and, on the other hand, lest the strong be denied their just rights, acquired in the pursuit of enterprises not only lawful in themselves, but sanctioned and encouraged by both national and state legislation, and redounding to the great good of thousands of people and to the country as a whole. The testimony and exhibits are altogether too voluminous to permit of a specific review of them in an opinion of reasonable length, so we shall confine ourselves to a brief statement of the principles by which we are guided, and of the grounds upon which we rest our judgment.

In all of the mining states the right to the reasonable use of the public streams for mining purposes is given by usage, custom and law, and by section 3 of article 15 of the Constitution of the state of Idaho, where the properties here in question are situate, miners are given the preferred right to the use of the waters of the streams of that state over, among others, manufacturers and agriculturists. Such right, however, is not unlimited, and does not carry with it the right to destroy the nroperty of any other person. In other words, the maxim, “Sic utere tuo ut alienum non tedas,” applies to such a case, and in all cases where the property of any one is injured by such unreasonable use of such a stream the injured party has the absolute and unqualified right to maintain an action for the damages sustained. And, in this very instance, the record before us affirmatively shows that, prior to the institution of the present suit, the appellant Doty, in behalf of himself and his alleged associates, did bring actions at law against the appellees for the recovery of damages for the same alleged wrongful acts here complained of, which law actions were pending at the time of the bringing of the present suit, and presumably are still pending.

To an injunction, however, even on final hearing, no one has an absolute and unqualified right. Such an application appeals to the conscience of the chancellor, to the exercise of a wise and sound discretion, and should be granted or witheld according to the equities of the case as made -to appear by the record. Each case must be considered and made to depend upon its own particular facts and circumstances, in the consideration and determination of which the general rules governing courts of equity are to be borne in mind and applied. Among those rules is the well-established one that an appellate court will not ordinarily interfere with the action of the trial court in either granting or withholding an injunction in cases in which the evidence, is substantially conflicting, and especially where the trial judge, at the. request of the respective parties, has had the benefit of a personal inspection of the premises. Nor should an injunction be granted in any case where it will necessarily operate contrary to the real justice of the case. Furthermore, where, as in the present case, it is sought to enjoin a lawful business, the court should give due consideration to the comparative injury which will result from the granting or refusal of the injunction sought. We so held in the case of Mountain Copper Co. v. United States, 142 Fed. 625, 73 C. C. A. 621, and the Supreme Court of the United. States has so held in several cases, and in three very recent and very important ones. Especially where, as appears by the record before us, the appellants have pending against the ap-pellees actions at law, previously commenced, to- recover damages for the same alleged acts, should a court of equity be very slow to stop.the vast operations here in question, thereby throwing out of employment thousands of men, practically wiping out of existence important towns, ruining a large number of business men, destroying markets for the crops of many farms, and where the business in and of itself is not only not unlawful, but, by the Constitution of the state in which all of the properties in question are situate, is expressly given the preferred right over the great industry of agriculture itself, and where, by Congressional legislation as well as by usage, custom, and laws in all of the mining states and territories, it is sanctioned and encouraged. Especially, too, should a court of equity be very slow to grant such an injunction, with the necessary consequences stated, in advance of a trial of the law actions for damages already brought and pending, and where, as here, the appellees deny the existence of the facts upon which the conclusion that a nuisance exists are based, where the evidence is very conflicting, and where it is most difficult to ascertain the exact truth as between' the conflicting statements. Every presumption must, of course, be indulged that the appellants will receive justice in the court in which they have brought theit actions at law for damages, and in which actions the appellees may avail themselves of a jury trial upon the question of the existence of the alleged nuisance, as well as upon the question of the alleged damages. In the case of Parker v. Winnipisogee Lake & Woolen Co., 67 U. S. 545, 552, 553, 17 L. Ed. 333, the Supreme Court said:

“Where an injunction is granted without a trial at law, it is usually upon the principle of preserving the property until a trial at law can be had. A strong prima facie case of right must be shown, and there must have been no improper delay. The court will consider all the circumstances and exercise a careful discretion. * * • * After the right has been established at law, a court of chancery will not as of course interpose by injunction. It will consider all Hie circumstances, the consequences of such action, and the real equity of the case.”

If, as there expressly held by the Supreme Court, and as we have heretofore said, a court of equity will consider all the circumstances, the consequences of injunction and the real equity of the case, even after a right has been established at law, a fortiori will such a court consider all of those matters where the-action at law has been commenced but not tried.

In the cases of New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820, Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956, and Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, the Supreme Court also held that one has not the absolute and unqualified right to an injunction even on final hearing. In the case of New York City v. Pine, the plaintiff claimed the right to enjoin the city from building a dam and diverting the waters of a certain stream that flowed through their farms in the state of Connecticut. The Supreme Court, for the purpose of its decision, assumed, among other things, that the plaintiffs had the legal right to such flow of the waters of the stream, but notwithstanding that, among other assumptions, it held that the plaintiffs were not entitled to the perpetual injunction awarded by the lower court; saying:

“Tins is not a case between two individuals in which is involved simply the pecuniary interests of the respective parties. On the one side are two individuals claiming that their property rights are infringed — rights which can be measured in money, and that not a large sum; on the other, a municipality undertaking a large work with a view of supplying many of its citizens with one of the necessities of life. According to the averments in the bill, the city had been engaged in this work for two years, and had nearly completed the dam. While the near completion is denied in the answer, there is no denial of the time during which the city had been engaged in the work, and it stands as an admitted fact that for two years prior to the commencement of this suit the work had been under way. It is true the testimony discloses that the plaintiffs and the city had been trying to agree upon the amount of compensation for the injuries they would sustain, and were not insisting upon their alleged right to an abandonment of the work. It is one thing to state a right and proffer a waiver thereof for compensation, and an entirely different thing to state the same right and demand that it should be respected. In the latter case the defendant acts at his peril. In the former he may well assume that payment of a just compensation will be accepted in lieu of the light. In the latter the plaintiff holds out the single question of the validity and extent of the right; in the former he presents the right as the foundation of a claim for compensation, and his threat to enforce the right if compensation is not made is simply a club to compel payment of the sum he deems the measure of his damages. Further, the testimony shows that the city was settling with other parties similarly situated, and paying, out large sums of money for the damages such parties would sustain. So it is not strange that the city acted on the assumption that the only matter to be determined was the amount of the compensation.

“If the plaintiffs had intended to insist upon the strict legal rights (which for the purposes of this case we assume they possessed), they should have commenced at once, and before the city had gone to expense, to restrain any work by it. It would be inequitable to permit them to carry on negotiations with a view to compensation until the city had gone to such great expense, and then, failing to agree upon the compensation, fall back upon the alleged absolute right to prevent the work. If they had intended to rest upon such right and had commenced proceedings at once, the'city might have concluded to abandon the proposed undertaking and seek its water supplies in some other direction. If this injunction is permitted to stand, the city must pay whatever the plaintiffs see fit to demand, however extortionate that demand may be, or else abandon the work and lose the money it has expended. While we do not mean to intimate that the plaintiffs would make an extortionate demand, we do hold that equity will not place them in a position where they can enforce one.”

In a case between two sovereign states — Kansas and Colorado — in which circumstances the court held, in effect, in the case of Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, that it was less willing to balance harm than in cases between private individuals, it nevertheless distinctly held in Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956, as will be seen from its summing up on page 117 of 206 U. S., on page 675 of 27 Sup. Ct. (51 L. Ed. 956), that the diversion of the waters of the Arkansas river in Colorado, resulting in great good to that state, was of perceptible injury to portions of the Arkansas valley in Kansas, particularly those portions closest to the Colorado line, but that to the great -body of the valley it had worked little, if any, detriment; and, in view of those facts, the court’ held upon final hearing that it was not satisfied that Kansas had made out a case entitling it to a decree. At the same time it held it to be obvious that, if the depletion of the waters of the river by Colorado continues to increase, there might come a time when Kansas would be entitled to an injunction; so, in dismissing the bill of complaint, it did so “without prejudice to the right of the plaintiff to institute new proceedings whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas river by Colorado, its corporation or citizens or substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two states resulting from the’flow of the river.”

And the same court expressly declared the same principle in the case of Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038. See principal and concurring opinions, pages 238, 240, of 206 U. S., pages 619, 620, of 27 Sup. Ct. (51 L. Ed. 1038).

The record in the case before us shows that upon all of the material facts undertaken to be shown by the complainants there not only appears to be a very substantial conflict in the proofs, but, in some respects at least, the preponderance of the evidence seems to be largely in favor of the defendants. Take, for instance, the claim on the part of the complainants of the death of some of the complainants’ stock by reason of drinking the waters of the river. The number of witnesses who testified on behalf of the defendants to the effect that the complainant’s stock did not die by reason of mineral poison in the waters of the river (and whose testimony, so far as we can know, is entitled to as much credence as the complainants’ witnesses) are not only greater in number, but their testimony to the effect that there were similar deaths of stock in the bottom lands of other rivers in Idaho, as well as along a river in British Columbia where there was no mining, is suggestive and confirmatory of the contention upon that point upon the part of the defendants. But what seems to be quite conclusive upon that point is the uncontradicted testimony in the record to the effect that ever since the establishment of the mines and mining towns along the branches of the Coeur d’Alene river, and nearer to the mills and works of the appellees, animals of all kinds — dairy cows, horses, and dogs — as well as people, have regularly drunk the waters of the river, and that in no single instance was there ever a death from mineral poison. Then, too, the testimony seems to decidedly preponderate in favor of the defendants upon the proposition that there has been no such general and serious damage to the agricultural lands of the valley as is claimed on the part of the complainants, and, indeed, excepting a few and very restricted areas, uo damage at all. That seems to be indicated by a strong preponderance of the testimony to the effect that, excepting in comparatively narrow and restricted strips along a few of the ditches or gulleys through the lands of a few of the complainants, no lead or zinc was found in the numerous analysis made of the lands that were periodically overflowed by the river, and, by what seems to be pretty well established, that the crops of the valley in the year 1905, after the last freshet, never were so good before, and by the numerous photographs of the various ranches in the valley, which, so far from indicating any serious damage, show an unusual and vigorous growth of crops of various kinds. Tt is true that photographs are not very reliable, since the camera may be so placed as to give a deceptive impression. Still, in view of the large number of photographs and the general character of the crops and growth indicated by them, they are in some respects confirmatory of the contentions on the part of the ap-pellees. The facts stated by the trial judge in his opinion in the case, especially in view of his personal inspection of the premises, made at I he request of the respective parties, are, we think, entitled to great weight. From, his findings, and also from the testimony introduced, it seems clear that the allegations and contentions on the part of the appellants to the effect that the operations of the appellees have resulted in interfering with the navigation of the river are entirely unfounded.

Upon the record before us we hold that the court below should have dismissed the bill of complaint at the cost of the complainants, without prejudice, however, to any other or further suit of the complainants, or either of them, in the event that any other or further injury than is here shown shall be shown to have been sustained by them, or either of them, and, of course, without prejudice to any action or actions for damages actually sustained by them or either of them. The case is remanded to the court below with directions to modify the judgment as indicated, and, as so modified, it will stand affirmed.

In view of the very important principles and of the large interests involved, it is further ordered that our mandate be stayed for 90 days in order to afford the aggrieved parties an opportunity to apply to the Supreme Court for a writ of certiorari, in the event they shall so desire.