Mountain Copper Co. v. United States
Opinions
ROSS, Circuit Judge,
after making the foregoing statement, delivered the opinion of the court.
In considering the case it is important to remember that the question to be determined is one between the United States and the defendant company only; the government suing, not in its sovereign capacity, but as a landowner, to enjoin alleged injuries to its property, not directly, but indirectly, through the maintenance of an alleged nuisance by the defendant on its own property. If other owners of land have been so injured by the same or similar acts of the defendant as to entitle them to an injunction, or to any other relief, it will be time enough to consider their grievances when they shall properly bring them before the court. Therefore the testimony of the numerous witnesses introduced on behalf of the complainant tending to show injury to fruit and other trees and things in Happy Valley ¿ Shasta county, and upon other lands than those of the complainant, by reason of the fumes generated by the defendant company, is irrelevant to the case now presented, except in so far as it goes to show that the acts complained of by the complainant affect those persons in a similar manner, and, indeed, in a much greater degree.
It is the well-established law that, when the government comes into a court asserting a property right, it occupies the position of any and every other suiter. Its rights are precisely the same; no greater, no less. United States v. Clark (C. C. A.) 138 Fed. 294; United States v. Detroit Timber & Lumber Co., 131 Fed. 668, 67 C. C. A. 1; United States v. Flint, 4 Sawy. 42, Fed. Cas. No. 15,121; Foster’s Federal Practice, § 63; United States v. Barker, 12 Wheat. 559, 6 L. Ed. 728; Mitchel v. United States, 9 Pet. 743, 9 L. Ed. 283; Brent v. Bank of Washington, 10 Pet. 615, 9 L. Ed. 547; United States v. Smith, 94 U. S. 217, 24 L. Ed. 115; Am. & Eng. Enc. of Law (2d Ed.) vol. 4, p. 271.
We are therefore to inquire, first, what are the injuries shown to have been sustained and that will be sustained in the future by reason of the acts already committed by the defendant, and that it threatens to continue? As has been said, all of them are indirect and grow out of the maintenance of an alleged nuisance on its own property. The defendant has not entered upon any of the land of the complainant- and cut down or destroyed any of the trees, timber, or undergrowth thereon, or threatened to do so, as was done in the case of Northern Pacific Railroad Co. v. Hussey, 61 Fed. 231, 9 C. C. A. 463, cited by counsel from this court, and in which we said that to cut down, destroy, or carry away the timber standing upon land in which the complainant had an interest was “essentially to destroy and take away [630] the very substance of the estate. That an injunction will be awarded, in behalf of one showing the necessary interest in the property, to prevent such waste and destruction, is thoroughly settled.” There is no doubt of the correctness of that ruling, or of a similar ruling in numerous similar cases cited by counsel for the appellee. The distinction between them and the case now under consideration is sufficiently obvious without elaboration. Here, as has been said, the appellant has never entered upon any of the land of the complainant, and cut down or destroyed any tree or underbrush, of otherwise directly interfered with the complainant’s freehold. The acts of the appellant that are complained of were all committed on its own-property. It is quite true that it is a maxim of the law that every one must so use his own property as not to interfere with that of another. But, where one cannot use his own property at all without indirectly injuriously affecting the property of another, then the sound discretion of the court, of equity that is appealed to to abate the nuisance is invoked, and should be wisely exercised.
Looking at the record in the present case, we find the injuries that have been and that will be inflicted upon the land of the complainant involved in this suit are indicated in the following extracts from the testimony of Charles L. Reynolds and Lewis T. Wright, who seem to have been the only witnesses examined in respect to that important matter. Reynolds, having testified that he is a civil and mining engineer by profession, and a United States deputy mineral surveyor for the district of California, and was employed by the appellant to make an examination of all the lands of the complainant described in the bill that had been injured in any way, testified that he did so, spending about three weeks in such examination, his affidavit in respect to which was admitted in evidence without objection as to the form of proof. This witness was questioned and answered as follows:
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ROSS, Circuit Judge,
after making the foregoing statement, delivered the opinion of the court.
In considering the case it is important to remember that the question to be determined is one between the United States and the defendant company only; the government suing, not in its sovereign capacity, but as a landowner, to enjoin alleged injuries to its property, not directly, but indirectly, through the maintenance of an alleged nuisance by the defendant on its own property. If other owners of land have been so injured by the same or similar acts of the defendant as to entitle them to an injunction, or to any other relief, it will be time enough to consider their grievances when they shall properly bring them before the court. Therefore the testimony of the numerous witnesses introduced on behalf of the complainant tending to show injury to fruit and other trees and things in Happy Valley ¿ Shasta county, and upon other lands than those of the complainant, by reason of the fumes generated by the defendant company, is irrelevant to the case now presented, except in so far as it goes to show that the acts complained of by the complainant affect those persons in a similar manner, and, indeed, in a much greater degree.
It is the well-established law that, when the government comes into a court asserting a property right, it occupies the position of any and every other suiter. Its rights are precisely the same; no greater, no less. United States v. Clark (C. C. A.) 138 Fed. 294; United States v. Detroit Timber & Lumber Co., 131 Fed. 668, 67 C. C. A. 1; United States v. Flint, 4 Sawy. 42, Fed. Cas. No. 15,121; Foster’s Federal Practice, § 63; United States v. Barker, 12 Wheat. 559, 6 L. Ed. 728; Mitchel v. United States, 9 Pet. 743, 9 L. Ed. 283; Brent v. Bank of Washington, 10 Pet. 615, 9 L. Ed. 547; United States v. Smith, 94 U. S. 217, 24 L. Ed. 115; Am. & Eng. Enc. of Law (2d Ed.) vol. 4, p. 271.
We are therefore to inquire, first, what are the injuries shown to have been sustained and that will be sustained in the future by reason of the acts already committed by the defendant, and that it threatens to continue? As has been said, all of them are indirect and grow out of the maintenance of an alleged nuisance on its own property. The defendant has not entered upon any of the land of the complainant- and cut down or destroyed any of the trees, timber, or undergrowth thereon, or threatened to do so, as was done in the case of Northern Pacific Railroad Co. v. Hussey, 61 Fed. 231, 9 C. C. A. 463, cited by counsel from this court, and in which we said that to cut down, destroy, or carry away the timber standing upon land in which the complainant had an interest was “essentially to destroy and take away [630] the very substance of the estate. That an injunction will be awarded, in behalf of one showing the necessary interest in the property, to prevent such waste and destruction, is thoroughly settled.” There is no doubt of the correctness of that ruling, or of a similar ruling in numerous similar cases cited by counsel for the appellee. The distinction between them and the case now under consideration is sufficiently obvious without elaboration. Here, as has been said, the appellant has never entered upon any of the land of the complainant, and cut down or destroyed any tree or underbrush, of otherwise directly interfered with the complainant’s freehold. The acts of the appellant that are complained of were all committed on its own-property. It is quite true that it is a maxim of the law that every one must so use his own property as not to interfere with that of another. But, where one cannot use his own property at all without indirectly injuriously affecting the property of another, then the sound discretion of the court, of equity that is appealed to to abate the nuisance is invoked, and should be wisely exercised.
Looking at the record in the present case, we find the injuries that have been and that will be inflicted upon the land of the complainant involved in this suit are indicated in the following extracts from the testimony of Charles L. Reynolds and Lewis T. Wright, who seem to have been the only witnesses examined in respect to that important matter. Reynolds, having testified that he is a civil and mining engineer by profession, and a United States deputy mineral surveyor for the district of California, and was employed by the appellant to make an examination of all the lands of the complainant described in the bill that had been injured in any way, testified that he did so, spending about three weeks in such examination, his affidavit in respect to which was admitted in evidence without objection as to the form of proof. This witness was questioned and answered as follows:
“Q. How did you identify the source of injury in making this examination, Mr. Reynolds? A. By a personal examination of all trees that had been damaged. Incidentally, I may remark that it was possible a portion of the trees that I have reported as being killed or injured by smoke have been killed or injured from other causes. Q. Then your report contains a complete statement of all kinds of trees which have been killed or injured from any apparent cause. A. From any apparent cause. Q. Whether fumes or otherwise; and you simply assume that the fumes have done all the injury? A. I have gone to the limit. Q. What is the nature in general of the vegetation in that area? A. We have a digger pine tree and some small oaks, and there are some firs. They are all small. Q. Are any of the trees valuable for lumber? A. 1 never found any in that area, and the government reports, which I searched, reported them, with the exception of a very few cases, as being fit for firewood only. You will find that in my report. Q. You mean in your affidavit? A. In my affidavit. Q. Have any of the trees ever been listed by the government as timber land? A. There are one or two sections. I think that is all. If you will permit me to look at that affidavit, I can refresh my memory from it very easily, and save time. (After looking at affidavit) No, I think I can save time by looking at the map. I feel quite certain that there are no lands reported by the government as containing valuable timber that are within what I have termed the damaged zone on my map. Q. In your investigation did you see any lands that had any valuable timber upon them in the damaged zone? A. No, sir. I might state that the valuable timber does not come down below an elevation of 1,500 feet You will find it to the north of [631] the property, and smoke does not get over In there. Q. All this area that you examined, then, is below the timber level? A. Is below that good timber level; yes, sir. Q What is the nature of the soil? A. There is very little soil on most of the ground. , What there is is rocky. Q. This soil is decomposed granite, is it not, in most of that area? A. Yes, sir. Q. And the hard granite is immediately below the top layers of softened material. A. Yes, sir. Q. Is the timber, such as it is, thick and luxuriant? A. You mean the good timber? Q. The timber on this land. You describe the quality of the timber as not being specially valuable. Is there much of it? A. Not a great deal. It is not a well-timbered country at all. Q. Was there anything to indicate there in jmur examination whether the area of injury was increasing or decreasing — what the tendency was? A. Yes, sir. Q. What did you find in that respect? A. I found that within the old killed zone, where the brush had been killed, that fresh brush was now springing up. In fact, if you wish my testimony regarding the last few days, I can go still further. In the town of Keswick, immediately underneath the smoke and exposed to the smoke, I saw where some trees had been planted, and I can recollect five at the present time, and they are growing very finely and freely. Q. How near is that to the smelter? A. That is within 1,500 feet of the stack from which most of the smoke is coming. Q. Then the result of your examination at that point— that is, of the lands we have already referred to — was such as to indicate to you that the area of injury is lessening, rather than increasing? A. Every month it is lessening in area. Q. Can you suggest any reason for that change, Mr. Reynolds? A. Yes, sir. Q. What -is it? A. The ceasing on the part of the company of heap roasting, which was formerly carried on. There is no heap roasting done now, practically. Q. There is not roasting in heaps? A. No, sir. The smokes are all gathered through a furnace under the draught. They go out of a long stack, and are separated more thoroughly than they were before. Q. The original method of burning the ore there was to pile it in great heaps in the open air, and then burn those heaps? A. Yes, sir; there was no draught, and the smokes followed the tendency of their weight along the ground.”
In the affidavit of this witness, which, as has been said, was introduced in evidence without objection to the form of the proof, he gives in detail the result of his examination of the lands of the complainant described in the bill that are within the damaged zone, as follows:
“T. 32 N., R. 5 W., M. D. M. Section 5.
“S. E. % : The average acre contains: 2 pines, 4 inches in diameter, dead. 3 pines, 4 inches in diameter, alive. 5 pines, 7 inches in diameter, cut down. 3 oaks, 4 inches in diameter, alive. Manzanita and chaparral undergrowth doing well, and shows no evidence of dying. Lots of fresh brush springing up' this year, from 6 inches to 2 feet high. In this section there remains 200.97 acres of government land and the report of the official survey shows that it is third-rate and broken in character, containing scattering pine and oak.
“T. 32 N., R. 5 W., M. D. M. Section 6.
“S. W. %: The average acre contains: 1 pine, 6 inches in diameter, dead. 3 pines, 6 inches in diameter, alive. 4 pines, 10 inches in diameter, cut down. 1 oak, 8 inches in diameter, alive. Brush doing well. Fresh undergrowth all over the quarter.
“S. E. % : The average acre contains: 5 pines, 7 inches in diameter, dead. 1 pine, 6 inches in diameter, alive. 3 oaks, 9 inches in diameter, alive. Manzanita and chaparral brush alive. Fresh undergrowth all over the quarter.
“N. E. % : The average acre contains: 2 pines, 8 inches in diameter, dead. 5 pines, 7 inches in diameter, alive. 2 oaks, 9 inches in diameter, alive. There remains in this section 451.97 acres of government land. Classed in the government land survey as third-rate land with pine and oak timber.
[632] “T. 32 N., R. 5 W., M. D. M. Section 8.
“S. E. 44: Everything cut down. Average acre: 7 pine stumps, 7 Inches in diameter, cut. New brush is starting up.
“S. E. 44: The pine trees, are cut down. Along the county road the brush is a little thin; but further east, towards the river, the undergrowth is doing nicely. The average count was 5 pines, 5 inches in diameter, cut down, to the acre. New undergrowth springing up everywhere.
“N. E. 44: The average acre contains: 3 pines, 6 inches in diameter, dead. 2 pines, 6 inches in diameter, alive. Undergrowth growing' freely. Considerable timber has been cut on this quarter. I counted upon an average acre 6 pines, 8 inches in diameter, cut down.
“N. W. 44 : The average acre contains: 3 bull pines, 6 inches in diameter, dead. 2 bull pines, 6 inches in diameter, alive. 6 bull pines, 8 inches in diameter, cut down. Brush growing freely and fresh undergrowth springing up. There is left in this section 605.4 acres of government land; rated by the United States deputy land surveyor as third-rate land, broken and mountainous in character, containing pine and oak timber and manzanita brush.
“T. 32 N., R. 5 W., M. D. M. Section 15.
“E. y2 of the N. W. 44: No perceptible damage.
“T. 32 N., R. 5 W., M. D. M. Section 16.
S. W. % of the S. W. 44: The count of an average acre is as follows: 3 pines, 8 inches in diameter, dead. 2 oaks, 10 inches in diameter, alive. Underbrush sickly; fresh brush springing up. There remains in this section but 24.27 acres of government land, and it is classed in the official report of the survey as third-rate and broken, with growth of pine and oak timber.
“T. 32 N., R. 5 W., M. D. M. Section 18.
“N. E. 44: Everything dead or cut down on this subdivision. Counted an average of 10 pine stumps, 8 inches in diameter, cut down.
“N. W. 44: Everything dead or cut down. Average acre, 7 pine stumps, 6 inches in diameter, cut.
“S. W. 44: Everything dead or cut down. Average acre, 3 pine stumps, 8 inches in diameter, dead. 6 pine stumps, 10 inches in diameter, cut down. In this section there is but 305.88 acres subject to governmental control, and the majority of this has been taken up as mining land. The report of the official survey rates this land as third-class and broken; on the north and east sides containing some pine and oak timber.
“T. 32 N., R. 5 W., M. D. M. Section 20.
“E. y2: The bull pine is all dead, except down on the slope towards the river; where some pine and oak exist. All over this subdivision may be seen fresh sprouts of chaparral and manzanita.
“W 44>: The count of an average acre is as follows: 5 pine trees, 6 inches in diameter, dead. 3 pine trees, 8 inches in diameter, cut down. Some oak, about 40 to the quarter section, still alive. The manzanita brush is all dead. Some chaparral still survives. There is still under the control of the government in this section 270.71 acres. The official report of the survey rates the land as third-rate and broken, containing scattering oak. On the north and west sides oak and manzanita brush, and on the east and south side oak, pine, and manzanita brush, are found.
“T. 32 N., R. 5 W., M. D. M. Section 28.
“S. W. 44: The smoke has done but little damage in here to the digger pines. The count of an average acre gave me as follows: 2 pines, 8 inches in diameter, dead. 4 pines, 8 inches in diameter, alive. 4 oaks, 7 inches in diameter, alive. On the south hillside the underbrush is doing well and looks fresh. On the tops of the hills there is some undergrowth left. The pines are mostly dead, but the oak is doing well. In the gullies and gulches everything is in good shape and plenty of new brush is springing up.
[633] “N. W. %: Shows some evidence of smoke. The average acre gave: 3-small pines, dead. 7 pines alive. 1 oak alive. Oak and manzanita brush alive and healthy.
“T. 32 N., R. 5 W., M. D. M. Section 30.
"N. %: The count of an average acre is as follows: 4 bull pine, 6 Inches-in diameter, dead. 8 bull pine, 8 inches in diameter, cut down. Oak doing well and average 5 inches apiece. There is some manzanita and oak brush alive, and plenty of fresh oak and manzanita starting to grow this year.
“S. % : The count of an average acre is as follows: 4 bull pine, 6 inches in diameter, alive. 8 bull pine, 5 inches in diameter, cut down. 5 oaks, 5 inches in diameter, alive. The brush is doing well and plenty of fresh undergrowth is springing up. This section contains 606.81 acres under governmental control. The official survey classified this land as third-rate, rough, and broken, with a growth of pine and oak.
“T. 32 N., R. 5 W., M. D. M. Section 32.
“S. W. %: In this subdivision there is no perceptible damage.
“N. W. % : No perceptible damage; if any, slight.
“N. E. %: A large forest fire has been through this subdivision. The smoke has been -here slightly, but it is hardly noticeable. From the absence of pine snags, I conclude that there never was much timber in this subdivision.”
Lewis T. Wright, a witness on behalf of the appellant company, after testifying that he has been in charge of all of its business in California since the early part of 1897, was questioned and answered as follows:
“Q. Are you familiar with its property and business at Keswick? A. Yes, sir. Q. Do you know the government lands described in the complaint in this action? A. Very generally; yes. Q. You have been over them and seen them frequently? A. Yes, sir. Q. What have you to say with regard to the character of the natural vegetation upon that land? A. The natural vegetation is scrub brush, mostly manzanita, .poison oak, with occasionally valley or digger pine, and some oak. Q. Have there ever been any trees, which were valuable for timber- purposes upon that land during your acquaintance with it? A. Not during my acquaintance with it. Q. Are th,ere any indications that there ever were such trees there? A. No, sir. Q. What is the value of the vegetation upon that land — the commercial value? A. Well, one would be inclined to say nothing. The land was never taken up. Q. I am referring, of course, to its original condition, its value as growing timber, before any injury was done to it by fumes or otherwise. A. Its value as growing timber for lumber purposes would have been nothing. Q. Has it any value as fuel, except what it acquired from the operations of the company? A. I cannot imagine that it would have. Q. What is the nature of the soil? A. Well, the soil — there is hardly any soil. The formation is granite. There is a slight surface of decomposed granite. Q. The vegetation grows in the crevices of the rocks and in this decomposed surface, then? A. Yes, sir. Q. Has the land any value for agricultural purposes naturally — any natural value? A. I think not.
“Q. What is the extent of the mining and smelting operations of the defendant carried on at Keswick and its vicinity? A. Approximately 200,000 tons and upwards of ore per annum. Q. Of copper ore? A. Of copper ore; that is, exclusive of fluxes. Q. Those are limestones and quartz? A. Limestones and quartz. Q. What is the output of metallic copper? A. It varies. Approximately 10,000 tons of copper per annum. It has been more. Q. How many employes earn their livelihood in Shasta county from their employment by the company? A. Some two years ago I found that we employed directly an average — a monthly average — during the year of 1,664 men. Q. Those were employed in the mining and smelting operations of the company? A. In the mining and smelting operations. Q. You own very large deposits of copper sulphide ore in that region? A. Yes, sir. Q. How do these deposits compare in extent with other deposits in California. A. Well, that would be dif[634] fieult to say. It would compare very favorably with some deposits in some regions. On the other hand, there are regions with quite enormous deposits. Q. I will put it this way. How does it compare with the copper deposits which are now being worked in California? Are there other larger deposits than this — more productive? A. I do not think that there are any larger, or larger in the sense of being greater in value. I do not know that. Q. Do you know the extent of the investment of the company there? A. $6,500,000 is the capitalization, or was the original capitalization. The capitalization is now $5,000,000. Q. That represents the money which has been expended in the purchase and development of that property, does it? A. Yes, sir. Q. What is the average disbursement for wages to employes? A. Well, approximately,-between $900,000 and $1,000,000 per annum. Q. In Shasta county? A. In Shasta county. Q. In addition to that you have other large purchases there? A. Yes, sir; the company purchases other ore in the district. Q. What sort of ores does it purchase? A. Almost entirely quartz,.auriferous quartz. Q. What does it do with those quartz ores? A. These quartzes are combined with the copper ores of the company in the smelting operations, and the gold is thereby extracted. Q. What effect have these purchases upon the mining industry of the region? A. Well, I would say that the effect,has been to make the region moderately successful as a quartz-mining region. Q. As a matter of fact, are there mines which are kept open for the .purpose of supplying this company with such fluxes? A. Yes, sir; there are many such. Q. Could those mines be operated as an independent proposition unless there was a smelter there to buy their ore? A. With a very few exceptions, I should say they could not be operated.
“Q. How about the purchase of supplies? Is not a considerable part of the community indirectly supported in that manner by the company? A. Well, the existence of such a large working population naturally has developed and extended the sale of small farm produce, garden truck, poultry, eggs, and things of that kind. Q. And, of course, all domestic supplies, like groceries aud similar articles? A. Domestic supplies and so on; yes.. Q. What was the character of the region at and around Keswick before the company’s plant was installed there? A. It was devoid of life and industry. Q. What is it now? A. It might be classed as an active and prosperous mining community. Q. What is the population of the town of Keswick? A. I can hardly say. I do not know. Q. Whatever it is, it is supported entirely by the smelting operations? A. Entirely supported by the smelting operations. Q. How about the shipments of freight to and from that point by rail? A. They have been very large. Q. Were they very large prior to the erection of the company’s smelters? A. No; there was nothing there. Q. Nothing? A. No, sir. Q. The station at Keswick— A. Was established for the purpose of the operations of the Mountain Copper Company. Q. By what means is the transportation had from the mine to the smelter and to the railroad? A. By means of an independent railroad of some 12 miles in length. Q. That is owned and operated by the Mountain Copper Company? A. Yes, sir; it is the Iron Mountain Railway, operated by the Mountain Copper Company. Q. And used almost exclusively for its business? A. Yes, sir. Q. What effect has the opening of these mines had upon the mineral production of Shasta county? A. It has had quite an enormous effect upon the mineral production. The mineral production of Shasta county used to be round about $600,000 to $800,000 per annum. It jumped up to over $3,500,000. One year the output from the Keswick smelter alone was $4,800,000. Q. Was the difference that you have referred to in Shasta county’s production due to the production of the Mountain Copper Company’s mine? A. Yes, sir; and if the smelters were to cease I believe that the mineral production would fall below what it used to be before the establishment of the smelter. Q. Do you know whether it is contemplated to construct other smelters for copper in Shasta county? A. Well, certain companies who have purchased mines up in that regiou state their intention of starting smelters. Q. Are there deposits of copper ore there besides those owned by the Mountain Copper Company? A. Yes, sir. Q. Would it be practicable to operate a smelter elsewhere in Shasta county with less injury to vegetation than has been caused by the smelter of your com[635] pany? A. That would depend upon the extent and size of the smelter operating; but, broadly speaking, I think I might say that it would be difficult to operate a smelter of a commercial size with less damage. Q. Would there be any place which could be selected in that region where the vegetation would be less liable and less susceptible to injury? A. No, sir; there is not, because that district is not in the timber region. Q. What has been the effect of the output of the Keswick smelter upon the mineral production of Shasta county as compared with other counties in California? A. Shasta county was, I believe, the lowest in rank as a mineral producer. Calaveras and Nevada counties were the banner counties. After the establishment of the Mountain Copper Company, Shasta county took the premier place. Q. When you s?ay it was the lowest, you mean the lowest of those which were classed as mineral producing counties? A. Yes, sir; that is what I mean, because there may be some counties that are not classed as mineral counties. Q. So that, as the direct results of your operations, Shasta county has been raised from the lowest to the highest rank as a mineral producing county in Califorina? A. Yes, sir. Q. Relative to the taxes of the county, how large a share of the burden of taxes is borne by your company? A. I have forgotten that. I know how much we pay, and I know on what assessment we pay. Q. What is your assessment, and what do you pay per annum? A. Our assessment is §1,650,000. and we pay over §33,000 per annum as taxes upon that assessment. Q. That is a very considerable percentage, as much as a sixth or a seventh of the entire taxation of Shasta county, is it not? A. Speaking from memory, I would say it was one-sixth. Q. When were the operations of the Mountain Copper Company in that region begun? A. They were commenced on a small scale in tlie end of 1896, but they were seriously commenced in the beginning of 1897. Q. Have you noticed of late years any change in the area of the region affected by the fumes from the Keswick smelter? A. Yes, sir. Q. What change? A. We noticed that the area affected by the smoke is shrinking in. Q. That there is not so large an area now affected by the fumes as was affected, say, at the time of the filing of -the complaint in this action. A. Very much less. Q. And that is gradually diminishing? A. Yes, sir; it is gradually shrinking in. Q. To what cause do you attribute that change? A. To the cessation of the open heap roasting. Q. What has been substituted for that? A. The .roasting in closed furnaces. Q. That is the method now adopted by the company, closed furnaces? A. Yes, sir. Q. And what disposition is made of the fumes from that roasting? A. The fumes, after the deposition of dust in what are called dust chambers, are put into stacks and issue into the air. Q. What is the height of these stacks? A. One hundred and seventy feet approximately. They vary somewhat. Q. Are there more than one? A. There are four large ones and some minor ones. Q. You have studied, I take it, the course that is ordinarily followed by the fumes after they leave the flues, Mr. Wright. Can you describe what happens to the fumes after they leave the flues? A. Well, the works of the defendant are situated in what is called a canyon; in the Spring Creek canyon. The general fate of the gases is to circulate in this canyon, up and down Spring Creek canyon. Sometimes the gases overflow, or a portion of the gases overflow, from this canyon and proceed beyond. Q. Is that exceptional? A. No, sir; but the more general course of the smoke is up and down the canyon. Q. The greater portion of the fumes, then, are confined to this basin of the canyon? A. Yes, sir; they work up and down this Spring Creek canyon. They work with the sun. Q. What is the specific gravity of carbon dioxide? This is a sulphur dioxide? A. Yes. It is a little more than twice that of air. Q. You can pour sulphur dioxide into a trough, . can you not, and fill the trough and expel the air from it? A. Yes, sir; that can be done. Q. That is a laboratory experiment, is it not? A. Yes. Q. To put burning candles in a trough, and then pour sulphur dioxide into the trough and extinguish the candles? A. Yes, sir. Q. Therefore, except for the stray currents of air and for the overflows, sulphur dioxide, once placed in a basin of this kind, will remain there until it is diffused or decomposed, will it? A. Until it is diffused by winds or air currents. As to decomposition, I have not followed that. Q. Well, it is taken up slowly from the atmosphere, is it not? A. It disappears. Q. Is that attributed to diffusion entirely? A. I imagine so; ultimate diffusion.
[636] “Q. Is there any way, in your opinion, which will he less harmful to vegetation than the one which you have described for disposing of the fumes of the Keswick smelter? A. I have not been able to find any that would be practicable at Keswick. Q. The suggestion has been made by the witnesses for the government that it would be preferable to discharge these fumes from very high stacks, say to build a flue on the summit of one of the bounding hills of this canyon, to lead the fumes by a brick flue into that stack, and discharge it there at a height of perhaps 500 or 600 feet or more above the floor of the valley. What have you to say to such a disposition of the fumes? A. I think that would be distinctly dangerous. Q. For what reason. A. The-area affected is now known; in fact, we know that that area is diminishing notably. If we were to discharge the fumes at a new and a higher point, I feel quite sure, from what .happened in other places, that new areas not affected by smoke would be attacked, that they would be distant ones, and they might be much more valuable than those which have been attacked, and which are in the immediate neighborhood of the smelter. Q. You think it is better to bear the ills we have than fly to others we wot not of? A. I think the remedy would be worse than the disease. Q. What reason have you for thinking-that injury would be done to new areas by taking a new point of dissemination of the fumes? A. I think that new air currents would be reached, and in certain conditions of the atmosphere the fumes would drop. Q. Do you. find that principle laid down by any standard writer on the subject? A. Ves; I have recently examined a new work that has been published by an expert on these industrial gases in Germany, and I find a somewhat similar-case cited-in his book, where a smelter situated in a valley had a very high-chimney attached to it There was a change in the conditions. A large extent of country around on the higher ridges of the valley that had previously been immune then became attacked. The immediate surroundings of the smelter were spared and the vegetation began to flourish, but damage ■ was done all around the rim of this large valley; and it is curious that this author-mentions the fact that this action of the higher chimney had been predicted by a certain authority whom he cites. Q. Who is the author that you refer-to? A. Haselhoff is one of the authors. Q. What is his book to which you refer? A. Haselhoff is one of the authors, and Lindan is a joint author withHaselhoff. Q. What is the book to which you refer? A. In English the title would be ‘Injury to Vegetation through Smoke.’ The book is in German. Q. Is this the book which was mentioned to Prof. Harkins by the United States Attorney in the course of his cross-examination in this matter? A. Yes, sir; that is the book. Q. I assume, therefore, that the volume to which you refer is familiar to the government officials. Will you refer to the page of that book upon which you found this statement which you have mentioned? A. Pages 160 to 163. Q. Have you a transcript of the paragraph there that you have-mentioned? A. I can hardly say that. I have a reference only to the passage. The circumstances were as I stated. There are other cases stated in-that book where high chimneys placed upon ridges, whilst undoubtedly protecting the area immediately adjacent to the chimney, do attack somewhat distant regions. Q. They extend the radius of injury, then? A. That is the-result of a high chimney, that it throws the smoke farther.
“Q. What have you to say regarding the charge in the bill in this action that you have negligently failed to condense the fumes of the smelter before-turning them into the air? A. No smelter is able to condense these fumes. No smelter does it. Q. Is there any American copper smelter which pursues' a course substantially different from yours in reducing its ores? A. We have-never heard of it. Q. Vou would have known of them if there were such instances? A. We should have known of them, and, when we have heard of cases that purported to' offer certain advantages, we have had those cases investigated. Q. There is no condensation known for handling ores of such a quality and character? A. No, sir; not any. Q. What would be the effect upon the industry of copper smelting in America if every smelter were compelled to condense its fumes? A. The industry would have to die for some time. It would have to die until its having been the largest producer of copper in the world was forced to come again into supply, by shortage of copper-[637] from other sources of supply which were not affected by such restrictions. ■Q. In other words, if I understand you, copper could never be produced in America under those conditions until the entire supply of the world elsewhere had been exhausted and it became a matter of no importance what price was charged for copper? A. Yes; that is to say, until the supplies elsewhere in the world had been proved to be insufficient to meet the demand at the increasing price of copper. Q. In other words, at the ruling prices of copper, the condensation of fumes is commercially impossible? A. Quite so.
“Q. It has been suggested that you might set up sulphuric acid works at Keswick in connection with this smelter, and turn the sulphur fumes into that acid. What comments have you to make on that suggestion, Mr. Wright? A. Firstly, the capital outlay required to put such condensation chambers in, in connection with the present smelter, would be a prohibitive outlay. Q. When you speak of the ‘present smelter’ you refer to the quantity smelted? A. Yes, sir. Q. What would be, in all probability, the cost of such acid works? A. It would be approximately half a million dollars for every 100 tons smelted per day. Q. And how many tons of copper are turned out per day? A. The capacity of the works is 1,000 tons of copper (ore) per day, but the average would be about. 600 tons per day. That would make at least an outlay of $3,000,000. Q. From $3,000,000 to $5,000,000? A. Yes, sir; from $3,000,000 to $5,000,000. Q. As the prime cost of the plant alone? A. Yes, sir. That would not be a commercial possibility. Q. How much sulphuric acid would be manufactured from the burning of 600 tons of your ores per diem? A. Well, 700 tons per day. It would depend upon the strength of the acid, but let us say 700 tons per day of such strength as would be manufactured in such a system. Q. Of commercial acid? A. Of commercial acid. Q. Suppose you had your plant there and manufactured your 700 tons a day of sulphuric acid. What disposition could you make of it? A. We could make no disposition of it other than to carry it down by rail to San Francisco, put it into boats, and dump it into the sea. Q. What would be the cost of transporting it to San Francisco, as against the commercial value of the acid in San Francisco? A. The quantity of acid that we are speaking of, 700 tons, is seven or eight times larger than the whole of the industries in San Francisco could take care of. Q. You could not sell it, because there would be no use for it? A. There would be no market for it. Q. What is the commercial ’•‘acid, say of 66° Baume, worth in San Francisco? A. From $15 to $20. Q. A ton? A. Yes, sir. Q. Bess than a cent a pound? A. Yes, sir. Q. Could it be transported from Keswick to San Francisco for that money? A. With the cost of preparation in Keswick and the interest on the outlay; no, sir. Q. I am now referring only to the cost of railway transportation. Could you carry that class of freight from Keswick to San Francisco at a cost of less than a cent a pound? A. Yes, sir; it could be carried for less than that. Q. It is not a desirable article to transport, is it? A. No, sir. Q. It is very difficult to carry, and dangerous? A. It is not considered the safest article in transportation. Q. Could it be disposed of in any way at Keswick? A. No, sir; it could not. Q. Suppose you undertook to store it there, what would happen? A. That would be impracticable. Q. Why? A. Either the storage would have to be enormous, or, if it were stored in ponds or reservoirs made in that soil, the heavy rains in the winter would wash it away and wash it into the drainage system of the country. Q. What would be the consequence of large quantities of such acid getting into the Sacramento river, say? A. That would immediately dispose of all the fish. Q. Would it affect the vessels and wharves and other articles washed by the water? A. I imagine that it would. Q. Is there any mode of combining this acid with other substances so as to give it a commercial return at Keswick? A. No, sir. Q. What is the total consumption of sulphuric acid in California at this time? A. Seventy to eighty tons per day.
“Q. What would be the effect on your business if you were required to turn your fumes into sulphuric acid at Keswick? A. It would be to cause that business to suspend operations. Q. You would have to shut your smelter down and close your mine? A. We should have to shut our smelter down. Q. You could not work your mine without your smelter? A. We should not be able to work our mine unless we could dispose of the ore profitably. That is doubt[638] ful. ' Q. Tour present Industry, as you are carrying it on, would be destroyed? A. It would be destroyed. Q. And you would have to find a market for your ores in some more favored community? A. Tes, sir. Q. Would it be practicable to ship your ores to any great distance? A. No, sir. Q. The values in them would not warrant any extended shipment? A. No, sir. Q. Any distant shipment? A. No, sir; the values would not justify any long transport. Q. Is this a unique condition of affairs at Keswick, or do your answers with regard to the difficulties and impossibilities of disposing of your fumes apply to smelters in general ? A. They apply to smelters in general; not only to copper smelters, but lead and zinc smelters. Q. The attack, then, which the government makes upon your industry, if it should be followed up by a similar attack upon others carrying on the same industry elsewhere, would, if I understand you, result in the destruction of the copper industry of America? A. If it was successful; yes, sir. Q. I am assuming that it would be. A. Tes, sir; it would affect 6,500,000 tons of ore per annum. Q. That is to say, it would destroy that amount of production ? A. Tes, sir; that is so. Q. Something has been said about the sale of pyrites; that is to say, the sale of your sulphide ores from your mines. Is that possible in any large quantity? A. No, sir. Q. There is no market for them? A. There is no market.”
Except in respect to the possibility of so disposing of the fumes generated by the appellant’s operations as to prevent injury to the lands of the complainant described in the bill, we do not find,any contradiction in the record of the foregoing testimony on behalf of the appellant. We have, then, the ownership in the complainant of a little over 4,000 acres of land within the damaged zone, mountainous in character, with little or no soil, practically worthless for agriculture or horticulture, upon which most of such trees and undergrowth as existed had, prior to the commencement of this suit, been killed by the fumes generated by the appellant company (for which it is, of course, liable in damages for whatever they may have been worth), and upon which but little more vegetation of any kind remains, susceptible of destruction. In view of these facts, about which there can b.e no question upon the record, can it be doubted that the maximum injury that can result to the lands of the complainant embraced by the bill is but a mere trifle in comparison to the loss inflicted by the injunction in question upon the appellant company and those dependent upon and benefited by it? And, such being the case, would it be a wise exercise of the sound discretion we are called upon to exercise to sustain such injunction? We are of the opinion that it would not be, and we are not without abundant authority to sustain that position.
No one, we apprehend, will contend that the smelting of copper ores is, in and of itself, unlawful. On the contrary, it has become, one of the most useful and necessary employments, especially since the use of copper, in its manifold forms, has increased so enormously, to the benefit, not only of those actually producing it, but to the state, nation, and world at large. Brickmaking is also a useful and legitimate employment. In considering and deciding a case of that sort Mr. Justice Agnew, in delivering the opinion of the Supreme Court of Pennsylvania, in Huckenstine’s Appeal, 70 Pa. 102, 106 (10 Am. Rep. 669), said:
“It, as many other useful employments do, may produce some discomfort, and even some injury, to those near by. But it does not follow that a chancellor would enjoin therefor. The heat, smoke, arid vapor of a brick kiln can[639] not compare with those of many manufactories carried on in the very heart of such busy cities as Pittsburg and Allegheny. A court, exercising the power of a chancellor, whose arm may fall with crushing force upon the everyday business of men, destroying lawful means of support, and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its aid is not of right, but of grace, and it must be sure that the exercise of this kingly power is just, wise, and proper, before it takes from a citizen his means of livelihood, and destroys the value of his property for legitimate uses.”
In Demarest v. Hardham, 34 N. J. Eq. 469, it was held that relief by injunction to restrain a business in itself lawful is not a matter of right, but rests in discretion. “The court,” said the Vice Chancellor, “is bound to compare consequences. If the fact of an actionable nuisance is clearly established, then the court is bound to consider whether a greater injury will not be done by granting an injunction, and thus destroying a citizen’s property and taking away from him his means of livelihood, than will result from a refusal, and leaving the injured party to his ordinary legal remedy; and if, on thus contrasting consequences, it appears doubtful whether greater injury will not be done by granting than by withholding the injunction, it is the duty of the court to decline to interfere.” And, after citing various American and English cases, he concluded as follows:
“The principle to be deduced from the authorities I understand to be this: That an injunction to restrain a lawful business, on the ground that it is so conducted as to render it a nuisance, should never be granted, except the complainant shows an invasion of a clear legal right, resulting in permanent and serious injury, which cannot be adequately redressed by action at law, and that the allowance of the writ will not inflict upon the defendant a more serious injury than the complainant will sustain if the writ is denied and he be left to his ordinary legal remedy.”
In Tuttle v. Church (C. C.) 53 Fed. 422, an injunction was sought to restrain the defendants from the manufacture of fish oil and fertilizers, on the ground that the smoke and offensive odors from the defendants’ factory blew over the complainants’ dwelling, thereby corrupting the air, destroying the comfortable and convenient use of the premises, and diminishing their value. The defendants employed 450 men in their works, and their plant was valued at $300,000. The complainants’ property cost them, with improvements, $2,750, and they had offered to sell it for $3,500. Other facts are stated in the opinion in the case. Judge Colt, in refusing the injunction sought, said, among other things:
“A motion for an injunction is addressed to the sound discretion of the court, guided by certain established rules. This means that the court is to consider all the circumstances of each case before it will exercise this extra- . ordinary remedy. Among the considerations which should influence a chancellor is the relative effect upon the parties of granting or refusing the injunction. Unless the public good calls for the injunction to issue, it should not be granted, where a large number of people are in favor of the acts to be restrained, and no serious damage to individuals is made to appear. Where the right at law is doubtful, the case resolves itself into a question of comparative injury — whether the defendants will be more injured by the injunction being granted, or the plaintiffs by its being withheld. In the present case the effect of an injunction, according to the evidence, will be . to close the defendants’ [640] works, destroy their business, and thereby cause the loss of a large amount of invested capital, while the injury to the plaintiffs if the injunction is refused, is comparatively slight.” — citing a number of cases.
The nuisance complained of in Powell v. Bentley & Gerwig Furniture Co. (W. Va.) 12 S. E. 1085, 12 L. R. A. 53, was the noise of the factory. The court there said:
. “Although a court of equity in such cases follows precedent, and goes by rule as far as it can, yet it follows its own rules — and among them is the one that to abate or restrain in case of nuisance is not a matter of strict right, but of orderly and reasonable discretion, according to the right of the particular case— and hence will refuse relief and send the party to a court of law when damages would be a fairer approximation to common justice, because to silence a useful and costly factory is often a matter of serious moment to the state and town, as well as to the owner.”
Indeed, that the comparative convenience or inconvenience to the parties from the granting or withholding the injunction sought should be considered, and that none should be granted whenever it would •operate oppressively or inequitably, or contrary to the real justice ■of the case, is the well-established doctrine, and we need hardly multiply authorities to that effect. Amelia Milling Co. v. Tennessee Goal Co. (C. C.) 123 Fed. 811; Sellers v. Parvis (C. C.) 30 Fed. 166; Peterson v. City of Santa Rosa, 119 Cal. 391, 51 Pac. 557; 1 Spelling on Injunctions, § 417; 2 Story’s Eq. Jur. § 959; Kerr on Injunctions, 231.
In Madison v. Ducktown Sulphur, Copper & Iron Co. (Tenn.) 83 S. W. 658, it appeared that several farmers had brought suit to enjoin the operation of a copper smelting plant because of injury to their lands by the fumes. The plant was in a basin of the mountains. The complainants’ farms were in the surrounding hills, and were far more seriously injured than have been the lands of the United States involved in the present case; for they had timber and crops which were practically destroyed. In that case it was found that the defendant company was conducting its business in a lawful way, without any purpose to injure any of the complainants, and was following the only known method by which copper smelting could be successfully carried on, but was unable to dispose of the sulphurous fumes, and that there was no more remote place to which its operations could be transferred; that the defendant employed about 2,500 men in its works, supporting about 12,000 people, whereas, before the commencement of their operations, the population of the vicinity did not exceed 200; that the company paid to its employes about $1,000,000 annually for wages, and paid about one-half of the taxes of the county in which its property was situated, besides paying out a large amount for supplies; that if the injunction sought were granted the defendant company would be compelled to stop the operation of its plant and its property would become valueless. The facts in that case, which arose in Tennessee, were, therefore, strikingly similar to those in the case at bar, except for the important difference that there the complainants were actual resident proprietors, who had suffered serious pecuniary loss. The Supreme Court of Tennessee declared that the controlling principle in such cases is—
[641] “That the granting of an injunction is not a matter of absolute right, but rests in the sound discretion of the court, to be determined on a consideraion of all of the special circumstances of each case, and the situation and surroundings of the parties with a view to effect the ends of justice. A judgment for damages in this class of cases is a matter of absolute right, where injury is shown. A decree for an injunction is a matter of sound legal discretion, to be granted or withheld as that discretion shall dictate, after a full and careful consideration of every element appertaining to the injury.”
And, after citing numerous' authorities in support of that principle, thus applied it to the case then before the court:
“The question now to be considered is, what is the proper exercise of discretion, under the facts appearing In the present case? Shall the complainants be granted, in the way of damages, the full measure of relief to which their injuries entitle them, or shall we go further, and grant their request to blot out two great mining and manufacturing enterprises, destroy half of the taxable values of a county, and drive more than 10,000 people from their homes? We think there can be no doubt as to what the true answer to this question should be. In order to protect by injunction several small tracts of land, aggregating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufacturing enterprises that are engaged in work of very great importance, not only to their owners, but to the state, and to the whole country as well, and to depopulate a large town, and deprive thousands of working people of their homes and livelihood, and scatter them broadcast. The result would be practically a confiscation of the property of the defendants for the benefit of the complainants — an appropriation without compensation. The defendants cannot reduce their ores in a manner different from that they are now employing, and there is no more remote place to which they can remove. The decree asked for would deprive them of all their rights. We appreciate the argument based upon the fact that the homes of the complainants who live on the small tracts of land referred to are not so comfortable and useful to their owners as they were before they were affected by the smoke complained of, and we are deeply sensible of the truth of the proposition that no man is entitled to any more rights than another on the ground that he has or owns more property than that other. But in a case of conflicting rights, where neither party can enjoy his own without in some measure restricting the liberty of the other in the use of the property, the law must make the best arrangement it can between the contending parties, with a view to preserving to each one the largest measure of liberty possible under the circumstances. We see no escape from the conclusion in the present case that the only proper decree is to allow the complainants a reference for the ascertainment of damages, and that the injunction must be denied to them, except in the qualified manner” indicated
It is, we think, an entire mistake to say that the Ducktown Case can be distinguished from the present one because of the statute of Tennessee approved April 17, 1901 (Laws 1901, p. 246, c. 139), providing that, in all suits brought for the recovery of damages resulting from any nuisance, the court, exercising a sound discretion, may, upon finding that the matter complained of is a nuisance, immediately upon petition of the complainant, order or decline to order the nuisance to be abated. The Supreme Court of Tennessee set out in its opinion that statute in full, as well as section 3403 of the Code of the state of 1858, of which the act of April 17, 1901, was amendatory, and said that:
“The remedy by petition granted in section 3403, Code 1858, in an action at law, is in all respects equivalent to the remedy by injunction in equity, and, further, that the only difference is that in the first action the principal object of the suit is the recovery of damages, with the final injunction or abating order as supplementary or additional relief, while in the second the obtain[642] Ing of the injunction is the principal relief sought, and the recovery of damages is supplementary to or additional thereto. In other words, by the section of the Code above quoted the two courts were put upon a substantial parity in dealing with nuisances, in respect of the granting of final relief in such cases. It is observed that in section 3403, Code 1858, courts of law, abating nuisances, are required to proceed ‘upon petition of plaintiff in writing, in the same manner and to the same extent as the chancery court, without resort to a court of equity for that purpose.’ The petition in such a case is the exact equivalent of a bill in equity. It cannot be doubted, therefore, that although the amending acts above copied purport, in terms, to apply only to suits brought for the recovery of damages resulting from nuisances, the purpose was to declare the legislative will in respect of the use of the injunctive power in nuisance cases, when sought to be used in effécting final relief, and to ordain that in administering this relief the court should exercise a sound discretion, and either ‘order or decline to order the nuisance to be abated,’ as such sound discretion should dictate. This act must be regarded as declaring the policy of the state upon the subject referred to. It is perceived from the caption that the Legislature had in view the public utility of enterprises attacked on the ground of nuisance, and authorized the court to grant or withhold the injunction, as a wise discretion might suggest or warn.”
In other words, the Tennessee statute conferred upon the court in an action for damages the precise power vested in it, when sitting as a court of equity, by the established principles of equity to which reference has already been made.
In the case before us the land of the complainant within the damaged zone is, according to the evidence, not timber land, and is practically worthless for agricultural and horticultural purposes, for the reason that it has little or no soil. Most of such trees and underbrush that has stood thereon had been killed prior to the beginning of this suit; and such vegetation as then remained was of very small value. The testimony in respect to the lack of value in this land of the complainant is corroborated by the circumstance that, although it is in close proximity to the railroad connecting the cities of San Francisco and Portland, and but' a comparatively short distance from the towns of Redding and Shasta, yet no purchaser seems to have taken any of it at the government price of $1.25 per acre, though it has been open to purchasers for about 50 years, nor did a single homesteader, so far as appears, ever settle upon any of it during all of the years it was offered by the government as a gift to such settlers.
But one other phase of the case need, we think, be alluded to, and that is respecting the possibility of the appellant’s so disposing of the fumes generated by its operations as to prevent any injury to this land of the appellee. That it is possible to convert the sulphur fumes into sulphuric acid is, of course, conceded; but that it is wholly impracticable to do so, by reason of the enormous quantity of such acid that would thus be produced, the enormous cost of such production, and the impossibility of disposing of such product, is clearly shown, not only by the testimony of the appellant’s witness Wright, but by that of the appellee’s witness Price, as well. The testimony of the latter witness, it is true, is also to the effect that the damage necessarily resulting from the fumes generated by the appellant’s operations could be very much ameliorated by the use of such flues arid stacks as have been constructed at the Washoe smelter, Anaconda, Mont. But it appears from the testimony on the part of appellant [643] and appellee that the main purpose of the flues and stacks so constructed at the Washoe smelter was the collection of the arsenic and antimony in the ores there, neither of which ingredients is present in the ores worked by the appellant. The appellee’s expert witness, Vigeon, who was familiar with the works at Anaconda, himself testified that he could not say whether less sulphur dioxide escaped from that smelter after than before the settling chambers were put in; and the testimony of the witness Parsons, also an expert upon the subject, and of Wright, as to the effect that the construction of such flues and stacks as they have at Anaconda by the appellant would have, is that it would rather tend to enhance than to reduce the damage, in that the sulphurous fumes would thereby be carried into the higher atmosphere and, by the air currents, into new and more extended fields of damage.
For the reasons stated, the judgment is reversed, and the cause remanded, with directions to the court below to dismiss the bill.
142 F. 625 (Mountain Copper Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.