Threatt v. Brewer Mining Co.

26 S.E. 970, 49 S.C. 95, 1897 S.C. LEXIS 139

• Court: Supreme Court of South Carolina
• Decided: March 31, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

Miles Threatt, in the year 1861, settled upon a farm of ninety-eight acres of laud, in the county of Chesterfield, in this State. He was a farmer, and by his efforts and skill he was enabled to support and rear a large family. Much of his dependence for raising corn and other grain was upon a piece of thirty-five or forty acres of bottom land lying on Fork Creek, near its mouth in Lynch’s River. In the year 1890, his crops were not sensibly injured, but in the years 1891 and 1892, his 'crops were ruined, and these results he attributed to the operations of the defendant, the Brewer Mining Company, in extracting gold from the ore on the lands of said company, whose mill for that purpose was located upon what is known as Little Fork Creek, which emptied itself into Fork Creek just above the lands of plaintiff. His complaint was as follows (omitting its formal parts): “1. That he is informed and believes that the said defendant is a corporation duly chartered under and by virtue of the general laws of the State of New York, regulating the granting of such charters, and having a place of business and office, under the control and management óf Emanuel Motz, as its general manager and agent, in the township of Jefferson, in the county of Chesterfield and State of South Carolina. 2. That the defendant is engaged in digging and mining gold ore at what is known as the Brewer Mine, on Little Fork Creek, a tributary of Lynch’s River, and within a short distance of its mouth, where it empties into said river, in said township, and in extracting gold therefrom by various processes, in which large quantities of water and chemicals, consisting of deleterious substances, the exact nature and character of which are unknown to the plaintiff, are used and employed. 3. That said Brewer Mine consists of a large tract or extent of land, elevated to mountainous proportions, lying on said Little Fork Creek, bounded by lands of plaintiff and others, particularly bordering upon the northern side of plaintiff’s lands and lying above them on said creek, so that the natural and necessary flow of said waters from said mine is along the lands of the plaintiff, through said creek to said river, plaintiff’s said lands consisting of a tract of ninety-eight acres, through which said creek runs, lying below said Brewer Mine, and being bounded by said creek, by Lynch’s River aforesaid, by lands of the estate of J. N. Jowers, of George W. Threatt, and by said Brewer Mine lands, and being the same whereon the plaintiff with his family resides, and is engaged in the business of agriculture. 4. That along said Little Fork Creek, after its union with another small stream known as Big Fork Creek, forming the • stream aforesaid, which flows continually from said B.rewer Mine along plaintiff’s land to said river, the plaintiff has large bottoms, to wit: about thirty-five acres, a part of his tract aforesaid, which are most fertile, being yearly enriched by the freshets from said creeks, and yielding large crops of grain and other produce, affording plaintiff’s chief income and support of himself aud family. That plaintiff has been continuously in possession of said lands for more than thirty years, and has a good legal title to the same, and has enjoyed uninterruptedly for the whole time (except as hereinafter stated) the privileges of water for his stock, and other purposes, of taking fish from the creek aforesaid, of draining his lands into said creek by means of ditches, of having said bottoms enriched by the freshets and eddy waters thrown back on said creek by freshets in Lynch’s River aforesaid, which deposited large quantities of vegetable and fertilizing material upon the same, and, in addition thereto, the plaintiff has for the same time enjoyed the use of two neighborhood roads, long since established by prescriptive right, with good, safe, and convenient fords across said creek, and has for the same time been in the enjoyment of his home upon said lands. 5. That here lately the defendant has put in large machinery, and is digging and pulverizing large quantities of the ore aforesaid, and washing from it the free gold by means of large quantities and sluices of water and certain deleterious chemicals, the names of which are unknown to the plaintiff, and has, since the first day of September, 1892, put in extensive machinery for roasting the concentrates or pulverized rock, and dissolving the same by what is known as the chlorinating processs, in which large quantities of deleterious chemicals and substances are employed and used, the exact name and nature of which, are to the plaintiff unknown — all of which waters and chemicals and the detritus and tailings from the said ore are turned by defendant into said creek, and the settlings from the same are deposited along the channel of the same in such quantities as to almost fill the said channel from the said mine to the mouth, where it empties into Lynch's River aforesaid; and at each recurring swell in said creek, caused by the rains which constantly fall, the said detritus or tailings, laden with the aforesaid deleterious chemicals and substances, is carried from the said channel, by the waters which overflow the same, into the fields and bottoms of the plaintiff, and deposited over the same in quantities averaging from one inch to two feet deep; and such deposits, together with the water tainted with the chemicals and substances aforesaid, have proved destructive to part of plaintiff’s said bottoms, and are fast encroaching upon the remainder, so that a part of their fertility^ has already been totally destroyed to such an extent that no vegetation will grow in the same, and no crop, therefore, can be produced therefrom, and the remainder is fast failing with each recurring swell or freshet in said creek. That about eight acres of said rich bottoms have thus, by the said defendant’s injury to the same, been wholly destroyed, in so far as the purposes of agriculture are concerned, and unless the defendant be restrained from further injury to them, the rest of said bottoms will soon likewsse be destroyed. That by the said defendant’s unlawful flooding of the stream aforesaid, in the manner aforesaid, the waters thereof have been poisoned and injured so that plaintiff’s stock cannot drink the same, and the fish have thereby been killed or driven from the said creek as plaintiff cannot catch any therein. The plaintiff’s said roads have been obstructed and interfered with by the deposits therein of the said detritus or tailings, and at each swell or freshet the said fords become impassable, and the accumulations of said detritus or tailings are so deep that it has to be removed before communication across said stream can be effected, and the sickening stench that arises from the same on account of said chemicals and substances renders the atmosphere unpleasant and offensive, and, as plaintiff believes, unwholesome to plaintiff and his family and neighbors passing the same. A single freshet will fill plaintiff’s said ditches with the said detritus or tailings cast into said creek by defendant, and plaintiff opens them or cuts more but to see the same repeated at each recurring freshet in said creek. The noxious effluvia engendered and set free in the atmosphere by the said roasting process by the defendant, at times fill plaintiff’s dwelling, along with the fumes from the burning sulphurates, and makes his - home unpleasant to himself and family, and the plaintiff believes that the same will, ere long, prove unwholesome and deleterious to the health of himself and family, unless this Court shall enjoin and restrain the said defendant from further operating its mill and machinery in the said processes. That plaintiff, by reason of the aforesaid acts of the defendant, by which a nuisance has been created to the land, property, habitation, privileges, rights, and easements of the plaintiff, has been damaged in the sum of $1,900, and his damages are constantly increasing by the continuous nature of the said acts of the defendant, and the results of the same; and the defendant is threatening not only to continue said acts and injuries, but also to increase the capacity of its machinery, whereby the detriment of the plaintiff will be greatly aggravated and increased. That plaintiff's damages are irreparable, his property is being destroyed, and the encroachments upon plaintiff’s rights are continuous and increasing. 6. That plaintiff is advised and believes that his legal remedies against the defendant are wholly inadequate to obtain for him compensation for the great injuries he has suffered, and continues to suffer, from said acts of the defendant, and that this honorable Court only can afford him the protection needed by the exercise of its injunction or restraining power. Whereupon plaintiff demands judgment: 1. That the defendant, its agents and servants, be restrained and enjoined from further letting loose or emptying the water, chemicals, and detritus or tailings from its mill into said Little Fork Creek, so that the same may be entirely free from the same, and have only the flow of the water therein which naturally belongs thereto, and that said defendant be further enjoined and restrained from operating the roasting process at said mill, whereby the fumes aforesaid are allowed to escape and befoul the atmosphere, and make it unpleasant and unwholesome to the plaintiff and his family and servants. 2. That the defendant pay to the plaintiff the sum of $1,900 damages. 3. For such other and further relief as may be just.”

This complaint, together with a summons, was served upon the defendant on the 4th day of May, 1893, and the amended answer of defendant was served o.n the 8th day of June, 1893. The effect of the answer, without repeating its language, was to admit that the defendant was a corporation, as alleged in the complaint, but coupled with a specific denial of each fact set out in the complaint, as its first defense. The second defense put in issue plaintiff’s title to the land claimed by him. Its third defense alleged that plaintiff had adequate remedy at law. Its fourth defense consisted in alleging an easement to empty the tailings, detritus, and refuse matter from its mil-1 into Little Fork Creek.

On the 3d day of August, 1895, the defendant served upon the plaintiff the following notice: “Please take notice that the attorneys for the defense will move, on the call of this cause, for an order requiring you to elect on which cause of action you will rely in this case, on the ground that you have stated several distinct alleged causes of action all together in one paragraph of the said complaint.

The cause was called for trial before his Honor, Judge Watts, at a special term of the Court of Common Pleas for Chesterfield County, in January, 1896. The motion above noticed was called up and heard, resulting in a refusal by the Judge to grant the same. The legal issues were then tried before his Honor and a jur)'-. The verdict was for the plaintiff, in the sum of $1,000. Afterwards a decree was pronounced granting a perpetual injunction. The defendant has appealed to this Court, on seventy-two grounds of exception. The decree and the grounds of appeal will be reported.

1 The first and second grounds of appeal are intended to allege error in the refusal of the Circuit Judge to grant defendant’s motion to require the plaintiff to elect which one of the several causes of action set out in the complaint he would go to trial upon. No doubt exists that the Circuit Judge met this issue squarely; he decided that the complaint stated but one cause of action. Was this error? We have reproduced the entire complaint herein, so that its terms may be seen when we pass upon this issue, and this inspection clearly shows that the complaint was drawn to present but a single cause of action. The decisions of our courts in giving effect to that section of the Code of - Procedure which authorizes a complaint to have two or more causes united therein, are too emphatic in requiring that each cause of action shall be stated so that it is complete in itself, without the power to draw to the support of its weakness or deficiency in statement anything from a different cause of action, to have the same overlooked by a pleader of any experience. However, the intention of the pleader will not govern. After all, it resolves itself into a question of what the complaint actually alleges, whether it was one or several causes of action. Great care must always be observed to grasp the question, what right of the plaintiff has the defendant invaded? No doubt the profession will recall what obtained in the practice before the case of Holland v. Kemp, 27 S. C., 623, where a man held several notes given by a particular individual; each note was complained upon as a separate cause of action; but in the case just cited it was held that the three notes sued upon by plaintiff really constituted a single cause of action. Likewise, in the case of Latimer v. Sullivan, 30 S. C., 111, where the plaintiff had sued upon seven notes, the defendant insisted that the causes of action (treating each note as a cause of action) were insufficiently stated; but this Court held that such was not the case;' that there was but one cause of action involved in the suit for the collection of these seven notes; each note was an item going to make up the cause of action. This may illustrate the case at bar. What the plaintiff in the case at bar really seeks is to prevent the defendaut, through its milling operations, from invading his right of property. The injury to his bottom land is one element in this invasion of his right of property; the injury to his right to water his stock in the stream is another element; the injury to pure air at his home is another element; the injury to his fishing privilege in such stream is another element; the injury to the two neighborhood roads is another element; the injury to his ditches another element; and the injury to the air he breathes while in his bottom lands is another element. All these elements enter in to complete the alleged wrong to plaintiff by this defendant through his milling operations. The Circuit Judge evidently took this view of the complaint when he overruled this objection to it. We take the same view of this matter, and, therefore/overrule these two exceptions.

2 The next group of exceptions, being 3, 4, 13, 17, 40, 41, 48, and 51, relate to objections to testimony as to the injury done to the fish in the Fork Creek, as well as objections to the charge of his Honor on the subject of such alleged injury to the fish. We may be permitted to remark, that this matter of fish, so far as this testimony is concerned, is almost too trifling to be noticed. The plaintiff ' himself has never tried to catch a fish in this stream from 1890 to the present time, and he never saw any one else try to do so, except possibly a little boy at one time. It could not have entered into the verdict of the jury. Still, we must answer the question as to whether the plaintiff was entitled to have the stream, while running on his land, freed from refuse matter, placed in the same by defendant, that would either kill fish or cause them to stay out of the stream. We think he would have the right to force the defendant to avoid defiling the waters in such stream. Grant that he can have no property in such fish as swim in the waters, yet he has the right to have defiling matter, that will prevent fish swimming in waters running over his lands, from entering therein. Fish were accustomed to come in that stream until the year 1890, when this deleterious matter, placed in the stream by the defendant, drove them out and away, and it was an element of injury to the plaintiff. Certainly he could prove such a fact to show that the waters of the stream running over his lands had been defiled by the refuse matter discharged from defendant’s milling operations. It was not competent for the defendant to show in this case by testimony of witnesses that they had seen fish in the stream after this suit was brought, for the reason that such an issue was not before the Court.

3 We will now dispose of the 16th and 17th exceptions. Frror here alleged is that the Circuit Judge, in his charge to the jury, directed them that they need not consider the easement set up in the answer of defendant, whereby he' claimed that having dumped its tailings in Tittle Fork Creek for twenty years, such right •was one by prescription. We have searched the “Case” to find if there was testimony bearing upon this alleged right of the defendant. There is no such testimony there. Hence the Judge was not in error in his charge to the jury.

4 We will next examine exceptions 5, 6, 7, 8, 9,10,11,12, 39, 54, and 55, relating to the two neighborhood roads, which the complaint alleged the plaintiff had the right to use by prescription. Neighborhood roads are public roads. Public roads, when interfered with by a private person — including a corporation — subject the offender to indictment. Any private person who expects to make another responsible to him in damages for any interference with such public road must allege that such injury is a special injury to him. The plaintiff did not so allege in his complaint. Its language referring to those neighborhood roads is in paragraph 4: “And in addition thereto, the plaintiff has for the same time” (over thirty years) “enjoyed the use of two neighborhood roads, long since established by prescriptive right, with good, safe, and convenient fords across said creek;” and in paragraph 5: * * * “The plaintiff’s said roads have been obstructed and interfered with by the deposits therein of the said detritus or tailings. At each swell or freshet the said fords become impassable, and the detritus or tailings are so deep that it has to be removed before communication across said stream can be effected.” • Now, it must be apparent that every other person who was compelled or desired to cross at such fords had the same interest in the removal of such deposits as did the plaintiff; he has not alleged in his complaint any special injury to himself therefrom. It seems to us, therefore, that when the testimony was offered by the plaintiff, and it was objected to by the defendant, on the ground that it was not competent to prove the same on the grounds above set forth, that the Circuit Judge should have treated such objection in the light of a demurrer to that part of the complaint, because it failed to state facts sufficient to constitute a cause of action, as was done in the case of Wilks v. Walker, 22 S. C., 108. The writer of this opinion must be allowed to say, that while he recognizes the law there decided as good law, he has always felt that the manner or way in which the question of demurrer was raised has not commended itself to him as good practice. Another decision of this Court has since upheld the method there adopted, and under the law I bow with great respect thereto and am’ firmly bound thereby. This matter was squarely presented to the Circuit Judge — Judge Watts — and he refused to give the benefit of the law to the defendant. This itself is reversible error. The authorities in our State upholding our views in the matter of these neighborhood roads will be found to be Carey v. Brooks, 1 Hill, 365; Steamboat Co. v. Railroad Co., 30 S. C., 539; Steamboat Co. v. Railroad Co., 46 S. C., 327.

5 We will next consider those exceptions relating to the different questions raised as to the damages to plaintiff’s lands as set out in the 18, 19, 20, 21, 22, 23, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 42, 44, 45, 47, 49, 50, 52, 56, 57, 58, 59 grounds of appeal. We deem it best to premise our disposition of the several questions raised by these exceptions by some observations in relation to these alleged injuries to plaintiff’s right of property by the methods adopted by the defendant in obtaining gold from the ore mined on its lands. The testimony of two of defendant’s witnesses furnish this information, Mr. Motz and Mr. McNulty. It seems that what is known as the Brewer Gold Mine has existed as such for many years. At first the old methods, simple in themselves and harmless to others, were employed for this purpose, but in 1879, a firm, composed of Capt. Motz and his partner, a Mr. Chat-ard, adopted for this purpose what is called by the parties as the hydraulicing method, and in this plan a stream of water was driven by steam through a pipe upon the soil itself with such power as to loosen all tbe earth to the rock below it. This required a goodly stream of water, and loosened all the soil above the rocky formation ranging from three to thirty feet. In this way the soil covering-some thirty-five acres was removed. Of course, when the gold in this soil thus removed was extracted, the tailings, as they are called, were let loose down what they call Bull Gulch, which emptied into Little Fork Creek; but to prevent this going into said creek, dams five or six in number, made of poles and brush, were constructed, which prevented much of these tailings going at once into this creek. These dams, it is claimed, from the wear and tear of time, are gradually giving way, and as a consequence the refuse matter is gradually going into the creek. But in the year 1886— early in that year — Capt. Ephraim Motz, having purchased his partner’s interest in 1883, began the erection of works away from the Bull Gulch, and erected and used what is known to miners as “stamps,” five in number. These stamps are heavy iron pestles, so to speak, operating very rapidly, and by their weight, and force imparted by steam pressure, crush into small particles any ore placed beneath them. As Mr. Motz says, this was an experiment on his part to demonstrate the value of this process as applied to the ore taken from this mine in obtaining gold in good quality, so that a company could be formed to operate in this territory. It was successful, so that a company known as the Brewer Mining Company was organized in the city of New York for this purpose. The operations of this company consisted in the erection of a mill with forty stamps, on the creek — Tittle Fork Creek — opening a tunnel, and sinking a shaft into the old Stockton quarry. On the 8th day of May, 1890, the present mill began operations. This mill ran day and night, and used each day of twenty-four hours 160 tons of Ore, and this ore,' by means of the forty stamps, was reduced so fine that it could pass through a wire screen having 1,600 holes to the square inch. In the year 189.2, what was known as the chlorinating process was introduced into this mill’s operations. This process is used about as follows: The concentrates are first roasted, so as to be freed from sulphur; then the pulp that is left after the sul-phur is eliminated is placed in an iron barrel, lead lined, made air tight, and into that barrel, in addition to the pulp before spoken of, is placed a certain quantity of water, a certain quantity of commercially pure sulphuric acid, and a certain quantity of lime, for the chlorine it contains. The chlorine takes up all the particles of gold that is held in the “pulp.” After this process, the contents of the iron barrel are dumped into a filter bed, and the chlorinate is washed with water to get the gold. The chlorine is diluted with water before it is allowed to go off into the stream. There is also found here sulphate of lime — commonly known as land plaster or gypsum. The sulphurics escaping from the chimney at the works, when it comes into contact with the air, by reuniting with the water in the atmosphere, becomes sulphuric acid, and weighing, as it does, more than air, is generally precipitated to the earth. To recur to the case at bar, there is then turned into this Little Fork Creek 160 tons of this pulverized ore, and also the waters used in the factory tinctured with chlorine, and carrying along with it, as practically insoluble, all the gypsum which has been formed. Hence, when the stream, Fork Creek, overflows its banks, it throws this chlorinated water and this gypsum on the banks or on the lands it overflows. This is increased when Lynch’s River rises to the point that it practically dams up the streams that flow into it. By these means these tailings from the mill are thrown in large quantities upon plaintiff’s lands. Hence his lands have lost their fertility, and the ditches are filled after every rise and freshet, which causes Fork Creek to overflow its banks. It makes no difference that there may be some sand upon the lands, but if these tailings thrown upon Mi'. Threatt’s lands haye ruined it for agricultural purposes, by being scattered over eight acres thereof, so that nothing will grow thereon, and also that his ditches are so often filled that his other lands included in his bottoms are rendered unfit for cultivation, of course this defendant should pay the damages thereby occasioned him. The defendant, through its superintendent, recognizes the fact that he was injuring the plaintiff, as witness his anxiety to buy his land, or to settle the damages by conveying to him additional lands in settlement of such injuries, ^specially to Mr. Motz’s credit, it should be stated that he wished the plaintiff to authorize him to build a dam to catch these tailings;, but the plaintiff would not authorize this to be done. Of course, the defendant is only responsible for the damages it causes, and so we understand the Circuit Judge to have ruled; but this plaintiff is entitled to have the defendant to pay him damages for thus ruining, for the time, at any rate, of his fertile bottoms. In the measure of the damages to , the plaintiff for the injuries to his thirty-five acres of bottom lands, the jury should be limited, in ascertaining his damages, to the difference in the value of the lands from 8th May, 1890, to the date plaintiff brought his suit. But inthe assessment of his damages from having a tainted— bad smelling — deposit thrown upon his bottom lands and in his ditches, they (the jury) are not limited to the actual injury in the market value of those lands from 8th May, 1890, to the date in May, 1893, when the suit was brought; but they may find a reasonable, just compensation by way of damages to the plaintiff for this matter. This deposit has a threefold injury — first, it destroys the fertility of the lands; second, by filling up the ditches, it causes water to stand upon other parts of the land; and, third, the deposits exhale noxious odors. For the first and second injuries, the verdict must be limited to the depreciation in the market value caused by the deposits from 8th May, 1890, to May, 1893. As to the third, the jury must estimate in dollars and cents what the bad odors from these deposits, between the same dates, may have damaged the plaintiff, if any such damage has occurred. But, of course, damages from every quarter to the plaintiff, as set out in his complaint and proved by the testimony, must not exceed the amount — $1,900—‘•claimed in the complaint.

6 Next, as to the fumes wafted from defendant’s works to plaintiff’s dwelling, according to the testimony, for the plaintiff so testified, this was an inconvenience felt only once. We do not think it worth while to bestow any pains upon consideration of such a question. At a distance of a mile or a mile and a half from the plaintiff’s residence, the gases from the defendant’s chimney, being merely sulphurous, could scarcely have worked- any material injury. This was a matter for the proof, however. Our only right to consider the testimony in this case comes from the fact that in one respect it was a case in equity as well as at law; in the class of cases that are equitable we can consider the testimony, while in cases in law we cannot.

7 Lastly, as to those grounds of appeal which imputes error to the Judge sitting as a Chancellor. We will frankly state that if there had not been reversible error in the trial on the law side, we would not have considered that the Judge erred in the matter of jurisdiction on the equity side of the court. Under the statements in the “Case,” presented for the hearing of this appeal, it seems to us that the Circuit Judge was right. The defendant did not set up any equitable defense in its answer. The scope of the complaint clearly shows that the aid of equity was only invoked to prevent the recurrence from day to day of the injuries from which, up to the filing of the complaint, he asked damages. This is a good ground for equity to interpose for plaintiff’s protection, if a jury have established the existence of the nuisance, as the jury did in this case. We will remark, however, thac we have not gone in this opinion into all the matters mentioned in the exceptions, after we became satisfied that there was reversible error, as fully as we might, because the same questions may not occur again — we mean at the next trial.

It is the judgment of this Court, that the judgment and decree appealed from be reversed, and that the cause be remitted to the Circuit Court for the purpose of a new trial.