Bliss v. Washoe Copper Co.

186 F. 789 | 9th Cir. | 1911

ROSS, Circuit Judge

(after stating the facts as above). [1] The enormous record in the case, consisting as it does of about 25,000 printed pages, renders it wholly impracticable to review the evidence in detail. We have, however, given the record the careful consideration the importance of the case demands and deserves. Upon every essential point relied upon by the complainant the evidence is conflicting in the extreme sense. We regret that it is not practicable to set forth examples of this, and, indeed, undertook to do so, but found that it could not be done with any reasonable limit to the opinion. We shall •therefore confine ourselves to a brief statement of the reasons upon which we base our judgment. While there is much evidence on behalf of the complainant tending to sustain his allegations in respect to the damage done to his land and stock by emanations from the defendants’ smelter, as well as to that of many farmers within that, portion of Deer Lodge Valley referred to as the “Smoke Zone,” and as to the alleged continuing and destructive effect of such emanations, there is also a large amount of testimony and other evidence tending to show that since the remodeling of the Washoe Smelter, in 1903, no appreciable damage has been done by its operations either to the land or stock of the complainant, or.to that of the farmers within the zone in question. Under such circumstances, we do not think an appellate court can be reasonably expected to reverse the findings of fact made by the trial judge, substantially confirming those made by the standing master of the court, who had the benefit of seeing the witnesses on the stand, and especially when both the master and the judge had the benefit of a personal view of the premises.

In Crawford v. Neal, 144 U. S. 585-596, 12 Sup. Ct. 759, 762 (36 L. Ed. 552) the Supreme Court said:

“The causé was referred to a master to take testimony therein, ‘and to report to this court his findings of fact and his conclusions of law thereon.’ This lie did, and the court, after a review of the evidence, concurred in his findings and conclusions. Clearly, then, they are to be taken as presumptively correct, and unless some obvious error has intervened in the application ol’ the law, or some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand.”

To the same effect are the cases of Camden v. Stuart, 144 U. S. 104, 12 Sup. Ct. 585, 36 L. Ed. 363; Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Evans v. State Bank, 141 U. S. 107, 11 Sup. Ct. 885, 35 L. Ed. 654; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821, 36 L. Ed. 649; Davis v. Schwartz, 153 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289. Especially should this rule he adhered to where, as in the present case, the trial judge, as well as the master, had the benefit of a personal inspection of the premises. McCarthy v. Bunker Hill & Sullivan Mining Co., 164 Fed. 927-940, 92 C. C. A. 259.

.The fairness of the trial judge, as well as of the master, in the trial and decision of the case, is vigorously challenged by the counsel for the appellant, and they urge upon us to protect the farmers in their homes and rights against what they assert to be the wrongs and oppressions of wealthy mining corporations. This court is always ready and willing to do that in all proper cases. The writer is himself a farmer, and has been for more than 40 years; but the fact must be recognized that there are two sides to almost every case — certainly there are two sides to this one — both of which must be carefully considered in order to reach a just result. That, we think from the record, was carefully and impartially done by the learned judge of the court below, as shown by his opinion rendered in the cause. There is nothing in the record tending to show any unfairness either on his part or on the part of the master, and, regarding the former, his fairmind-edness and high personal character are well known to us from association with him while he was upon the federal bench in this circuit. The record shows that so anxious was the trial judge to do exact justice between the parties, that after announcing his conclusion that the injunction should be denied, thinking it might be possible for the defendant companies, by the construction of some additions to their plant, or that some new method might be devised and put into effect by which the slight damage which he found to exist from its operation might be reduced or entirely overcome, the court retained the cause for the purpose of taking further testimony in respect to that matter, giving each party an opportunity to present such evidence as they might be able to obtain within a stated time, and after hearing such evidence as ivas presented by the defendants — the complainant failing to produce any — found that the defendants had taken every precaution possible to prevent any deleterious effects from the operation of their plant, and accordingly entered final judgment.

The record shows that less than one-third of the farmers of Deer Todge Valley side with the complainant in his contention, and that the testimony of many of the farmers within the “Smoke Zone” is to the effect that since the remodeling of the smelter in 1903 there has been no appreciable damage done to the crops or stock of the farmers in that territory. Counsel for the complainant seem to think that all such witnesses were in some way under the control or in the interest of the defendants to the suit, and, indeed, that all of the testimony of the numerous witnesses, to the effect that since the remodeling of the smelter no appreciable harm has resulted to the crops or stock of the farmers, is either false or entirely unreliable. We cannot so hold. A number of the witnesses for the defendants who, in effect, so testified, are men of national, and some of them of international, reputation in respect to the subjects upon which they testified, and the positions respectively held by them are good evidence of their personal character. And with respect to the farmers who testified on behalf of the defendants, .how can we know or be reasonably expected to hold that they are any the less truthful and reliable than the farmers who testified on behalf of the complainant? It has been said that in the nature of things the enormous quantity of sulphur and arsenic thrown into the atmosphere by the stack of the defendants’ smelter must find lodgment somewhere, and much reliance is placed by the complainant’s counsel on .the testimony of his principal chemical expert, Dr. Swain. Without regard to the expert testimony on behalf of the defendants tending to show that it was impossible to ascertain with any degree of accuracy the volume or contents of the smoke stream issuing from the defendants’ smelter by reason of its varying physical condition, due to changes of temperature and the different velocities the smoke stream moved in different portions of the stack for various reasons, we make brief reference to some of the testimony of Dr. Swain. He undertook to ascertain the contents of the smoke stream and gave as a result of his experiments the smoke velocity as 55.92 feet per second, the volume of smoke for 24 hours 2,340,000 cubic feet, which he reduced to 2,000,000 cubic feet as eminently fair. He calculated the AsaCb for 24 hours as 48,100 pounds, reduced as a reasonable estimate to 44,000 pounds, and gave as analysis of his smoke sample 10.9 millimeters of arsenic per cubic foot of smoke. Being asked how he measured the volume of smoke that he analyzed, the witness answered:

“A. The volume of smoke was determined by inserting into the stack, to a distance exactly equal to the distance we inserted the sampling tube — two iron pipes 'leading to what is known as ‘Pitot tube.’ This Pitot tube has one aperture directed downward in the opposite direction to the smoke stream, two other apertures, which are slits inside of the tube, lateral to the smoke stream, and thus connected separately to a glass U-tube carrying ether, and, by using- this maometer, we measured the change, for in the ether column "we had a measure of the pressure of the moving mass of gas. By using a •formula proved to be correct, we converted pressure into terms of velocity feet per second, and then a mathematical calculation based on the temperature of the stack gives the feet per second-passing at the point in the stack opposite our apparatus. A simple calculation also gives us the volume per '24 hours thrown out.”

He gave as the diameter of the tube through which the smoke was-drawn as 3/16 of an inch, and the diameter of the stack as 33% feet. He admitted some errors in bis work, and stated that there are neces - sarily errors in such work, but also testified that he had allowed for errors in his final reasonable estimate. He testified, also, in effect, as stated by the court below, that the slightest mistake in the chemical analysis in trying to arrive at the amount of arsenic would be multiplied by millions and millions. He testified, also, that he did not know-in how many different forms arsenic was present in the smoke, and that its ill effect would depend upon the poisonous character of the arsenic and be measured by the solubility of the substance in water and digestive juices. .Being asked the question:

"When the smoke would be distributed over the Deer Lodge Valle;,-, so as to envelop the same with tlie trioxide of arsenic ingredients contained^ in it, which you have testified to, what, in your opinion, would be the effect or condition arising from the smoke as it passed over and enveloped the Deer Lodge Valley — in so far as this arsenic* or trioxide of arsenic is concerned?” :

He answered:

“A. I would expect a partial deposition of the solid substance.

“Q. On the lands?

“A. On the surface exposed.

“Q. Well, do yon mean by that. Doctor, that a part of the solid bodies? and trioxide of arsenic, in whatever form it might be, would remain continuously in the atmosi>here, or would it finally all be deposited somewhere?

“A. That Is not a reasonable assumption, I think, to believe; that it would be permanently suspended; but no man has a measure of the rate of (leposi-iion of the finely divided solid particles from the atmosphere.

“Q. Then yonr opinion would be that sooner or later it was all to be deposited somewhere; that is, precipitated?

“A. That is a perfectly sound and reasonable assumption.”

[2] Taking the testimony of Dr. Swain, regardless of that of the expert witnesses of the defendants on the same subject, we think it far too indefinite and uncertain to overcome the findings of the court to the effect that since the remodeling of the smelter in 1903 the emanations have only affected the property of the complainant and the other farmers within the “Smoke Zone” in a very slight degree. Accepting those findings, as we must, we think the judgment denying the injunction prayed for and remitting the complainant to an action at law for such damages as he has really sustained should be affirmed, under the established doctrine of the Supreme Court of the United States and of this court to the effect that in such cases it is proper to consider all of the facts and circumstances of the case in order to determine the equities, including comparative damages, where, as in the present case, it is sought to enjoin a lawful business, and to withhold the writ where it appears that it will necessarily operate contrary to the real justice of the ease. See Parker v. Winnipiscogee Lake & Woolen Co., 67 U. S. 545-552-553, 17 L. Ed. 333; 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; Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038; Mountain Copper Co. v. United States, 142 Fed. 625, 73 C. C. A. 621; McCarthy v. Bunker Hill & Sullivan Min. Co., 164 Fed. 927, 92 C. C. A. 259; Bonaparte v. Camden, etc., R. R. Co., Fed. Cas. No. 1,617; Edwards v. Allouez Min. Co., 38 Mich. 46, 31 Am. Rep. 301.

The judgment is- affirmed.

In view of the importance of the case and the size of the record, we direct'that our mandate be stayed for six months to enable the appellant to apply to the Supreme Court for a writ of certiorari should he so desire.