113 Tenn. 331 | Tenn. | 1904
delivered the opinion of the Court.
■ These three suits were instituted separately in the court below, but tried together here. They embrace, in the main, the same facts and the same questions of law, and will be disposed of in a single opinion.
The bills are all based on the ground of nuisance, in that the two companies, in the operation of their plants at and near Ducktown, in Polk county, in the course of reducing copper ore, cause large volumes of smoke to issue from their roast piles, which smoke descends upon the surrounding lands, and injures trees and crops, and
The following general facts are applicable to all of the cases:
Prior to 1870 one Rhat began the operation of a copper mine at Ducktown, and worked it for several years. Subsequently it was owned by the Union Consolidated Mining Company, Mr. Rhat’s successor. These operations were continued until the year 1879, and were then suspended until 1891. During the latter year the Duck-town Sulphur, Copper & Iron Company commenced operating the properties formerly owned and operated by the Union Consolidated Mining Company, and has continued. to operate them ever since. The Pittsburg. & Tennessee Copper Company began operations at Duck-town about the year 1881, and continued until about 1899, when it sold out to the defendant Tennessee Copper Company. The latter began its operations in 1900, and commenced roasting ores in May, 1901. It has continued its works ever since.
Ducktown is in a basin of the mountains of Polk county, in this State, not far from the State line of the States of Georgia and North Carolina. This basin is six or eight miles wide. The complainants are the own-
The method used by the defendants in reducing their copper ores is to place the green ore, broken up, on layers of wood, making large open-air piles, called “roast piles,” and these roast piles are ignited for the purpose of expelling from the ore certain foreign matters called “sulphurets.” In burning, these roast piles emit large yolum.es of smoke. This smoke, rising in the air, is carried off by air currents around and over adjoining land.
The lands of the complainants in the first bill, Carter, W. M. Madison and Margaret A. Madison, Verner, and Ballew, lie from two to four miles from the works. The land of Farner, complainant in the last bill, lies six or eight miles away. The distance of McGhee’s land is not shown. The complainants in the first and second bills are the same, with the exception that McGhee does not appear in the first bill, and Yerner and Ballew do not appear in the second bill.
These lands are all thin mountain lands, of little agricultural value. Carter’s land consists of eighty acres, assessed at $80; Vemer’s, eighty-nine acres, at $110; Ballew’s, forty acres, at $66; Madison and wife, forty-three acres, at $83; W. M. Madison, about one hundred acres, at $180; Isaac Farner, one hundred acres, at $180. Avery McGhee has seventy-five acres. W. M. Madison has a tract across the Georgia line, and Mrs. Madison also one of one hundred acres there. The assessed value
All of the complainants have owned their several tracts since a time anterior to the resumption of the copper industry at Ducktown in 1891, and have resided on them during this period, with the exception of Avery McGhee, who worked for one of the defendant companies a considerable time, and Margaret Madison, who removed to Snoddy, in Rhea county, two or three years ago.
The general effect produced by the smoke upon the possessions and families of the complainants is as follows, viz.:
Their timber and crop interests have been badly injured, and-they have been annoyed and discommoded by the smoke so that the complainants are prevented from using and enjoying their farms and-homes as they did prior to the inauguration of these enterprises. The smoke makes it impossible for the owners of farms within the area of the smoke zone to subsist their families thereon with the degree of comfort they enjoyed be-’ fore. They cannot raise and harvest their customary crops, and their timber is largely destroyed. •
In the first case it is shown that the complainants sold their timber to the first-named defendant, but they were under the necessity of either selling it, or permitting it to go to waste upon the ground; it having been
The facts found in the third case show the following in respect of the situation and injuries of complainant Farner, viz.: “He has lived on his farm since its purchase by him, some twenty or more years ago, and has supported his family, in connection with such other work as men similarly situated do in the support of their families. He has his garden and orchard, and' does, or did, raise corn, hay, and such other crops, and also vegetables, as are usually raised in that mountain section of our country. ...
“The proof in the record shows that the smoke not only causes the wife of complainant to cough, but makes her head ache. It also shows that it has injured and destroyed the timber, or a portion of it, of complainant, and that it injures his crops. The extent to which it has destroyed his timber is a matter of dispute, and it is also a matter of dispute as to the amount of injury it inflicts upon his crops. Some of the defendants’ witnesses say that it has destroyed from eight to ten per cent, of the timber on the place. Other witnesses say— and especially the witnesses of the complainant — that it has destroyed from thirty to fifty per cent, of the timber on the place. . . .
“This complainant testifies, in effect, that if this smoke continues from time to time, and from year to
“There is no material evidence in tbe record to dispute tbe effect of this testimony of complainant.”
In tbe second case tbe finding of facts shows that tbe injuries to timber' and crops and to tbe comfort of tbe complainants are much tbe same as these already stated. But, notwithstanding these facts, it is also found that tbe lands of at least two of these complainants, Carter and W. M. Madison, bave continuously increased in assessed value from 1895 to 1903, inclusive.
There is no finding in either of tbe cases that tbe output of smoke by tbe Ducktown Sulphur, Copper & Iron Company has increased to any extent since 1891, when tbe business of mining and reducing copper ore was resumed at Ducktown. There is likewise no finding as to this matter in respect of tbe Tennessee Copper Company since it began roasting ores in May, 1901.
There is a finding that tbe Ducktown Sulphur, Copper & Iron Company acquired its plant in 1891, and that it has spent several hundred thousand dollars since that time in improving and enlarging tbe plant.
Tbe court of chancery appeals finds that tbe defendants are conducting and bave been conducting their business in a lawful way, without any purpose or desire to injure any of tbe complainants; that they bave been and are pursuing tbe only known method by which these
It is to be inferred from the description of the locality that there is no place more remote to which the operations referred to could be transferred.
It is found, in substance, that, if the injunctive relief sought be granted, the defendants will be compelled to stop, operations and their property will become practically worthless, the immense business conducted by them will cease, and they will be compelled to withdraw from the State. It is a necessary deduction from the foregoing that a great and increasing industry in the State will be destroyed, and all of the valuable copper properties of the State become worthless.
The following facts were also found, viz.:
That the total tax aggregate of Polk county for the year 1903 was $2,585,931.43, of which total the assessments of the defendants amounted to $1,279,533. It is also found that prior to the operations of these companies there lived in the district where these works are located only ttvp hundred people, whereas there are now living in this district, almost wholly dependent upon these copper industries, about 12,000 people.
It is further found that one of the defendants, the Tennessee Copper Company, consumes approximately 3,000 tons of coke, 2,800 tons of coal, and 1,000 cords of wood per month, and that it purchases and uses 2,110 carloads of coal, coke, wood, etc., per annum. In the year 1901 it purchased and used approximately 1,100 car loads of cord wood, cross-ties, lumber, and quartz. It was also found that eighty per cent, of these supplies were purchased from, and delivered by, the citizens of Polk county. The aggregate paid out for supplies is not stated in the findings of the court of chancery appeals, and cannot be here stated accurately, but certainly the amount is very large; and it seems from the figures stated that one of the defendants alone, the Tennessee Copper Company, pays out annually, in wages in Polk county nearly a half million of dollars. The court of chancery appeals finds that the other company employs between 1,100 and 1,200 people, and from this it may be inferred that the company pays out in wages and for supplies annually nearly as much as the Tennessee Copper Company.
It is quite apparent that the two companies pay out annually vast sums of money, which are necessarily of great benefit to the people of the county, and that they
The first hill was filed July 1, 1901. Its purpose was to enjoin the further operation of the works of the defendant Ducktown Sulphur, Copper & Iron Company. This bill was put at issue, and upon the hearing was dismissed by the chancellor. On appeal the decree of the chancellor was reversed by the court of chancery appeals, and a perpetual injunction awarded.
The bill in the second-named case was filed on the 14th of July, 1903. Its purpose was to obtain an injunction to perpetually enjoin the operation of both of the defendant corporations, and to obtain a recovery against them for the injuries which the complainants had suffered by the smoke.
There were several demurrers filed to this bill by the two defendants, but we need mention only two of the grounds assigned. One of these grounds was that the bill was multifarious, in that it presented two distinct causes of action against the defendants; that is, a separate cause of action for each of the complainants. The other ground of demurrer was that the defendants were improperly joined in the bill, there being no joint liability shown by the allegations of the bill.
Tbe answers need not be referred to specially, further than to say that they made proper issues upon which proof was taken. The defendants admitted that they were liable in actions at law in damages for whatever injuries had been inflicted, but denied the right of the complainants to an injunction.
There was an allegation in the bill to the effect that both of the defendants had mortgages upon their properties to the full amount of the taxable value thereof. It was admitted in both of the answers that each of the defendants had a large mortgage upon its property, but it was averred that these mortgages did not cover all of their several properties.
One of the defenses interposed by the Ducktown Sul-phur, Copper & Iron Company was that of former suit pending as to certain of the complainants.
The chancellor overruled the latter defense, and, upon the ground of the existence of the mortgages referred to, rendered a decree, the substance of which was that he required the defendants to- give bond to cover such amount of damages as might be found due from them, and, upon this bond being given, declined to grant an injunction, but referred the cause to the master to ascertain and report the amount of damages due.
On appeal the decree of the chancellor was affirmed by the court of chancery appeals as to his action on the demurrer and the plea of former suit pending, but in
The bill in the third case appearing in the caption of this opinion — the Farner case — was filed on August 24, 1902. Its purpose was to obtain a perpetual injunction against the operation of the works of the defendant Tennessee Copper Company. After issue was made and proof heard, the chancellor declined to grant the relief sought, and dismissed the bill.
On appeal the court of chancery appeals likewise reversed this decree of the chancellor, and granted the perpetual injunction asked for.
These several decrees were rendered in the court of chancery appeals on a majority opinion; Judge Barton, of that court, each time dissenting.. In the second case he filed a very earnest and able dissenting opinion.
From the several decrees of the court of chancery appeals an appeal was prayed by the two defendants and by complainant McGhee to this court, wherein the causes all now stand for final adjudication.
Before passing to the chief question in the case, we .shall briefly refer to the preliminary questions above indicated:
1. The rule is that two or more persons may unite
In view of these authorities, there can be no doubt
2. As to tbe* plea of former suit pending: This applies to only three of tbe complainants in tbe second bill, Carter, W. M. Madison, and Margaret Madison; nor do we think tbe plea is good as to them. The first suit is against' only one of tbe two defendants to tbe second suit, and tbe latter is based upon a cause of action which tbe complainants referred to bad tbe right to prefer against the two. Moreover, tbe latter suit contains a claim for damages, while tbe first one does not. So, in an event, tbe second suit, being tbe broader and containing more matter of litigation, would be allowed to stand. “If two bills be found in tbe same court for tbe' same purpose,” said Mr. Justice Cooper in Parmelee v. Railroad Company, “tbe rule is to allow tbat bill to proceed which embraces tbe most matter of litigation. [Citing Croft v. Worthley, 1 Ch. Cas., 241; Rigby v. Stringways, 2 Phill., 175.] Tbe same rule should be applied where the two bills have been filed in different courts of tbe same government, having concurrent jurisdiction. [Citing Moore v. Holt, 3 Tenn. Ch., 141; Schuehle v. Reiman, 86 N. Y., 273.] Tbe present bill embracing an additional matter of litigation, tbe proper
3. As to the appeal of Avery McGhee': We think the court of chancery appeals was in error in dismissing the bill in the second case as to him, on the ground stated. At most, that court should have directed a remand as to him for the purpose of separating his cause from that of the other proceeding against the two defendants. He must be treated, therefore, as before this court for the purpose of settling his rights on the general questions involved in the controversy.
4. We shall now state the principles which, as we conceive, should control the merits of the controversy involved in the several cases before the court:
While there can be no doubt that the facts stated make out a case of nuisance, for which the complainants in actions at law would be entitled to recover damages (Swain v. Ducktown Sulphur, Copper & Iron Co., supra) , yet the remedy in equity is not a matter of course (Parker v. Winnipiseogee Lake, etc., Co., 2 Black [U. S.] 545, 17 L. Ed., 333). Not only must the bill state a proper case, but the right must be clear (Holsman v. Boiling Springs Bleaching Co., 14 N. J. Eq., 335, 343; Duncan v. Hayes, 22 N. J. Eq., 25), and the injury must
And the equitable remedy by injunction must be applied for with reasonable promptness. There must be no laches. Caldwell v. Knott, 10 Yerg., 210, 212; W. J. Stamps et al. v. W. H. Hartford et al., MS., Nashville, December term, 1898; Bassett v. Company, 47 N. H., 438 441; Goodall v. Crofton, 33 Ohio St., 271, 31 Am. Rep., 535; Whitney v. Union Ry. Co., 11 Cray (Mass.), 359, 71 Am. Dec., 715; Reid v. Gifford, 6 Johns. Ch., 19;
In the last-cited case a delay of only nine months was held a sufficient time to estop the complainant, contracts and engagements having been entered into in furtherance of the work by the defendant during that period. In Graham v. Birkenhead, etc., Ry. Co., a delay of eighteen months was held sufficient, there having been expenditures made by the defendant in the meantime. In Birmingham Canal Co. v. Lloyd a delay of two years
Upon laches appearing, a court of equity will be justified in withholding relief and leaving the party to his rights at law. '“A party may by laches,” says Wood, “deprive himself of an equitable remedy against a nuisance. Thus if a party sleeps on his rights and allows a nuisance to go on without remonstrance, or rather without taking measures either by suit at law or in equity to protect his rights, and allows the party to go on making large expenditures, about the business which constitutes the nuisance, he will be regarded as guilty of such laches as to deprive him of equitable relief, par
And recently the supreme court of Pennsylvania said (quoting with approval the language of a well-known text-book) : “Relief by injunction is not controlled by arbitrary or technical rules, but the application for its exercise is addressed to the conscience and sound discretion of the court. Where a party seeks the intervention of a court of equity to protect his rights by injunction, the application must be seasonably made, or the rights may be lost, or at least so far as equitable intervention is concerned. It is a rule practically without exception that a court of equity will not grant relief by injunction where the party seeking it, being cognizant of his rights, does not take those steps which are open to him, but lies by and suffers his adversary to incur expenses and enter into burdensome engagements which, would render the granting of an injunction against the completion of the undertaking, or the use thereof when completed, a great injury to him. A suitor who by his laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon him will be left to. pur sue his ordinary legal remedy.” Stewart Wire Co. v. Lehigh C. & N. Co., supra.
The matter of laches will he considered by the court in connection with the other facts of the case by which its discretion is to be guided. “It will consider all the circumstances, the consequences of such action, and the real, equity of the case.” Parker v. Winnipiseogee Lake, etc., Co., 2 Black, 545, 552, 553, 17 L. Ed., 333; Owen v. Phillips, Goodall v. Crofton, Clifton Iron Co. v. Dye, and Tuttle v. Church, supra.
And in Stewart Wire Co. v. Lehigh C. & N. Co., supra, it was held that the defense of laches might be applied as a bar to equitable relief in the supreme court, although not raised in the pleadings or mooted in the court below, where the laches appeared from the facts contained in the record. 203 Pa., 478, 53 Atl., 352. See also, Potts v. Alexander (C. C.), 118 Fed., 885.
We are of opinion that the complainants in the first bill are estopped to claim equitable relief against the defendant thereto by their laches. It is clearly to be in
It does not apply to these complainants, however, in so far as they seek relief against the Tennessee Copper Company, nor to Avery McGhee or Isaac Farner, seeking relief against the latter company, inasmuch as the bill in the second case was filed within about two years (26-2- months) after the Tennessee Copper Company began roasting ore, and the bill in the third case was filed within about one year (sixteen months) from the date referred to, and it does not appear that any improvement or special expenditures were made in the meantime.
So, as to these parties, in the aspect above presented,
In addition to the principles already announced, the following general propositions seem to be established by the authorities: If the case made out by the pleadings and evidence shows with sufficient clearness and certainty grounds for equitable relief it will not be denied because the persons proceeded against are engaged in a lawful business. (Stockport Waterworks Co. v. Potter, 7 H. & N., 159; Respublica v. Caldwell, 1 Dall., 161, 1 L. Ed., 77; Tipping v. St. Helens Smelting Co., 11 H. L. Cas., 642; Atty.-Gen. v. Colny Hatch Lunatic Asylum, 4 L. R., Ch. App., 478; Crossley v. Lightowler, 3 L. R., Eq., 279, 2 L. R., Ch. App., 478; Goldschmidt v. Tunbridge Wells Imp. Co., 1 L. R. Eq., 161, 169; Broadbent v. Imperial Gas Co., 7 De G. & M., 436, 443, 462; Spokes v. Banbury Board of Health, L. R., 1 Eq., 47, 51; Goodson v. Richardson, 9 L. R., Ch., 223, 224; Robinson v. Baugh, 31 Mich., 291; Susquehanna Fertilizer Co. v. Malone, 73 Md., 268, 282, 20 Atl., 900, 9 L. R. A., 737, 25 Am. St. Rep., 595), or because the works complained of are located in a convenient place, if that place be one wherein an actionable injury is done to another (Susquehanna Fertilizer Co. v. Malone, 73 Md., 268, 277, 278, 20 Atl., 900, 9 L. R. A., 737, 25 Am. St. Rep., 595, and cases cited; Tipping v. St. Helens Smelting Co., supra); nor will the existence of another nuisance of a similar character at the same place furnish a ground for deny
But there is one othér principle which is of controlling influence in this department of the law, and in the light of which the foregoing principle must be weighed and applied. This is 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 consideration 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.
These propositions will be found to be substantially confirmed and enforced in the following authorities:
In Clack v. White (a nuisance case) it is said: “It is also admitted in defendant’s answer that the way was*359 opened and that be afterwards obstructed and closed it.' So that botb tbe legal title to theway and its obstruction by defendant appear in tbe present record. But it does not follow as a corollary that therefore tbe injunction will lie. Tbe special injunction is not a writ of right, but it rests in tbe sound discretion of tbe court'; and hence, Mr. Story-says, ‘No injunction will be granted whenever it will operate oppressively or inequitably or contrary to tbe real justice of tbe case.’ 2 Story, Eq. Jur., section 959.” 2 Swan, 545.
In Wood on Nuisances (3d Ed.), p. 1182, it is said:
“Tbe true intent of a court of equity being to do justice between parties, it will not issue a restraining order except where tbe rights of the parties demand it, and, in determining this question, all tbe circumstances of location, tbe effect of tbe act claimed to be a nuisance, and tbe effect upon tbe defendant’s business and interests will be considered; and, while tbe usefulness of the business, or its importance, magnitude, or extent, will not in all cases prevent interference, yet, if tbe injury on tbe one band is small and fairly compensable in damages, and tbe loss to tbe other party would be large and disastrous, an injunction will be refused and tbe party left to bis legal remedy.”
In Demarest v. Hardham it is said:
*359 “Tbe important ’question presented by tbe case is, does tbe manner in which ‘the defendant conducts bis business interfere with or injure tbe business of tbe complainants to such an extent as to create a nuisance
In Powell v. Bentley & Gerwig Furniture Co. (W. Va.), it is said:
“Although a court of equity in such cases follows precedent and goes by rule, as far as itcan, yet itfollows 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*362 as well as to tbe owner.” 12 S. E., 1087, 12 L. R. A., 54-56.
In Clifton Iron Co. v. Dye it is said:
“Counsel have pressed the proposition that mere convenience in the use of its property by 'the company does not entitle it to pour down upon the appellee’s land, and into the stream on his land, the debris from the washers erected by it, and we think the contention is reasonable. But it is not every case of nuisance or continuing trespass which a court of equity will restrain by injunction. In determining this question the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction. Wood v. Sutcliffe, 2 Sim. (N. S.), 162; E. & W. R. Co., v. E., T., V. & G. B. Co., 75 Ala., 275; C. & W. R. Co. v. Witherow, 82 Ala., 190, 3 South., 23; 1 High on Injunc., section 498; Davis v. Sowell, 77 Ala., 262; Torrey v. Camden R. Co., 18 N. J. Eq., 293; McBryde v. Sayre, 86 Ala., 458, 5 South., 791, 3 L. R. A., 861.
“The court will take notice of the fact that in the development of the mineral interests of this State, recently made, very large sums of money have been invested. The utilization'of these ores, which must be washed before using, necessitates in some measure the placing of sediment where it may flow into streams which constitute the natural drainage of the section' where the ore banks are situated. This must cause a deposit of sediment on the lands below, and, while this
A recent statute passed in this State (Acts 1901, p. 246, c. 139) gives legislative expression to the same considerations of duty and public policy which are contained in the foregoing citations.
Before setting out this statute, it is necessary that we reproduce the section of the Code of 1858 which it amends. That section reads as follows:
“Sec. 3403. In all suits brought for the recovery of damages resulting from any nuisance, and the finding that the matter complained of is a nuisance, the court may immediately upon petition of the plaintiff in writing, order the nuisance to be abated in the same manner and to the same extent as the chancery courts, without resort to a court of equity for that purpose.” Shannon’s Code, section 5158.
The act referred to reads as follows:
“An act to amend section 3403 of the Code of Tennessee, 1858 [Shannon’s Code, section 5158], and to au*364 thorize courts to determine in assessing damages for injuries to real estate, whether the nuisance complained of is a work of public utility and to give to said courts discretionary powers in respect to the abatement of such nuisance.
“Section 1. Be it enacted by the general assembly of the State of Tennessee, that section 3403 of the Code of Tennessee, 1858 [Shannon’s Code, section 5158], be so amended as to read as follows: In all suits brought for the recovery of damages resulting from any nuisance and the finding that the matter complained of is a nuisance, the court exercising a sound discretion may immediately upon petition of plaintiff, order or decline to order the nuisance to be abated.
“Sec. 2. Be it further enacted, that on the trial of any action for the recovery of damages as above said, either party may show by proof the extent if any of the injury or injuries complained of, and how the alleged nuisance is caused or originates.
“Sec. 3. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.
“Passed April 16, 1901.
“Approved April 17, 1901.”
When it is remembered that, on a bill filed in equity to obtain a permanent injunction against a nuisance (that is, to abate it), the court may, as incidental to the main relief sought, ascertain and allow damages for the injury already done (Richi v. Chatt., etc., Co., 105
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 leg
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, to depopulate a large town,
The costs of the appeal in each of the three cases above styled will be paid as follows: One-half by the complainants therein, and one-half by the defendant or defendants therein. The costs of the court below will be paid as may be hereafter decreed by the chancellor.
Let a decree be entered and the causes remanded as aboye indicated.