WILMORE ET AL. v. CHAIN O‘MINES, INC. ET AL.
No. 13,244
Decided December 17, 1934
Original opinion adhered to on rehearing March 14, 1935
44 P. [2d] 1024
MR. CHIEF JUSTICE BUTLER and MR. JUSTICE BOUCK concur.
Mr. STEPHEN R. CURTIS, Mr. A. K. BARNES, Mr. F. J. KNAUSS, Mr. HERBERT M. MUNROE, Mr. CHARLES A. HASKELL, Mr. HAROLD TAFT KING, for defendants in error.
Mr. PAGE M. BRERETON, Mr. DAVID P. STRICKLER, Mr. F. L. COLLOM, Mr. F. L. JONES, Mr. WILLIAM A. WAY, Mr. CARL A. KAISER, Mr. L. WARD BANNISTER, Messrs. CLAY & BENTON, Mr. WARWICK M. DOWNING, Mr. J. G. HOLLAND, Messrs. LEE, SHAW & MCCREERY, Mr. CANTON O‘DONNELL, Messrs. PONSFORD & PENDER, Mr. HARRY W. ROBINSON, Mr. DOUGLAS A. ROLLER, Mr. BARNEY L. WHATLEY, Mr. FLOYD J. WILSON, Messrs. FAIRLAMB & FAIRLAMB, Mr. HENRY MCALLISTER, amici curiae.
En Banc.
MR. JUSTICE HOLLAND delivered the opinion of the court.
PLAINTIFFS in error were plaintiffs in the trial court, where they sought to enjoin the pollution of the waters of Clear Creek by defendants with tailings from the latter‘s mills. The court found generally in favor of plaintiffs, but by its final decree allowed defendants to discharge 670 tons of tailings and slime, per day, into Clear Creek and required plaintiffs to pay their own costs. Error is prosecuted to reverse this decree.
Defendants by their answers admit depositing the tailings and slime in the waters of Clear Creek, but deny that more than ten per cent of such reach the lands of plaintiffs and other water users, and claim this pollution to be lawful. Four defenses were set up by the answers:
First. That the tailings were not injurious. Second. Usage and custom in depositing in the stream all mill tailings and slimes from the mills in this watershed for many years. Third. Acquiescence by plaintiffs by reason of their having failed for an unrеasonable time to take steps to prevent this pollution. Fourth. That defendants cannot, without an expenditure in excess of profits, dispose of their mill tailings and slimes otherwise than by depositing them into the stream.
Demurrers to the last three defenses were filed and taken under advisement by the court until the case was presented on the merits, and then sustained. Replications were filed denying all new matters and alleging the plaintiffs’ water appropriations were long prior, in point of time, to any pretended right of the defendants. The court found this tailings damage to plaintiffs’ lands to be immeasurable and irreparable; that there is a point between one ton and 3,000 tons of daily tailings output where the use by the defendants of their water rights for milling purposes becomes unreasonable; that where this point is,
The evidence shows the ownership of lands by plaintiffs and the right to divert and use water from Clear Creek for the irrigation of their lands. These rights they exercise, and they raise all kinds of garden and farm products. It required many days to introduce the great mass of detailed evidence showing damage, and the vast preponderance of thе evidence justifies a finding of irreparable damage.
The evidence is grouped under 24 subdivisions and emphasizes the following conditions: The headwaters of Clear Creek are in Clear Creek and Gilpin counties and form the stream which flows easterly, entering the South Platte river north of Denver. The principal ditches involved, that divert water from Clear Creek, are six in number and extend 30 miles from the point where the stream leaves the mountains. The defendants’ mills, of which complaint is made, are located in the mountains and bеgan the operations, which are claimed to damage plaintiffs, in 1928 and 1929 respectively. These mills grind and pulverize large quantities of ore and the process employed reduces it to finely powdered rock called tailings
The specific findings of the court on all matters presented was in favor of the plaintiffs, but apparently by its decree it allowed defendants to discharge 670 tons of tailings and slimes per day into Clear Creek on the theory that such discharge was not unreasonable, and it stated that the point between a reasonable and an unreasonable discharge is not definitely fixed by the evidence and that in determining this question, it was necessary for the court to experiment. It further stated that the defendants had a right to make reasonable experiments to impound their mill tailings and the court retained jurisdiction to modify its injunctive orders so as to permit such experimentation, and required plaintiffs to pay thеir own costs.
The defendant companies contend that their first, second and fourth defenses were good; that the demurrer thereto should not have been sustained and they assign cross-error on the adverse ruling. Said defenses are: First. Usage and custom of operators of reduction mills and plants in the watershed of discharging tailings and slimes into Clear Creek for many years. Second. That at the time the farmers acquired their lands and water rights they knew of the above mentioned custom, raised no objection to the construction of the mills involved, and thereby acquiesced in the construction and operation of the mills, neglecting for an unreasonable time to take any steps to prevent the alleged nuisance. Third. That defendants cannot, without an expenditure in excess of their present or prospective profits, dispose of mill tailings and slimes otherwise than by discharging them into Clear Creek and its tributaries.
Plaintiffs contend that this pollution of the water is in violation of the statutes and constitutes a nuisance that should be enjoined fully and permanently as the pleadings
In no case shall any person or persons be allowed to flood the property of another person with water, or wash dоwn the tailings of his or their sluice upon the claim or property of other persons, but it shall be the duty of every miner to take care of his own tailings, upon his own property, or become responsible for all damages that may arise therefrom.
Viewed in the light of reason and this particular statute, it would seem that there is no doubt about the correctness of the trial court‘s finding which is based upon ample evidence that there was a violation of the statute and an invasion of plaintiffs’ rights. The demurrer to these three defenses was properly sustained. As to the remaining defense, that the tailings were not injurious, there is ample evidence to support the findings of the trial court to the contrary and they therefore will not be disturbed.
It is not necessary to discuss the many questions presented concerning the rights of both the parties touching their priorities or as to the superior rights claimed by defendants for manufacturing or milling purposes, or the question of acquiescence by plaintiffs, for the reason that the question of pollution is determinаtive of all matters involved. Whatever rights might be claimed by the defendant owners, they cannot justify the claim of a right to pollute the waters of this natural stream. This question is definitely settled by the case of Suffolk G. M. & M. Co. v. Mining Co., 9 Colo. App. 407, 415, 419, 48 Pac. 828, from which we quote the following language:
The lower owners were entitled to have the waters preserved in their purity, that fish might swim, that their stock might
drink, and that the water might be applied to domestic uses. Parties have been restrained from carrying on a business on the banks of a stream whereby polluting matter would by natural seepage, from rains or from any extraneous cause, be carried into the general volume of the water, and diminish its purity and its usefulness. This has been extended so far as to prevent the owners of lands higher up the stream from using their land at their own pleasure, although they had an absolute fee title thereto, in such way as to injure the lower owners, unless such injury proceeded from natural causes over which the parties had no control. Parties have been permitted to mine their own lands, but even thereon and therein they have been restrained from erecting pumping plаnts, hoisting water to the surface, discharging it into a stream, and letting it flow to their neighbors in such way as to injure the use and destroy the right which the lower owner had theretofore enjoyed.
Citing cases. Continuing, the court said:
The question of balance of injury may possibly be right, and the court may have a right to consider it on an interlocutory application; but we know of no principle by which equity, otherwise having cognizance of the case, should measure the rights of one party by the cost to the other, committing the injury, to prevent either its commission or its continuаnce. As it was put in the English cases, it would be a sorry condition of the law if the courts were compelled to hold that the property of another might be taken because it would be either inconvenient or expensive to the one committing the nuisance to restrain or prevent its continuance.
(Cited with approval in Krebs v. Hermann, 90 Colo. 61, 70, 6 P. (2d) 907).
There is an admitted pollution of the water here in question. That a greater portion is polluted than is admitted, is clearly shown by the evidence, and the court so found. It further specifically found that this pollution caused immeasurable and irreparable damage to plaintiffs, however, in the language of the court, without definite or precise evidence. It also made a finding that
The acts of the defendants in operating their mills, although contributing in different degrees to the pollution of which complaint is made, combined and taken together operated to produce the damaging results, and each is responsible for the entire resulting damage even though its separate act or neglect alone might not have caused it. In the circumstances neither should escape the effect of a full and permanent injunction.
We therefore affirm the finding of the trial court in part, and remand the causе with directions to enter a decree making the injunction full, complete and permanent.
MR. JUSTICE BUTLER and MR. JUSTICE BOUCK dissent.
MR. JUSTICE BUTLER, dissenting.
The decision of this case works what seems to me to be a grave injustice. Its effect upon the mining and milling industry of the state is bound to be far-reaching and serious.
The suit is by Wilmore and others, in their own behalf and in behalf of others similarly situated. They own
The record in this case contains over 4,050 folios. A great mass of evidence, both expert and nonexpert, was taken. The evidence is in sharp conflict, and the trial judge made what is referred to as “a tour of inspection,” during which he personally viewed the property affected. The court made elaborate findings. It found, among other things:
* * * that the plaintiffs and those similarly situated have been very much inclined to blame mill tailings for many ills they have suffered and many deficiencies in their soils arising from other sources and defects. The results of lack of water of any kind, insufficient fertilization, unskillful use of irrigating water, improper rotation of crops, negligence in spreading banks of old ditches and years of accumulation of tailings and dead organic matter over virgin soil instead of carting the same away, plant diseases, black root, alfalfa bur, winter kill, etc., shortage of water, soil deficiencies in potash and phosphates, and soil excess of these properties, and nitrates, have all been charged to dеposits of tailings. Certainly, the operations of the defendants’ mills and the tailings and slimes introduced by the defendants’ mills into the stream played but a minor part in the creation of these particular items of damage.
It also found that the mill of the Mattie company has been discharging daily into Chicago Creek, a tributary of Clear Creek, approximately 65 to 70 tons of mill tailings; that such discharge “is reasonable and will cause no real, material and substantial damage to the plaintiffs and others similarly situated“; that the mill of Chain O‘Mines has a present output of approximately 2,000 tons of ore a day, which it is the company‘s intention to increase to 3,000 tons; that it discharged into Clear Creek in 1931 a daily average of approximately 720 tons of mill slimes and tailings, and in 1932 up to July 18 a daily average of
The defendants, of course, should be restrained from discharging into the creek such quantities of slimes and tailings as would cause real, material and substantial damage to the plaintiffs and others similarly situated. Anything short of that would be an injustice to the plaintiffs; anything in excess of that would be an injustice to the defendants. By its decision this court orders the trial court to go far beyond what equity practice warrants. It orders that court to enjoin the defendants perpetually from dischаrging into the creek, not only such quantities of slimes and tailings as would cause such damage, but also quantities of slimes and tailings that the trial court found, upon full consideration of all the facts and circumstances, would not and could not cause such damage. An injunction is a drastic remedy and never should go beyond the necessity of the occasion.
The holding in this case, if adhered to, would seriously and unjustly cripple the mining and milling industry, one of the great industries of this state; an industry that caused the settlement of this region, and to which the state оwes its birth in 1876, its financial salvation during
I am firmly convinced that the judgment of the district court is a righteous one and should be affirmed; therefore I dissent.
MR. JUSTICE BOUCK concurs in this dissenting opinion.
On Rehearing.
MR. JUSTICE HOLLAND.
In the original opinion, the thing enjoined is pollution. On rehearing, it has been argued, in substance, that the introduction of any quantity of extraneous matter into this stream, would be a violation of the injunction. That does not follow. For the purposes of this case, the word “pollution” means an impairment, with attendant injury, to the use оf the water that plaintiffs are entitled to make. Unless the introduction of extraneous matter so unfavorably affects such use, the condition created is short of pollution. In reality, the thing forbidden is the injury. The quantity introduced is immaterial. A primary duty rests upon one introducing such extraneous matter into this stream to prevent damage from arising from such introduction, either from his acts alone, or in conjunction with those of others. Failing in this, he must answer at his peril.
The original opinion is adhered to.
MR. CHIEF JUSTICE BUTLER and MR. JUSTICE BOUCK dissent from the order adhering to the original opinion.
MR. JUSTICE CAMPBELL not participating.
MR. JUSTICE BOUCK, dissenting.
The original opinion wаs handed down on December 17, 1934. A rehearing was granted. Many outstanding attorneys of the state were then given leave to file briefs as amici curiae. Some of these were not only specialists
I respectfully submit that the logic of the dissenting opinion filed by the present Chief Justice remains unanswered.
As I read the original and the supplemental opinion, they mean:
1. The majority has selected for approval some of the findings made by the trial court, and has rejected-contrary to a universally recognized principle-other findings made, as were the others, upon conflicting evidence from witnesses whom the lower court, unlike ourselves, has seen and heard. The result is that this court has substituted its own findings for the findings thus duly entered below. If there were error in the findings, the case should be sent back to the trial court for a new trial at which any errors could be corrected, but only by making proper findings in that court. To say that the findings of the lower court sustain the partial reversal by this court of the judgment below is to ignore a substantial portion of the findings themselves, as was pointed out in the dissenting opinion.
2. The majority says in its original opinion that “viewed in the light of reason and this particular statute, it would seem that there is no doubt about the correctness of the trial court‘s finding which is based upon ample evidence that there was a violation of the statute and an invasion of plaintiffs’ rights.”
The majority errs, therefore, in virtually laying down the general proposition that one who dumps tailings renders himself liable in any event to an injunction. That attitude is contrary both to the aforesaid statute and to the elementary principles of the injunctive jurisdiction. Whereas, under the findings below, the dumping of 670 tons per day into Clear Creek has been regularly determined by the trial court to be harmless, and the injunction was therefore limited to amounts in excess thereof, the majority in its supplemental opinion emphasizes that whenever there is a dumping of “extraneous matter” which “so unfavorably affects” “the use of the water that plaintiffs are entitled to make” as to bring “impairment, with attendant injury,” to such use and the supplemental opinion says that “the quantity introduced is immaterial” then the dumping must be enjoined. It is difficult to see how this viewpoint fits into any authentic modern conception of the relative functions allotted to legal and equitable remedies. To say that, merely because a thing is forbidden by statute, the court must issue its injunction against any violation, is to throw the whole doctrine of damages and compensation to the winds. It is obviously a judicial repeal of the hitherto fundamental system whereby actions are brought to recover damages, and a judicial repeal as well of the
In conclusion, I can only express my keen regret that the supplemental opinion undertakes to advance and insist upon such views, and particularly by its final warning, so fraught with potential terror for the mine or mill operator who desires to be law-abiding: “Failing in this, he must answer at his peril.”