164 F. 927 (9th Cir. 1908), 1,397, McCarthy v. Bunker Hill & Sullivan Mining & Concentrating Co.

Docket Nº:1,397.
Citation:164 F. 927
Party Name:McCARTHY et al. v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. et al.
Case Date:November 06, 1908
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 927

164 F. 927 (9th Cir. 1908)

McCARTHY et al.

v.

BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. et al.

No. 1,397.

United States Court of Appeals, Ninth Circuit.

November 6, 1908

Page 928

The bill in this case was filed in the court below November 23, 1904. It was brought by the appellants McCarthy, Raney, and Doty against the Bunker Hill & Sullivan Mining & Concentrating Company, Federal Mining & Smelting Company, the Gold Hunter Mining & Smelting Company, corporations, and Peter Larson and Thomas L. Greenough, copartners under the firm name and style of 'Larson & Greenough.' After alleging the jurisdictional facts, the bill averred that in the year 1891 McCarthy acquired under the homestead laws of the government, and has ever since owned and possessed, certain described tracts of land in Kootenai county, Idaho; that Raney also acquired, and has ever since owned and possessed, certain tracts of government land in the same county and state, and that the complainant Doty, on March 7, 1902, acquired under the homestead laws 151 acres in the same county and state, upon which he has since resided; that all of the tracts so owned by the complainants are situate in the valley of the Coeur d'Alene river, contiguous to that stream, level, and prior to the acts complained of were of great fertility and value, producing large and valuable crops of hay, grain, vegetables, and other agricultural products, a large portion of the land being a natural meadow; that the aggregate value of the complainants' land and that of their associates represented by them, as afterwards alleged, is more than $800,000; that at the time the complainants, and nearly all of the parties mentioned in the bill as their associates, acquired their land, and before the acts of the defendants complained of, the waters of the Coeur d'Alene river and its tributaries were pure, clear, and wholesome, abounding in trout and other food fish, and were in every respect adapted to use for domestic purposes and the watering of stock, and the channel of the stream was very deep and navigable for steamboats of large size and deep draught from its confluence with Lake Coeur d'Alene to a point about 35 miles above called 'Mission,' and was so navigated daily by large boats to said point and by smaller ones about 14 miles further up the river, which boats passed near the lands of the complainants

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and their said associates, furnishing them with valuable and economical facilities for commerce and transportation for the products of their farms and for the bringing in of supplies and continuous travel, without change of conveyance, from Mission to Coeur d'Alene City on Lake Coeur d'Alene, about 60 miles therefrom, and to other towns and landings on said river and lake and other streams flowing therein, the competition of which boats kept down charges for freight and passenger rates to a reasonable and inexpensive charge, and also compelled the Oregon Railroad & Navigation Company, which operates a railroad along the river and lake, and very near thereto, to keep down the charge of freight and passenger rates to a low and reasonable charge; that the river and its tributaries, particularly the south fork of the stream, also furnished the complainants and their alleged associates with valuable and convenient facilities for floating timber, logs, cordwood, railroad ties, and like commodities from points along the river and from their own farms to the city of Spokane, in the state of Washington, where are situated mills for the manufacture of lumber and like commodities; that sometime prior to the year 1888, the defendant the Bunker Hill & Sullivan Mining & Concentrating Company became the owner of certain mining claims located in Shoshone county, Idaho, under the provisions of the mining laws of the United States, such mining claims being situated upon and in the hills overlooking and contiguous to Milo creek, a tributary of the south fork of the Coeur d'Alene river, and many miles above where the river flows by and through the lands of the complainants and their alleged associates; that, after acquiring these mining claims, the Bunker Hill Company commenced to extract the ores and minerals therefrom, and have since continued so to do, and threaten to do so indefinitely; that, in working its claims, that company has extracted and is continuing to extract therefrom, and threatens to continue so to do, great quantities of lead and silver ores, which require and will require treatment to separate the lead, silver, and other minerals from the base rock and earth in which they are found, for which purpose the Bunker Hill Company, about the year 1899, erected upon the banks of the south fork of the Coeur d'Alene river, at a point more than 50 miles above where the river flows by and through the lands of the complainant Doty, and a greater or less distance above where it flows through the lands of the other complainants and their alleged associates, a mill or concentrator, where it has ever since continued to treat the ores, with the results afterwards stated; that, from the time of the erection of the concentrator or mill, that company has run through it, and is still running through it, about 2,000 tons of ore per day, about 75 per cent. of which consisted and still consists of rock and earth, which, after the lead, silver, and other valuable minerals are extracted, is cast by the defendant into the said south fork of the river or upon the banks thereof, which deposits are from time to time, by the natural action and drainage of the waters, washed and carried into the south fork and thence into the Coeur d'Alene river, resulting in the filling up of its channel and the poisoning and polluting of its waters; that the said company's method of working the ores requires the flowing of a large stream of water through its concentrator in the process of treating the ores, which water becomes so charged with lead and other poisonous material that it is rendered destructive to all vegetation with which it comes in contact, and poisonous to any animals which drink of such waters or eat of any vegetation which has been overflowed by them, or which have been grown upon the lands through which such waters have percolated or flown, and is poisonous to fish within said waters; that such waters, after so flowing through the said concentrator and being so polluted and poisoned, have been by the said company, during the times stated, and still are and will continue to be, unless enjoined therefrom, turned into the said south fork of the Coeur d'Alene river, whence the same naturally flows by and through the lands of the complainants and their alleged associates; that the continued depositing by the Bunker Hill Company of crushed rock and material and debris into the said south fork of the Coeur d'Alene river and upon the banks thereof has filled up the channel of the south fork, and since about the year 1900 has been and is now rapidly filling up the channel of the river itself, where the same flows by and through the lands

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of the complainants and their alleged associates, to the extent that the river is no longer well defined and its banks rise but little above the stream at low water, so that any slight rise in its waters causes it to overflow its banks and spread over the lands of the complainants and their alleged associates; that the waters of the river are so poisoned and polluted by the aforesaid acts of the Bunker Hill Company and the other defendants that when the river overflows, its waters poison and destroy all vegetation with which they come in contact, and, when they recede, leave a deposit of poisonous sediment that not only destroys vegetation and animal life with which it comes in contact, but destroys and tends to unfit the land for further cultivation.

The bill further alleges that the defendant the Gold Hunter Mining Company, about the year 1886, became the owner of certain mining claims in Shoshone county, under the mining laws of the United States, situated near the town of Mullan, upon the south fork of the Coeur d'Alene river, and for the purpose of treating ores therefrom did likewise erect upon the banks of the south fork, near the town of Mullan, and at a point about 20 miles above where the mill and concentrator of the Bunker Hill Company is situated, and has continued to treat its ores in the same manner and with the same results as is alleged with respect to the Bunker Hill Company; that the defendant Federal Mining & Smelting Company, about the year 1902, acquired certain mining claims, by conveyance from former owners, situate in the hills and mountains overlooking the aforesaid Milo creek, and in the hills and mountains overlooking Canyon creek, a tributary of the south fork of the Coeur d'Alene river, at or near the town of Mace, and have ever since been the owners of two large concentrators or mills, one situate near the town of Kellogg, on the south fork of the river, and the other at the town of Mace, on Canyon Creek, through which defendant has run 2,000 tons per day in like manner and with like results as is alleged with respect to the Bunker Hill Company, and threatens that it will continue to do so indefinitely.

That the defendant Hecla Mining Company, about the year 1898, became the owner of certain mining claims situate in the mountains and hills overlooking the said Canyon creek, at or near the town of Burke, about 20 miles above the mill or concentrator of the Bunker Hill Company, and, for the purpose of treating its ores, erected at or near the town of Burke, and on the banks of Canyon creek, a mill or concentrator, through which it has since run 800 tons of ore per day with like results and in like manner as is alleged with respect to the Bunker Hill Company, and that it will continue so to do indefinitely.

The bill alleges that for...

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