Bliss v. Anaconda Copper Min. Co.

• Decision Date: 25 January 1909
• Citation: 167 F. 342
• Parties: BLISS v. ANACONDA COPPER MINING CO. et al. [d]
• Court: U.S. District Court — District of Montana

167 F. 342

BLISS v. ANACONDA COPPER MINING CO. et al. ^[d]

United States Circuit Court, D. Montana.

January 25, 1909

R. L Clinton and C. M. Sawyer, for complainant.

C. F Kelley, Forbis & Evans, and A. J. Shores, for defendants.

HUNT District Judge.

Fred J Bliss, a resident and citizen of Idaho, instituted this suit on the 4th day of May, 1905, against the Anaconda Copper Mining Company and the Washoe Copper Company, Montana corporations, and prayed for permanent injunction forever restraining and enjoining the defendants from operating a certain smelting plant situated near the city of Anaconda Mont., and from treating ores described as containing poisonous and deleterious substances, and for general relief.

The substance of the more important allegations of the bill is: That complainant owns about 320 acres of land, situated about five miles in a northeasterly direction from the Washoe copper smelter, operated by defendant Anaconda Copper Mining Company, in Deer Lodge valley, Deer Lodge county, Mont. That before the construction of the said smelting plant, Deer Lodge valley, and a large area thereof designated by complainant as the 'smoke zone,' was a rich and fertile farming country, well watered, adapted to the raising of all live stock, and that there was a ready sale at good and profitable prices for all farming products and live stock raised in the valley. That commencing about September 1, 1903, and ever since, defendants have been treating and reducing in the Washoe smelter about 7,000 tons of ore a day, containing large quantities of arsenic, sulphur, and other noxious and poisonous substances, and that the said smelter was constructed so near to the farming neighborhood described that large quantities of sulphur, sulphuric acid, sulphurous acid, arsenic, copper, and other poisonous substances were carried out through the flues connected with a large smelter stack and discharged into the atmosphere, which substances were carried by the wind over and upon the said farming region in Deer Lodge valley, depositing large quantities of acids and poisons over the said portion of the Deer Lodge valley, and more especially upon complainant's lands, poisoning the pastures and burning and dwarfing the crops growing on his premises during the summer of 1904, and poisoning all the soil of said premises and of Deer Lodge valley in the 'smoke zone,' and the hay, grasses, and grain growing thereon, poisoning all the live stock in the said area, causing large numbers of horses, sheep, cattle, and swine, so poisoned, to sicken, and a great many to die, so that the said area of Deer Lodge valley is rendered wholly worthless for stock raising or farming purposes. That more than 100 farmers live in the said 'smoke zone' and own and possess more than 50,000 acres of improved farming lands therein. That all of said farmers are situated as is the complainant, and are similarly affected by said smoke and fumes from the Washoe smelter, and that the smoke and smelter fumes affect at the same time all of said farming neighborhood. That no one farmer could prepare his case for trial without great expense, and that, as several suits would have to be instituted from year to year to recover damages for loss of crops and live stock, complainant would not be able to institute or maintain the same, owing to the great expense entailed. That, if the smelter continues to operate, the lands and soil in the 'smoke zone' will each year become more highly impregnated with such poisonous substances, until no crop or vegetation can be produced. That more than $2,000,000 worth of real and personal property owned by the farmers is situated in the said 'smoke zone' and is being damaged and destroyed by the smelter fumes and poisonous ingredients contained therein, and that all will ultimately be entirely destroyed by the continued operation of the said smelter. That the homes of the farmers will be destroyed, and that they will be compelled to leave the Deer Lodge valley, because they will not be able to make livings for their families. That the smelter fumes and the poisonous ingredients have killed nearly all of the trees in the said 'smoke zone,' as well as injured and killed the timber and trees for many miles around the smelting plant, rendering the valley barren. That the rental value of the complainant's lands prior to the construction and operation of the smelter was $1,000 per annum, but that the present rental value would not exceed $300 per annum. That since 1903 the lands of complainant have been damaged to the extent of $20 per acre, or a total permanent damage to said lands of $6,400. That complainant and the other farmers similarly situated have no adequate remedy at law. That, if the smelter should close its operations, the farms, in the course of time, could be restored to their former productivity. That there are many places in Montana where smelting plants could be operated without damage to the adjacent country. And that the poisonous substances complained of can be precipitated and impounded at the said smelter plant with very little extra or additional cost to the defendants in the treatment of said ores.

The defendants, by answer, plead, among other things, that some quantities of the poisonous and noxious substances mentioned in the bill are discharged into the air through the stack of the Washoe smelter, and that the smoke containing such substances is carried and disseminated over a very large area of country, including, at times, the area termed by the complainant 'smoke zone.' They deny, at length, that since 1903, any injury of any kind, whatsoever, has been done or will be done to the complainant's property, or to the property of anybody in the Deer Lodge valley, by the smelter emanations. They plead that they have no other works available for smelting ores mined by them, that they have adopted the most modern methods for treating ores, and they aver their willingness to continue to do all within their power to prevent possible injury or annoyance to the inhabitants of the valley. They allege solvency, and set up in detail equitable defenses, saying, in effect, that, if the works were to be closed, great injury would be done to the cities of Anaconda and Butte, and to Deer Lodge and Silver Bow counties, and to the interests of the people residing in those and other parts of the state, and that the revenues of the state would be affected; deny that the deleterious substances mentioned in complainant's bill could be precipitated or impounded with better results than at present; and say that, if the plant should have to be removed, it would amount to a practical destruction of their property, and that, if the smelter is not allowed to operate, it will be impossible for the ores which are now treated at the Washoe smelter to be treated profitably elsewhere, and that it is impossible to select any more convenient or suitable site than the present. Complainant filed a replication, averring that he would maintain and prove the allegations of his bill.

After the presentation and decision of motions, trying the form and substance of various averments of the pleadings, the court, against the objection of the complainant, on December 18, 1905, referred the cause to the standing master in chancery, O. T. Crane, with directions to take the testimony and to find the material facts and report the same to the court. In pursuance of this order, the taking of testimony commenced on January 15, 1906, and continued from time to time thereafter until about March 20, 1907. Thereafter, arguments were had before the master, and on June 1, 1907, the case was submitted to him. On January 10, 1908, the master filed his findings.

The most important of the master's findings are: That the sulphur in the smoke from the smelter stack has caused no damage or injury to the crops on complainant's land since the remodeling of the Washoe smelter in 1903; but that arsenic was deposited at times upon complainant's farm in a way to injure the fodders grown thereon. That live stock was poisoned from the effects thereof, and a portion of the Deer Lodge valley was less valuable for stock raising and grazing purposes than it otherwise would be, by reason of the operation of the smelter. That the complainant, Bliss, has suffered special damage in the sum of $350, in the depreciation of the rental value of his land. That the farmers in the Deer Lodge valley constitute a neighborhood and that arsenical fumes emitted by the smelter more or less injuriously affect all hay, grass, and fodder in the neighborhood. That, if the smelter continues as now operated, the future crops will be more or less poisoned, and the live stock will be sickened; but that, if the smelter should close, the effect of the poisonous matters would cease. That there has been no injury to the soil of any permanent character. That in 1901 complainant's land was worth not to exceed $8,000, and at the time of the suit it was worth not to exceed $4,000, because of the improper farming done, and because of the injury from the arsenical emanations from the smelter. He finds that in 1904 the farmers of Deer Lodge valley formed themselves into an association to procure evidence and prosecute claims and suits against the defendants on account of the maintenance and operation of the smelter, that this suit was brought mainly for the benefit of the farmers' association, that Bliss himself was not a member thereof, and that the control of this action has been exercised by Smith, president of the farmers' association, in the interest of the association. The findings set forth: That the present processes used at the Washoe smelter are the only practical ones that can be followed in the reduction of the...