186 F. 789 (9th Cir. 1911), 1,738, Bliss v. Washoe Copper Co.

Docket Nº:1,738.
Citation:186 F. 789
Party Name:BLISS v. WASHOE COPPER CO. et al.
Case Date:March 06, 1911
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 789

186 F. 789 (9th Cir. 1911)

BLISS

v.

WASHOE COPPER CO. et al.

No. 1,738.

United States Court of Appeals, Ninth Circuit.

March 6, 1911

Page 790

         The appellant, a citizen and resident of the state of Idaho, commenced this suit in the court below on the 4th day of May, 1905, against the appellees, each of which is a corporation of the state of Montana, to obtain an injunction permanently restraining them from operating a large smelting plant known as the 'Washoe Smelter,' situated about a mile and a half southeast of the city of Anaconda, Mont., and from there treating certain ores containing poisonous substances. In his bill the complainant alleged: His ownership of 320 acres of land situated in Deer Lodge Valley, Mont., and about 5 miles in a northeasterly direction from the said smelter. That during the year 1902 the defendant companies constructed the smelting plant mentioned on the south slope of Deer Lodge Valley contiguous to a large farming neighborhood, consisting of over 100 square miles of improved farming lands, all of which is in that portion of Deer Lodge Valley affected by the smoke and fumes from the said smelter, and which portion is in the bill designated as the 'Smoke Zone.' That at all times prior to the construction of the Washoe Smelting Plant the portion of the valley designated as the 'Smoke Zone' was a rich and fertile farming country, well watered, and well adapted to raising sheep, cattle, horses, and other live stock, as well as producing large and valuable yields of wheat, timothy, clover, alfalfa, wild hay, and such other grains and cereals as can be profitably grown in that latitude, and was

Page 791

also well adapted to the raising of profitable crops of berries, garden truck, vegetables, and other farm products, for all of which there was a ready sale at profitable prices. That a large number of the farmers referred to settled in the valley as early as 1865, and proceeded to cultivate, fence, and improve their lands, and to build many good substantial homes there, and it became a rich and prosperous neighborhood, and would continue to be such but for the acts of the defendants complained of. That the farmers residing in the 'Smoke Zone' number over 100, and own and possess over 50,000 acres of improved tracts, keeping thereon a large amount of stock, horses, cattle, and swine, pursuing the business of farming as a means of livelihood. That all of said farmers are similarly situated as the complainant and are similarly affected by the smoke and fumes from the said smelting plant. That during the summer of the year 1903 the defendants remodeled their said smelting plant, completing such remodeling about September 1st of that year by constructing a large brick stack and connecting it by large flues with the smelting plant, since which time they have been and are now engaged in mining and producing large quantities of ore, amounting to about 7,000 tons a day, which ores contain large quantities of arsenic, sulphur, antimony, copper, and other noxious and poisonous substances, and which ores the defendants there treat, reduce, and refine, thereby causing large quantities of sulphur, sulphuric acid, sulphurous acid, arsenic, copper, and other noxious and poisonous substances to be freed and to be carried through the flues connected with the smelter to the smelter stack and there discharged into the atmosphere, which noxious and poisonous substances are carried by the winds and air currents over, above, and upon that portion of the Deer Lodge Valley known as the 'Smoke Zone,' and upon the land of the complainant, depositing large quantities of sulphurous acid, sulphuric acid, sulphur dioxide, arsenic, antimony, copper poisons, and other noxious and poisonous substances over the said 'Smoke Zone,' and more especially upon the complainant's said land, poisoning, burning, and dwarfing the crops growing on the land during the summer season of 1904, and poisoning all the soil in the 'Smoke Zone' and the hay, grasses, and grain growing thereon, poisoning all the live stock in the said valley, causing large numbers of horses, sheep, and cattle and swine so poisoned to sicken and a great many to die from the effect of the poisoning, to the extent that the land in the said 'Smoke Zone' is rendered wholly worthless for stock raising or farming purposes, so long as the defendants continue to operate their said smelter in the treatment of said ores. That the said precipitations of said poisonous and noxious substances from the said smelter fumes and smoke are insidious and cumulative, and great damage is done before the farmers are aware of the presence of the said poisonous and noxious substances so precipitated, as its presence is only shown by general sickness of live stock, and the general burnt, stunted, and dwarfed condition of the crops and vegetation. That each year, if the smelter continues to be operated, the soil of the said 'Smoke Zone' would become more highly impregnated with such poisonous substances, and that finally no crop or vegetation can be produced there. That more than $2,000,000 worth of real and personal property, owned by the farmers, is situated in the 'Smoke Zone,' and is now being damaged by the smelter fumes and the poisonous ingredients contained therein, and will ultimately be entirely destroyed by the continued operation of the said smelter. That the homes of the said farmers will be destroyed, and that they will be compelled to migrate. That the poisonous ingredients contained in the fumes of the said smelter have killed nearly all the trees in the 'Smoke Zone,' and have killed and injured the trees and timber for many miles around the plant, rendering Deer Lodge Valley and the country adjacent to the smelter 'barren and desert like.' That the rental value of the complainant's land prior to the construction and operation of the said Washoe Smelter was $1,000 per annum, and that its present value will not exceed $300 per annum, because of the said noxious and poisonous substances precipitated thereon from the smoke and fumes of the said smelter. That the complainant's land prior to the acts complained of was of the value of $12,000 and was capable of producing large quantities of hay, grain, and other farming products of good quality, and will continue to do so but for the alleged wrongful acts of the defendants, which have already

Page 792

damaged his land to the extent of $20 an acre. That the crop season of Deer Lodge Valley commences about the 1st of May and continues until about October 1st, and that if the said smelting plant continues in operation during the summer season all the crops in the 'SmokeZone' will either be destroyed or be so injured in quality that they cannot be consumed or sold, and that the damages which will be caused by its continued operation are of such a nature that it would be incapable of correct computation, and that neither the complainant nor the other farmers referred to have any adequate means of arriving at the damages which may be hereafter sustained by the lands and the crops growing thereon. That, in order to prepare damage suits for trial, it is necessary to procure chemical tests of the lands and grasses, as well as the smoke emitted from the smelter, and to procure the services of veterinary surgeons to examine the live stock affected and dying from the mineral poisons emitted from the smelter, and to procure chemical analysis of portions of animals infected by said poisons, and which have died as a result thereof. That it requires several thousand dollars to prepare a suit for trial on the part of any one farmer, and that, as such actions at law would greatly multiply, it would be difficult to obtain qualified jurors to try them, and the expense thereof would be so great that the complainant would be unable to institute or maintain such actions. That each crop season will bring new causes of action in favor of the complainant, with the other farmers mentioned, against the defendants, growing out of the continued operation of said smelter, and that the defendants will continue its operation and alleged wrongful acts complained of unless restrained from so doing.

         In an amendment to his bill, the complainant alleged, among other things: That the defendants pretend that the business of smelting and reducing the ores of the character of those being treated at the Washoe Smelter has been carried on at substantially the point where that smelter is located for a period of more than 20 years; whereas, the complainant charges the truth to be that no smelting has been carried on at or near the point where the said Washoe Smelter is constructed at any time prior to its construction there, and that the smelting plant operated by the Anaconda Mining Company and the Anaconda Copper Mining Company, designated as the 'Old Works,' was constructed at a point north of and one mile distant from the said Washoe Smelter, on the north side of Warm Springs Creek Canyon, where the prevailing winds during the operation of the smelting plant constructed by the Anaconda Mining Company was westerly and northerly over the mountains and foothills lying adjacent to the aforesaid 'Smoke Zone,' and precipitated the sulphur, sulphuric acid, sulphurous acid, arsenic, copper, and other noxious and poisonous substances, which were freed from the ores being treated at the said Old Works, upon the foothills and mountains lying northerly and westerly, and adjacent to that portion of Deer Lodge Valley termed the 'Smoke Zone,' and that no known damage was caused by the operation of the smelting plant known as the Old Works. That the site of the Old Works is and was a fit and convenient place for the construction and operation of the said Washoe Smelting Plant for the reason that the prevailing winds are northerly and westerly over the foothills and mountains, and cause no damage to the complainant or to any property situated...

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