American Smelting & Refining Co. v. Godfrey

• Decision Date: 04 November 1907
• Docket Number: 2548-2551.
• Citation: 158 F. 225
• Parties: AMERICAN SMELTING & REFINING CO. et al. v. GODFREY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F. 225

AMERICAN SMELTING & REFINING CO. et al. v. GODFREY et al.

Nos. 2548-2551.

United States Court of Appeals, Eighth Circuit.

November 4, 1907

Waldemar Van Cott (E. M. Allison, Jr., and William Riter, on the brief), for appellant Utah Consolidated Mining Company.

Andrew Howat and W. H. Dickson (H. R. Macmillan, A. C. Ellis, A. C Ellis, Jr., and R. G. Schulder, on the brief), for appellant United States Smelting Company.

John A Street (William H. Bramel, on the brief), for appellant Bingham Consolidated Mining & Smelting Company.

William H. King (Joseph L. Rawlins, on the brief), for appellees.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

RINER District Judge.

This is an appeal from a decree entered by the Circuit Court for the District of Utah, granting an injunction. It is alleged in the bill that the complainants, James Godfrey and four hundred and eight others, who joined with him in the bill are severally the owners of, and are in possession of certain farms described in the bill, situated in Salt Lake County, Utah; that they were, at the time the bill was filed and for more than two years prior thereto, occupying their respective farms as homes for themselves and families, and engaged in cultivating their farms; that, but for the injuries complained of, the farms would have been highly productive in fruits, vegetables, cereals, and grasses of great value; that the farms had been brought to a high state of cultivation, and contained many fruit and ornamental trees, also had houses, barns, and other valuable improvements located thereon; that they also kept on their respective farms domestic animals, such as horses, cattle, and sheep, useful in husbandry. It is further alleged that the defendants each owned a smelter, situated in Salt Lake county, and in proximity to each other and to the complainants' farms; that wrongfully, and in disregard of the rights of the complainants, the defendants, respectively, have maintained and operated, and still maintain and will continue to operate, the smelters as they have been operated, and as they severally threaten to continue to operate the same, which have been, are, and will be injurious to the health and offensive to the senses of the complainants and each of them; that the smelters are and have been employed in the reduction of ores of lead or copper, or both, and known as sulphide ores, and also containing iron sulphates, together with arsenic, antimony, and zinc; that in the process of reduction the sulphur in the ores is reduced and converted into sulphur dioxide, all of which is permitted to and does escape in a gaseous form into the atmosphere, and is borne by the winds, together with the dust and fumes of arsenic and antimony over and upon the farms of complainants; that more than 1,000 tons of sulphur dioxide thus daily escapes from the smelters, and is deposited upon the lands in the neighborhood of the smelters, including the farms of the complainants; that, coming in contact with the moisture in the atmosphere and falling upon the soil or vegetation, the sulphur dioxide becomes sulphurous acid, and to some extent is converted into sulphuric acid, injurious to and destructive of both animal and vegetable life; that the fumes and gases escaping from each of the smelters are commingled in the air and together work their injurious effects upon the farms, property, and health of complainants; that the fumes, gases, and dust permitted to escape and to be deposited upon the farms cause the destruction of fruit and ornamental trees and various kinds of fruits, cereals, and grasses growing on the farms, or so poisons the same as to render them unfit for use; that the sulphur dioxide and other fumes entering the houses of complainants and polluting the atmosphere are offensive to the senses, injurious to the health of the complainants and their families; that the fumes, gases, and dust, either directly or by poisoning the grasses upon which they fall, have caused and are causing many of the domestic animals of the complainants to sicken and die. It is further alleged that complainants have no adequate remedy at law; that each of the defendants threatens to enlarge the capacity of their smelters and increase the amount of these ores to be smelted, thereby augmenting the injuries to complainants; that the injury and damage are oppressive and cumulative, and the grievances are and will be constantly recurring; that relief in actions at law could only be obtained by a multiplicity of suits, and the difficulty and expense attending the same in making proof of damage would render such attempts at relief futile; that the area of land injuriously affected is being constantly increased; that the damage suffered by complainants and others similarly situated in the aggregate exceeds the value of the smelters. The defendants each admit in their answers that they own and are operating the smelters as charged in the bill, denying at some length and in different forms all of the other allegations of the bill. The complainants replied to the answers, and the case was sent to an examiner to take and report the testimony. Upon the report of the examiner being filed, the case was argued and submitted, and on the 5th of November, 1906, a decree was entered by the Circuit Court, 'enjoining each of the defendants from the further roasting or smelting of sulphide ore carrying over 10 per cent. sulphur, and at their present locations, so as to discharge into the atmosphere the sulphur in the form of a gas, and from the further discharging into the atmosphere of arsenic; provided that the defendants or any one or more of them may at any time hereafter apply to the court, upon due notice to the complainants, for a modification or suspension of this injunction upon a showing, which the court may deem sufficient, that conditions have been so changed that the discharge of such sulphurous or arsenical fumes into the air by them, or either of them, may be resumed or otherwise conducted, so as not to create or continue, or contribute to create or continue, the nuisances complained of. ' From this decree each of the defendants appealed, but the appeal of the American Smelting & Refining Company was dismissed in this court upon a stipulation of the parties, so that the cause is here for review only upon the appeals taken by the three remaining defendants.

The question of the jurisdiction of the Circuit Court in respect to the amount in controversy was raised by two of the appellants at the final hearing, and is again urged here. It will be first disposed of, because, if the Circuit Court was without jurisdiction, it was not within its province to determine the other questions raised, and the cause would have to be reversed, with instructions to dismiss the bill for the want of jurisdiction. In support of their contention, it is insisted by appellants, that 'the real matter in controversy is the damage claimed to be suffered by the several appellees, and the value of appellants' right to operate their smelters does not constitute the object of the suit. ' It is admitted that the smelters, taken either singly or in the aggregate, are worth more than the jurisdictional amount, and it is also admitted that the value of the right or opportunity to continue to run the smelters, or any one of them, is worth more than the jurisdictional amount, but it is said that the real thing that the appellees sue for, and the value of which is not shown, is the privilege of being free from the nuisance of smoke from the smelters. This contention cannot be sustained. The rule, as we understand it, is that when an injunction is asked against the erection and maintenance of a nuisance, it is not important to discuss what kind of damage would result if the nuisance were operated, but rather what the cost of the alleged nuisance will be. Rainey v. Herbert et al., 55 F. 443, 5 C.C.A. 183. The general principle is stated by the Supreme Court in the case of Mississippi M.R. Co. v. Ward, 2 Black, 485, 17 L.Ed. 311, as follows: 'He seeks redress of a continuing trespass and wrong against him and acts in behalf of himself and of others who are or may be injured. But the want of a sufficient amount of damage having been sustained to give the federal courts jurisdiction will not defeat the remedy, as the removal of the obstruction is the matter of controversy, and the value of the object must govern.'

We have examined the cases called to our attention by counsel for appellants at the argument, and do not think they conflict with this rule. The present suit may well be distinguished from cases upon a money demand, where the matter in dispute is the debt claimed, and cases sounding in damages where the damages claimed give jurisdiction, and those where the value of the interest or estate claimed, as in ejectment suits determines the jurisdiction, and suits to quiet the title to parcels of real property, or to remove a cloud therefrom, by which their use and enjoyment by the owner are impaired, which are brought within the cognizance of the court under the statute only by the value of the property affected; and also cases where, as in Eaton v. Hoge, 141 F. 64, 72 C.C.A. 74, it is said, 'in a suit by the several owners of water rights in a stream, or joining as claimants for convenience only, to enjoin the obstruction of the stream or the diversion of water therefrom by defendants, the matter in dispute must exceed two thousand dollars exclusive of interest and costs as to each complainant. ' It has also been held repeatedly by the Supreme Court that the distinct and separate interests of complainants in a suit for relief against assessments cannot be united for the purpose of making up the amount...