Beach v. Sterling Iron & Zinc Co.

• Decision Date: 08 November 1895
• Citation: 33 A. 286,54 N.J.E. 65
• Parties: BEACH et al. v. STERLING IRON & ZINC CO.
• Court: New Jersey Court of Chancery

33 A. 286

54 N.J.E. 65

BEACH et al.

v. STERLING IRON & ZINC CO.

Court of Chancery of New Jersey.

Nov. 8, 1895.

(Syllabus by the Court.)

Bill by Alfred E. Beach and others against the Sterling Iron & Zinc Company to restrain the pollution of a natural water course. Heard on pleadings and proofs. Decree for complainants.

The object of this bill is to permanently restrain what is alleged to be a nuisance, namely, the pollution of a natural water course. The complainant Beach is the owner, and the complainant manufacturing company is lessee in possession, of a paper mill intended for making white tissue paper, situate on the Wallkill river, at Hamburg, in Sussex county, and driven by the waters of that river, drawn out of an old artificial pond called the "Furnace Pond." The defendant is the owner of a mining property situate near the river, at a place called "Greenspot," about a mile and a half upstream, and southward from the paper mill. The complaint is that the defendant, in its mining operations, pumped out of its mine, and discharged into the river, upstream from the complainants' mill, large quantities of turbid and discolored water, which affected the whole stream, and rendered it unfit for use for making white tissue paper when it reached their mill. The answer puts the complainants on proof of the allegations of their bill; alleges that the water of the river as it flowed previous to its mining operations was unfit for use for making white paper; that its unfitness was not materially increased by the contributions from its mine; and that it had a right to continue its mining operations, although the effect was to increase the discoloration of the water of the river.

The bill was filed on the 21st of April, 1893. On that day an order to show cause why an injunction should not issue, with an order for interim restraint "against corrupting or discoloring the water in the Wallkill creek, so as to prevent the complainant the Sparks Manufacturing Company from carrying on its business of manufacturing white tissue paper in its accustomed manner," was made, returnable the 1st of May then next. On the 25th of April, upon ex parte application, and affidavits to the effect that the flow from the mine was discolored only for a short time at intervals, an order was made, modifying the interim restraint embodied in the order of April 21st, as follows: "That if in the course of pumping from its mine the defendant shall pump discolored water, and shall immediately notify the persons in charge of the complainants' factory of such discoloration before the discolored water shall reach the factory, in such case the restraining order shall be of no effect." On the 1st of May the hearing of the original order to show cause was postponed until the 15th of May, upon terms that the defendant give bond to secure the complainant against damages, and on the 15th of May it was further postponed, and from time to time thereafter until the 28th of June, when an order was made that an injunction do issue restraining the defendant from corrupting or discoloring the water of the creek above the paper mill of complainant, so as to damage complainant in its business of manufacturing white tissue paper in its customary manner, but that the operation of the injunction be suspended until the 17th of July next, in order to give the defendant an opportunity to provide for the disposition of its foul water, or otherwise avoid the injury to the complainant complained of. On the 17th of July a motion was made to further extend the operation of the injunction, which was denied, and an injunction was issued, according to the order of June 28th. The cause was duly referred, and was heard by evidence on the 2d and 3d of November, the 27th and 28th of December, 1893, the 10th and 11th of April. 1894, and on the 2d of October, 1895.

Theodore E. Dennis, R. L. Lawrence, and T. N. McCarter, Sr., for complainants.

Charles D. Thompson and Gilbert Collins, for defendant.

PITNEY, V. C. (after stating the facts). The material facts of the case are undisputed. The only dispute is as to the degree of discoloration caused by the defendant's operations, and the length of time over which such discoloration extended.

The facts clearly established are as follows: The Wallkill river rises in the southern part of Sussex county, and flows upon a course of nearly north, passing through the villages of Franklin and Hamburg. At the latter place is situated an artificial pond, called the "Furnace Pond," caused by an old dam, upon which for several years has been a paper mill, driven by the waters of the river from that pond. The complainant Beach purchased this water power, and lands connected with it, in the summer of 1891, for the purpose of erecting a plant for the manufacture of what is known as "white tissue paper." Associated with him were two gentlemen by the name of "Sparks," who had previously been engaged in the business of waxing white tissue paper according to a process which they controlled, and the project was to both manufacture and wax for market white tissue paper. For that purpose the corporation was formed, of which Mr. Beach and the Messrs. Sparks were stockholders, and the latter were the active managers. A large amount of money was spent in erecting a plant between the date of the purchase and the 1st of February, 1892, when they commenced the manufacture of white tissue paper, and carried it on with success for about a year. The manufacture of such paper requires a perfectly clear, pure water, and, before purchasing the Hamburg water power, the complainants inspected the stream, and inquired as to its character for clearness, and satisfied themselves that they would be able to use it for making white tissue paper without incurring the expense of filtration, and their experience for a year proved that their expectations were just. In the month of February, 1893, complaints began to come in from the purchasers of their paper that it was deteriorating in the matter of whiteness, and they investigated the cause. The pond was frozen over, but they knew by reputation that mining operations were being carried on at Greenspot by the defendants, and they went there March 1st, and found a stream of highly-colored water flowing from the defendant's mine shaft into the river, traced its effect in discoloration to their pond, and, by subsequent observations by themselves and others in the neighborhood, traced its effect, not only in and through the Furnace pond, but for miles down the river, to the north of Hamburg. In fact, several respectable and credible witnesses called by the complainants testified to the discoloration of the water in the Furnace pond and beyond, and the complainants were stopped by the court from producing further evidence on that subject in the opening of their case. Several witnesses called by defendant, among them its superintendent, corroborated this evidence, and there was no attempt to meet it. The color was a peculiar reddish yellow tint, which was in marked contrast with the discoloration due to the ordinary road and field wash after a heavy storm or spring thaw. This peculiar discoloration continued throughout the month of March, and, with some intermissions and variations in degree of discoloration, through the month of April. Complainants, early in March, were obliged to stop the making of white tissue paper. Negotiations between the parties for some arrangement of the matter failing, the bill was filed on the 21st of April, 1893. The immediate origin of the discoloration was as follows: The defendant corporation was organized by two gentlemen by the name of "Heckscher" and two by the name of "Wetherill," for the purpose of reaching and working a bed of franklinite ore, which had been located by boring explorations at a depth of about 1,000 feet below the surface near this point called "Greenspot." It was the continuation of a seam of ore for many years worked to the southwest of Greenspot by two companies, one of which, viz. the Lehigh Zinc & Iron Company, was owned and controlled by the Heckschers and Wetherills. In the spring or early summer of 1891 the defendant commenced to sink a perpendicular shaft, known as the "Parker Shaft," 10 by 20 feet in diameter, and, after passing through a small amount of superincumbent earth, struck solid limestone rock. It continued the working without cessation until August 11, 1892, when, having attained a depth of 560 feet (many feet lower than the bed of the Wallkill), the workmen struck a water-bearing fissure or rent in the rock, which instantly flooded the mine, and drove them out. Previous to that time they had encountered small seams or fissures from time to time, producing a little water, and sometimes a little mud, which they pumped up, of course, carried through a trough or trunk several hundred feet westerly toward the Wallkill till it reached a small spring run, where it was discharged, and from thence it ran into the Wallkill. The amount of water up to August was small, and its discoloration was slight, so that it was not felt or observed by complainants. The influx in August, 1892, was discolored by a fine clay, amounting almost to a pigment, having a high reddish yellow tint, and intermixed with a small quantity of very fine sand. This water rose to within 40 feet of the surface, and resisted all attempts to lower it by the pumps then in use, and until very large and heavy pumps were introduced. This was done in September. After the shaft filled with water, there was no further movement, it became perfectly quiet, and the clay and sand began to settle, so that the water in the upper reach of the shaft became comparatively clear. The first water that was discharged after heavy pumping commenced came from near the top, and was but slightly discolored, such discoloration being due to the disturbance of the clay and sand which had settled on the timbering of the...