Ducktown Sulphur, Copper & Iron Co. v. Barnes

• Decision Date: 27 October 1900
• Citation: 60 S.W. 593
• Parties: DUCKTOWN SULPHUR, COPPER & IRON CO., Limited, v. BARNES et al.
• Court: Tennessee Supreme Court

60 S.W. 593

DUCKTOWN SULPHUR, COPPER & IRON CO., Limited, v. BARNES et al.

Supreme Court of Tennessee.

October 27, 1900

Appeal from chancery court, Polk county; T. M. McConnell Chancellor.

Action by the Ducktown Sulphur, Copper & Iron Company, Limited against J. H. Barnes and others. From various decrees in favor of defendants, and from a decree directing a master to report on the question of the amount of damages sustained the complainant appeals. Affirmed by the court of chancery appeals, and complainant appeals. Modified.

The following is the opinion of the court of chancery appeals (WILSON, J.):

"The bill in this case was filed by the complainant to enjoin the prosecution of ten separate suits for damages instituted against it by the defendants in the circuit court of Polk county. The matters in dispute between the complainant and all the defendants, except three, have been settled by action taken in the court below, and since the decree there, and the case is before us on appeal of complainant from the decree of the chancellor ordering an account in respect to damages of three of the defendants.

"The complainant is a corporation of Great Britain, engaged in mining copper at Ducktown, Polk county, this state. The bill avers, in substance: (1) That it is a corporation organized under the laws of Great Britain. (2) That since 1891 it has carried on mining operations in Ducktown, Polk county, Tennessee, mining copper ores, roasting, smelting, and reducing the same to refined copper, and that it mines daily about 250 tons of ore, and gives employment to six or seven hundred persons, paying them in wages monthly some $17,000. (3) That Ducktown is situated in the mountains of Polk county, near the state lines of Georgia and North Carolina, and in a sort of basin in the mountains, and that the soil is thin and not adapted to farming purposes and the growth of cereals, and the value of the lands consists in its minerals, which, so far as developed, are its copper ores. (4) That, aside from mining these ores, the country is incapable of sustaining a population of any considerable magnitude. (5) That another corporation, known as the Pittsburg & Tennessee Copper Company, is engaged in copper mining in Ducktown, and that it uses the same processes used by complainant in reducing its ores. (6) That the copper ores at Ducktown contain a considerable quantity of sulphur, or, in other words, the ores are sulphurets. (7) That the Ducktown copper mines were discovered in 1849, were developed in the early fifties, and that mining operations were carried on except a short period about the close of the war, until 1879, when the Union Consolidated Mining Company, the predecessor of complainant, and which operated practically the same mines now operated by complainant, failed and went out of business, and thereafter mining operations ceased until they were resumed by complainant, and the large mining population and those dependent upon them, aggregating several thousand, were forced to abandon their homes and move elsewhere during the suspension of mining operations, and Ducktown became a deserted village. (8) That for twenty years before this the Union Consolidated Mining Company had operated its smelters, burned its roast piles, and used the processes now used by complainant without let or hindrance or complaint from defendants or other parties; and it is averred that complainant succeeded to all the rights, privileges, and estates, legal or equitable, had or held or enjoyed by said company. (9) That the roast piles and smelters used by said company emitted smoke and gases, as do those used by complainant; that the contiguous timber was then more or less affected, and for miles around the original forest was cut down and converted into charcoal, and in that form or otherwise used in carrying on the mining operations, or for fuel in supplying domestic wants; and that whatever inconveniences were endured were more than compensated by the incidental advantages, and this fact was fully recognized, assented to, and acquiesced in by the entire community and population. (10) That between the time of the suspension of mining operations by the Union Consolidated Mining Company and their resumption by complainant a growth of young timber sprang up, and attained a height sufficient to abate and impede the growth of the wild grasses useful to support stock, and for which otherwise than the mining purposes the country is alone adapted; and it is alleged in the bill in this connection that, aside from the value imparted to the land by the operation of the mines, it has none, except for grazing, and that its grazing uses were destroyed by this young timber. (11) That in this condition complainant found Ducktown when it restored mining operations in 1891. (12) That complainant knew or had learned of the mining operations and processes employed by the Union Consolidated Mining Company and other companies at this point, and that said companies had acquired a right by prescription and user to the processes employed, including roasting ores, emitting gases, etc., and avers that it succeeded to all the rights of the Union Consolidated Mining Company, and, moreover, that when it was about resuming mining operations the entire population, including defendants, were rejoiced, and gave their encouragement, so far as complainant ever heard, and actually aided in the undertaking, and thus encouraged and aided; and, believing that it could make its proposed mining operations profitable to itself as well as to the public interest, it proceeded to open up the mines, erect buildings, and make improvements, expending in doing so several hundred thousand dollars. (13) That for some time it conducted its mining operations without complaint, and apparently to the satisfaction of everybody; but, as it was impossible and inexpedient to give official position and recognition to all who desired it, dissatisfaction and disaffection arose among the dissatisfied. (14) That the enlarged operations carried on by complainant caused smoke and gases to be emitted, as, in a manner, had always been the case in the reduction of the ore, and the smoke and gases began to affect the timber on adjacent land, and thereupon the disgruntled aspirants for positions began to stir up opposition by public meetings; and the result was that the malcontents thus produced fraudulently confederated together to vex, harass, and annoy complainant with a multiplicity of suits, and to carry out their scheme of bringing suits and onerate complainant with enormous cost. They brought suits in the circuit court of Polk county against complainant, for the most part on the pauper's oath, alleging and claiming damages on account of the smoke and gases from the works of complainant injuring their lands or the timber growing thereon, and suits for damages more than quadrupling in their claims the cost or assessed value of their lands; and it is averred that, in order to fully carry out their fraudulent scheme to vex and annoy it, the defendants entered into a champertous and illegal contract with certain attorneys employed to prosecute said suits, wherein it was agreed that their attorneys were to receive contingent fees for their services (that is, a per cent. of their recovery), and that this agreement was entered into, as a class, by the defendants, or some of them. (15) That this champertous arrangement was kept concealed from complainant until quite recently. (16) That in confirmation of its charge of a fraudulent confederation on the part of defendants to vex, harass, and annoy it, the Pittsburg & Tennessee Copper Company carries on mining operations and the reduction of its copper ores under the same methods used by complainant, and in doing so causes smoke and gases to spread over the lands of defendants, about which complaint is made against complainant, and yet no damage suits have been brought against said company; and this fact it alleges not to impute liability to said company, but to show the animus of the defendants towards the complainant. (17) The bill then sets out the quantity of land owned by each defendant suing it, and the assessed value of the land owned by each. In this paragraph of the bill it is alleged that Wm. Madison brought his action for injury to timber, growing crops, etc., on 40 acres of land in Tennessee, of the assessed value of $40, and for damages to timber, growing crops, etc., on 100 acres in Georgia, of the value of $100; that defendant Fortner brought his suit for injury to timber, etc., on 160 acres of land in Georgia, of the assessed value of $160; and that defendant Mrs. Margaret Madison brought her suit for injury to timber, etc., on 90 acres in Georgia, of the assessed value of $150 (18) That the cause of action in each of the ten cases against the complainant is identical, and arises from the same alleged cause; that the value of the several pieces of land affected aggregates some $1,900; that separate actions were brought; and that numerous witnesses will be put under subp na for the purpose of harassing complainant, and placing on it enormous costs in said suits,--the defendants, for the most part, bringing their suits under the oath prescribed for poor persons.

"The bill then, after stating that the defendants, or some of them, do not own the fee in the land, the timber on which they allege was damaged, avers that the lands of Fortner and of William and Margaret Madison are in Georgia, and the land of A. J. Bell in North Carolina, and it is insisted that neither the circuit court of Polk county, Tennessee, nor the chancery court of said county, has jurisdiction to try and determine the question of damages raised by the suits of said parties, inasmuch as

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