Edwards v. Allouez Mining Co.

• Decision Date: 09 January 1878
• Citation: 38 Mich. 46
• Court: Michigan Supreme Court
• Parties: Thomas W. Edwards v. The Allouez Mining Company

38 Mich. 46

Thomas W. Edwards v. The Allouez Mining Company

Supreme Court of Michigan

January 9, 1878

Submitted October 17, 1877

Appeal from Washtenaw, the case having been transferred from Keweenaw.

Injunction. The writ was denied and complainant appealed. The facts are in the opinion.

Decree affirmed with costs.

Ball & Owen and G. V. N. Lothrop for complainant. Injunction to restrain a permanent injury to a man's land is a settled method of equitable relief, High. on Inj., § 485; 2 Story's Eq. Jur., § 928; Wood on Nuisances pp. 308, 353, 354; Hilliard on Inj., p. 280, n. a.; Livingston v. Livingston, 6 Johns. Ch., 497; McCord v. Iker, 12 Ohio 387. Continuous flowing of water, sand and slime upon land, destroying its timber and unfitting it for cultivation is a substantial appropriation of the land, and no remedy is complete which does not restrain it. Tyler v. Wilkinson, 4 Mason 397; O'Reilly v. McChesney, 3 Lans. 282; White v. Forbes Walk. Ch., 112; Dickinson v. Canal Co., 9 Eng. L. & Eq 513; Gardner v. Newburgh, 2 Johns. Ch., 161; Wood v. Waud, 3 Exch. 748; Hendrick v. Cook, 4 Ga. 241; Van Bergen v. Van Bergen, 3 Johns. Ch., 282; Pennsylvania v. Wheeling Bridge Co., 13 How. 564; Hammond v. Fuller, 1 Paige 197; Corning v. Troy I. & N. Factory, 40 N. Y., 191; 2 Story's Eq., § 929 b.

W. D. Williams for defendant in error. An injunction is never granted against conscience, Hine v. Stephens, 33 Conn. 497; Sheldon v. Rockwell, 9 Wis. 166; Warden v. Supervisors, 14 Wis. 479; Cobb v. Smith, 16 Wis. 661; Richards' Appeal, 57 Penn. St., 105; and the court will balance the inconveniences likely to come from granting it, Wood v. Sutcliff, 8 Eng. L. & Eq., 217; Hilton v. Granville, 1 Cr. & Ph., 297. See also Snow v. Parsons, 28 Vt. 459; Jacobs v. Allard, 42 Vt. 303; Jerome v. Ross, 7 Johns. Ch., 315; McElroy v. Goble, 6 Ohio St., 187; Weise v. Smith, 3 Or. 445; Huckenstine's Appeal, 70 Penn. St., 106; Dubose v. Levee Com'rs, 11 La. Ann., 165; Eason v. Perkins, 2 Dev. Ch., 38; Bradsher v. Lea, 3 Ired. Eq., 301; Keeny, etc., Mfg. Co. v. U. Mfg. Co., 39 Conn. 576; Hayes v. Waldron, 44 N. H., 585; Bear River Co. v. York Mining Co., 8 Cal. 327; Cary v. Daniels, 8 Met. 477; Hinckley v. Nickerson, 117 Mass. 213; Merrifield v. Worcester, 110 Mass. 216; Erie v. Canfield, 29 Mich. 484; Dumont v. Kellogg, id., 420; Robinson v. Baugh, 31 Mich. 295; Fox v. Holcomb, 32 Mich. 494; Parker v. Winnipiseogee, 2 Black 545; Welton v. Martin, 7 Mo. 307; Gould v. Boston Duck Co., 13 Gray 452; Springfield v. Harris, 4 Allen 496; Thornton v. Towns, 34 Ga. 125; Davis v. Winslow, 51 Me. 289.

Cooley, J. Graves, J. concurred. Campbell, C. J. dissented. Marston, J., did not sit in this case.

OPINION

Cooley, J.

This is an injunction bill, and the facts are very simple. Defendant at a cost of some sixty thousand dollars erected a stamp mill on the banks of Hill creek in the year 1874, and has since been operating it for copper mining purposes. As a result of its operations large quantities of sand are carried down by the waters of the stream and deposited on the bottom lands below. The evidence leads to the belief that it would be impossible to carry on the mining operations of the defendant with profit unless this is permitted. The year following the erection of defendant's mill, complainant purchased a piece of land through which the creek runs a short distance below the mill, and upon which the mill as operated was depositing sand. The land was not purchased for use or occupation, but as a matter of speculation, and apparently under an expectation of being able to force defendant to buy it at a large advance on the purchase price. It was offered to defendant soon after the purchase, and though no price was named, the valuation which has been put upon it by complainant and his witnesses is from three to five times what it cost him, and this perhaps gives some indication what his expectations were. The real value of the land except as a convenience in the business of defendant would seem to have been small. When defendant declined to purchase, this bill was filed. The prayer is that defendant be restrained from running or depositing its stamp sand on complainant's land, and from polluting the waters of the stream by its operations. This is a short statement of so much of the case as is material to what follows. The circuit judge refused the injunction prayed for, but ordered a reference to a jury for an assessment of damages.

There is no doubt that the operations of defendant, whether they inflict any serious injury on complainant or not, amount in effect to an appropriation of that portion of his property upon which sand is being deposited. Ashley v. Port Huron, 35 Mich. 296; Pumpelly v. Green Bay Co., 80 U.S. 166, 13 Wall. 166; Arimond v. Green Bay Co., 31 Wis. 316; Rowe v. Portsmouth, 56 N.H. 291; Woodward v. Worcester, 121 Mass. 245. It follows and is beyond question that complainant sustains a legal injury for which he is entitled to suitable redress. The only question on this record is, whether he is entitled to the special redress he seeks, namely, an injunction.

An injunction is not a process to be lightly ordered in any case. Where the effect will be to present to the owners of a valuable mill the alternative either to purchase complainant's lands at his own price or to sacrifice their property, any court having the power to order it ought very carefully to scrutinize the case and make sure that equity requires it. In theory its purpose is to prevent irreparable mischief; it stays an evil the consequences of which could not adequately be compensated if it were suffered to go on. Gilbert v. Showerman, 23 Mich. 448; Bemis v. Upham, 13 Pick. 169; Wason v. Sanborn, 45 N.H. 169; Cockey v. Carroll, 4 Md.Ch. 344; Nicodemus v. Nicodemus, 41 Md. 529; Burgess v. Kattleman, 41 Mo. 480; Owen v. Ford, 49 Mo. 436; Morris etc., Co. v. Central R. R. Co., 16 N.J.Eq. 419; Pettibone v. La Crosse etc., R. R. Co., 14 Wis. 443; Hine v. Stephens, 33 Conn. 497; Rhodes v. Dunbar, 57 Pa. 274; Richards' Appeal, id., 105; Harkinson's Appeal, 78 id. 196; State v. Judge, 16 La.Ann. 233; Goodell v. Lassen, 69 Ill. 145. The writ "is not ex debito justitice, for any injury threatened or done to the estate or rights of a person, but the granting of it must always rest in sound discretion, governed by the nature of the case." Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 28. As is said in another case, "Injunction is not of right but of grace; and to move an upright chancellor to interpose this strongest arm of the law, he must have not a sham case, but a well grounded complaint, the bona fides of which is unquestioned, or capable of vindication if questioned." Kenton v. Railway Co., 54 Pa. 401, 454. "There is no power," says Mr. Justice Baldwin, "the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or is more dangerous in a doubtful case than the issuing of an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages." Bonaparte v. Camden etc., R. R. Co., Baldw., 218. All the cases referred to show that the court looks beyond the actual injury to contemplate the consequences, and however palpable may be the wrong, it will still balance the inconveniences of awarding or denying the writ, and adjudge as these may incline the judicial mind. Grey v. Ohio etc., R. R. Co., 1 Grant. Cas. 412; Varney v. Pope, 60 Me. 192; Bosley v. M'Kim, 7 H. & J. 468. Even in the case of a palpable violation of a public right to the annoyance of an individual, he must show the equity which requires this summary interference as the only adequate means of obtaining justice. Sparhawk v. Union Passenger Railway Co., 54 Pa. 401.

What is the irreparable injury which is done or threatened in this case? We can see very plainly what it is in the case of many nuisances, and the equity of this particular remedy is then very manifest. If one man creates intolerable smells near his neighbor's homestead, or by excavations threatens to undermine his house, or cuts off his access to the street by buildings or ditches, or in any other way destroys the comfortable, peaceful and quiet occupation of his homestead, he injures him irrevocably. No man holds the comfort of his home for sale, and no man is willing to accept in lieu of it an award of damages. If equity could not enjoin such a nuisance the writ ought to be dispensed with altogether, and the doctrine of irreparable mischief might be dismissed as meaningless. A nuisance which affects one in his business is less in degree, but it may still be irreparable, because it may break up the business, destroy its good will and inflict damages which are incapable of measurement because the elements of reasonable certainty are not to be obtained for their computation. Even in the case of unoccupied land a nuisance may threaten irreparable injury, where it is devoted in its purchase to some special use, or where the person causing the nuisance is irresponsible, and in some other cases which need not here be specially mentioned.

The land injured in this case was bought by the complainant with a preconceived purpose to force a sale of it upon the defendant. He did not want it for a homestead or for business property, but for the money he could compel the defendant to pay for it. It may be said that no one is concerned with the motives of another in making a lawful purchase, or in doing any other lawful act; and this is true as a rule, but it is not true universally. Wherever one keeps within the limits of lawful action, he is certainly entitled to the protection of the...