Harvey Ladew v. Tennessee Copper Company

• Decision Date: 28 November 1910
• Docket Number: No. 495,495
• Citation: 54 L.Ed. 1069,31 S.Ct. 81,218 U.S. 357
• Parties: J. HARVEY LADEW, Louise Berry Wall Ladew, Individually and as Trustee under the Will of Edward R. Ladew, Deceased, et al., Appts., v. TENNESSEE COPPER COMPANY
• Court: U.S. Supreme Court

218 U.S. 357

31 S.Ct. 81

54 L.Ed. 1069

J. HARVEY LADEW, Louise Berry Wall Ladew, Individually and as Trustee under the Will of Edward R. Ladew, Deceased, et al., Appts.,

v TENNESSEE COPPER COMPANY.

No. 495.

Argued October 19, 1910.

Decided November 28, 1910.

Mr. Henry B. Closson for appellants.

[Argument of Counsel from page 358 intentionally omitted] Messrs. John H. Frantz, Howard Cornick, and Martin H. Vogel for appellee.

[Argument of Counsel from pages 359-361 intentionally omitted] Mr. Justice Harlan delivered the opinion of the court:

This action in equity was brought by the present appellants, citizens of New York and of West Virginia, against the appellees, the Tennessee Copper Company, a corporation of New Jersey, and the Ducktown Sulphur, Copper, & Iron Company, Limited, a British corporation, each of those corporations having its chief office and place of business in Polk county, Tennessee, within the territorial jurisdiction of the circuit court.

The business of each defendant is the mining, manufacturing, and producing of copper and sulphur ores and products. The plaintiffs are the joint owners in fee and in possession of more than 6,000 acres of land in Fannin, Gilmer, and Pickens counties, Georgia, and have the timber rights in other lands, exceeding 18,000 acres, in the same counties, just beyond the boundary line between Tennessee and Georgia. All these lands are devoted to forestry, have been and are of the greatest value, and contain various kinds of valuable trees. The plaintiffs employ the forests in the production of timber and bark. But for the acts of the defendants, as hereinafter stated, the lands would be sufficient to afford a continuous supply of lumber and bark in large quantities and for an indefinite period in the future. The lands have upon them forests and trees of different growth, which must receive attention and treatment in order to meet the future needs of forestry and bark industry. Before the commission by the defendants of the acts complained of, the forest and timber rights and holdings of plaintiffs approached $100,000 in value, and the damage alleged to be committed by the defendants will exceed $50,000.

The defendants conduct their business in Tennessee within a short distance of plaintiffs' lands. Recently, before the bringing of this action, the defendants erected, or caused to be constructed, and still own, operate, and control, furnaces, smelters, and ovens, all in close proximity to one another, upon lands owned or leased by them in Polk county, Tennessee. In view of those facts the plaintiffs allege that both in law and equity they are possessed of 'a right and claim in, to, and against the lands and tenements of the defendants in the nature of an easement thereupon that the same shall not be used in a manner to injure or destroy the said lands and forests [in Georgia] of your orators, adjacent thereto, as aforesaid. But the defendants, by means of said furnaces, smelters, and ovens maintained by them upon their lands as aforesaid, and in other ways, are, and for some time past have been, generating and causing to be discharged into the atmosphere, vast quantities of smoke, sulphur fumes, and noxious and poisonous vapors and gases and other deleterious substances. Within a short distance from the works and property of the defendants the said smoke, fumes, vapors, and gases and other deleterious substances so generated by each respectively inextricably mingle and are together discharged upon the lands and forests and trees of your orators, and as a result thereof great damage has been done and injury is threatened, as hereinafter appears.'

The plaintiffs further allege that said fumes, gases, and vapors have already destroyed a considerable portion of their forests and trees; that unless they receive the relief asked their entire holdings will be destroyed, and their property and interests rendered valueless; that such fumes, gases, and vapors have descended upon plaintiffs' forests and trees, killing the trees and ruining the timber; that the destruction so created and produced is constantly increasing in extent, and includes forests and trees of every variety and species, and in all stages of growth and development; that the taller trees that serve to protect the smaller growth have been the first to suffer damage and destruction; that the enlargement of the zone of destruction is due to the fact that the death of the trees already brought about permits the smoke, fumes, gases, and vapors that are constantly increasing in quantity to travel farther before being absorbed; that the forests and timber, destroyed as stated, would have made good lumber, railroad ties, and tan bark, and could have been utilized for purposes of trade and commerce; and that the acts of the defendants, unless restrained by the court, will destroy all the forests, old and young, as well as the timber and bark rights of the plaintiffs.

The bill also alleges that the smoke, fumes, gases, and vapors so generated and discharged on the property of the plaintiffs will destroy all forms of plant and tree life, including vegetables, crops, grasses, and orchards; that by such destruction the soil loses all moisture and compactness, and, being washed away by the rains, the remaining part of plaintiffs' lands will be rendered bare and barren; that the smoke, fumes, gases, and vapors are unwholesome and injurious to the life and health of all coming in contact with them, and render the lands unfit for occupancy; and that the plaintiffs, as well as the Bureau of Forestry of the United States, have frequently demanded that defendants abate the above nuisance, but the latter have refused to obey such demand, leaving plaintiffs no other alternative except to seek an injunction to prevent the above wrongs.

The specific relief asked is a decree that the defendants shall not use their property in Tennessee so as to destroy or injure the plaintiffs' lands and forests in Georgia; that the alleged nuisance maintained by defendants be abated under the direction of the court, through its own officers or oherwise, as shall seem suitable and right; and that the defendants be enjoined 'from maintaining, operating, directing, or permitting upon their land or premises [in Tennessee] the operation or maintenance of any oven, roast heap, pit, furnace, or appliance generating or giving forth any of the smoke, gases, fumes, or vapors hereinbefore complained of, or otherwise generating, producing, or causing any foul or dense or copper or sulphurous smoke, or any noxious, poisonous, unhealthy, or disagreeable, or in any manner injurious, vapor, gas, fume, or odor upon the territory or lands of your orators' [in Georgia].

Such was the case made by the plaintiffs' allegations in their bill.

The summons was served in Polk county, Tennessee, on the general manager of the Tennessee Copper Company, the highest officer of that corporation; on the British corporation, by leaving a copy with its acting general manager in the same county. Each defendant corporation has, as already indicated, its main office, and is conducting its business, in that county.

The copper company, the New Jersey corporation, appeared for the special and sole purpose of objecting to the jurisdiction of the circuit court....