Hill v. Empire State-Idaho Mining & Developing Co.

• Decision Date: 24 January 1908
• Citation: 158 F. 881
• Parties: HILL et al. v. EMPIRE STATE-IDAHO MINING & DEVELOPING CO.
• Court: U.S. District Court — District of Idaho

158 F. 881

HILL et al. v. EMPIRE STATE-IDAHO MINING & DEVELOPING CO.

United States Circuit Court, D. Idaho, Northern Division.

January 24, 1908

A. G Kerns, for plaintiffs.

Albert Allen and C. W. Beale, for defendant.

DIETRICH District Judge.

By its demurrer, the defendant challenges the amended complaint upon three grounds: its sufficiency, its certainty, and the application of the statute of limitations. That a cause of action is stated I have no doubt; and the plaintiffs having by amendment, substantially complied with the views expressed in the decision on the demurrer to the original complaint wherein it was suggested that certain features be pleaded with more directness and detail, there remains for consideration only the plea of the statute of limitations.

It is contended by the defendant that the entire claim of plaintiffs is barred by subdivision 2, Sec. 4054, Rev. St Idaho 1887; or, if not the entire claim, all damages accruing more than three years prior to the commencement of the action are barred by the subdivision referred to, which provides that an action for trespass upon real property must be commenced within three years.

The action was commenced on the 27th day of August, 1906. The material facts exhibited by the amended complaint are that the plaintiffs have for a great many years been in the possession, as owners or otherwise, of a tract of agricultural land riparian to the South Fork of the Coeur d'Alene River in Shoshone county, Idaho, and that in June, 1898, the defendant erected and commenced the operation of reduction works, consisting of an ore crusher and a concentrator, near Canyon creek, a tributary of the South Fork of the Coeur d'Alene River, some distance above the lands referred to as belonging to the plaintiffs. These reduction works were operated continuously during the period from June, 1898, to September 1, 1903; and it is alleged that while the same were being so operated the defendant daily discharged therefrom into the channel of Canyon creek from 500 to 1,000 tons of tailings and waste material, the same being permeated with noxious slimes and other poisonous substances; that, as a consequence, the channel of the stream became partially filled up with refuse, and during periods of high water this refuse, including the poisonous substances, was carried down the stream, and, obstructing the channel, caused the water to overflow, and to deposit the debris upon plaintiffs' land, poisoning the soil, and destroying the trees, grasses, and other vegetation growing thereon. It is further averred that these overflows and deposits continued up to the time suit was commenced, and that they would continue from time to time during seasons of high water, so long as any of the waste material remained in the channel of Canyon creek.

Two general questions have been discussed: First, when did the period of limitations commence to run; and, second, by what section or subdivision of the statute is the period prescribed. Counsel for defendant contends that the statute commenced to run immediately upon the construction of the reduction works in June, 1898, and counsel for the plaintiffs maintains the view that the entire claim for damages is a unit, and that the cause of action 'accrued' only upon the filing of the complaint. Defendant's theory is based upon a general allegation in the complaint, to the effect that, by reason of the defendant's wrongful acts, the plaintiffs 'have been deprived of the free use and enjoyment and possession' of their lands from the time of the commencement of defendant's mining operations in June, 1898. It is insisted that this language should be construed to mean that the wrong was fully consummated, and the ensuing damage was complete, and the plaintiffs were dispossessed, immediately upon the commencement of the defendant's mining operations. But, even if this general allegation stood alone, such construction would be unnecessary, if not unnatural, and, in the light of other portions of the complaint, it must be rejected. A court will look beyond the form for the substance, and in construing a pleading, where the facts are explicitly averred, epithets and inferences not in harmony therewith will be disregarded. Applying this principle, the complaint must be regarded as exhibiting a case of recurring injury to plaintiff's lands, due to the operation by the defendant of a lawful enterprise in an unlawful or careless manner. There is no allegation of the absolute destruction of the entire tract of land, or of any part of it at any time, but, upon the other hand, it is charged that from day to day, for more than four years, defendant continued to cast into Canyon creek large quantities of poisonous waste, and that, up to the commencement of the action, from time to time, by reason of spring and other freshets, this was carried down and discharged upon plaintiffs' land, and that 'ever increasing quantities of the land' were thereby overflowed.

Moreover, the damage for which recovery is sought is not the direct, but only the consequential, result of the defendant's acts. So far as appears, it had the right to erect and operate its reduction works, and, in casting into Canyon creek its waste material, it infringed upon no right of the plaintiffs. It was only by reason of the intervening agency of high water, the effect of which was uncertain and contingent, that the defendant's acts indirectly resulted in the injury to plaintiffs' land. Nor can I adopt the plaintiffs' view that no right of action accrued until the complaint was filed. Primarily, the action is one to recover damages for the wrongful flooding of land, and, on principle, there is no essential difference between this case and one where lands are flooded by reason of the careless construction or maintenance of a railroad embankment or bridge, with insufficient provision for taking care of the water of a natural waterway. The fact that the waters which were thrown upon the plaintiffs' land carried thereon poisonous substances, only aggravates the injury, and does not, in law, essentially differentiate the cause of action from the ordinary case of flowage.

The rule is that in case of a nuisance of a...