Hill v. Standard Min. Co.

• Decision Date: 12 April 1906
• Citation: 85 P. 907,12 Idaho 223
• Parties: JOSIAH HILL and J. S. HILL, Appellants, v. THE STANDARD MINING COMPANY, RICHARD WILSON, WALTER MACKAY, JAMES LEONARD, WILLIAM R. LEONARD, and A. L. SCOFIELD, Co-partners Doing Business Under the Firm Name of the MAMMOTH MINING COMPANY, Respondents
• Court: Idaho Supreme Court

85 P. 907

12 Idaho 223

JOSIAH HILL and J. S. HILL, Appellants, v. THE STANDARD MINING COMPANY, RICHARD WILSON, WALTER MACKAY, JAMES LEONARD, WILLIAM R. LEONARD, and A. L. SCOFIELD, Co-partners Doing Business Under the Firm Name of the MAMMOTH MINING COMPANY, Respondents

Supreme Court of Idaho

April 12, 1906

ACTION FOR DAMAGES-WHEN COMPLAINT IS SUFFICIENT-COSTS.

1. When a complaint states fully and concisely the nature of the damage, amount, and that it was caused by the unlawful wrongful and negligent acts of the defendant, held, that it states a cause of action.

2. When an appeal is prosecuted from a judgment on an order sustaining a demurrer to the complaint, no costs can be awarded to appellant, excepting the necessary costs in presenting such appeal.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. R. T. Morgan, Judge.

Plaintiffs sued for $ 12,000 damages. Defendants demurred: demurrer sustained. Judgment for costs in favor of respondent. Reversed.

Judgment reversed, with instructions.

A. G Kerns, for Appellants.

The complaint shows a continuing, growing and destructive public nuisance, specially injurious to plaintiffs, and threatening to become more destructive, and the cause of action is stated in plain and concise language. A complaint need not negative the lawfulness of an obstruction or its continuance, or that it was unavoidable. These are matters of defense to be set up by answer. (Gould on Waters, sec. 122; Estee's Pleadings sec. 2025; Wolf v. St. Louis Ind. Water Co., 15 Cal. 319.)

It may be convenient or economical for an operator to throw the refuse of his mines into a stream; but that is not enough. He is bound to consider the rights of others. He takes the risk of injuring others to save trouble and expense to himself. (2 Lindley on Mines, 840.)

The doctrine of the authorities is that each mine owner or proprietor must take care of his own mining debris, and he can acquire no right, by custom, or otherwise, to use the land of his neighbor as a dumping ground, without his consent, either by carrying and depositing the debris thereon, or by casting it into the stream and allowing it to be washed down by the force of the current. (Carson v. Hayes, 39 Or. 97, 65 P. 814; Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. Rep. 622, 50 P. 416; Hobbs v. Amador & S. C. Co., 66 Cal. 161, 4 P. 1147; Elder v. Lykens Valley Coal Co., 157 Pa. 490, 37 Am. St. Rep. 742, 27 A. 545; Pompelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557.)

The injury is a continuing one, covering a period of several years, and still existing and growing.

Lapse of time bars a recovery for a completed offense only. ( Ingersoll v. Rousseau, 35 Wash. 92, 76 P. 513.)

The statute of limitations must be pleaded by answer. (Rev. Stats., sec. 4213.)

Laches is a matter of defense to be pleaded by the respondents. And it is only when, by the delay and neglect to assert the right, the adverse party has been lulled into doing that which he otherwise would not have done, or into omitting to do that which he otherwise would have done, had the right been promptly asserted, that laches will be considered as a defense. (Carson v. Hayes, 39 Or. 97, 65 P. 814, 817.)

C. W. Beale, for Respondents.

Where a nuisance is of a permanent character, any damage that may result therefrom is an original damage, and may be at once fully compensated, and the statute of limitations immediately begins to run on any action for damages. (Powers v. Council Bluffs, 45 Iowa 652, 24 Am. Rep. 792; Stodghill v. Chicago etc. R. Co., 53 Iowa 341, 5 N.W. 495; Chicago etc. R. Co. v. Loeb, 118 Ill. 203, 8 N.E. 460; Chicago etc. R. Co. v. McAuley, 121 Ill. 160, 11 N.E. 67; Bizer v. Ottumwa Hydraulic Power Co., 70 Iowa 145, 30 N.W. 172; Gould on Waters, sec. 416; Barnard v. Shirley, 135 Ind. 547, 41 Am. St. Rep. 454, 34 N.E. 605, 35 N.E. 117.)

When the members of the convention that framed our constitution incorporated therein that in organizing mining districts the use of the public waters for mining and milling purposes should be a preferential use, they recognized thereby the absolute necessity of the use of such waters in concentrating plants.

For any injury that may result from the exercise of a lawful right, the law does not offer any relief. (3 Elliott on Evidence, sec. 1971.)

Where the maxim (sic utere tuo ut alienum non laedas) is applied to landed property, it is subject to a certain modification, it being necessary for the plaintiff to show, not only that he has sustained damage, but that the defendant has caused it by going beyond what is necessary in order to enable him to have the natural use of his own land. (West Cumberland Iron Co. v. Kenyon, L. R. 6 Ch. Div. 773; Penn. Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. St. Rep. 445, 6 A. 457; Barnard v. Shirley, 135 Ind. 547, 34 N.E. 604, 35 N.E. 117.)

This court has repeatedly held that in damage cases it is necessary not only to plead and prove negligence on the part of the defendant, but also to plead and prove a want of negligence on plaintiff's part. Applying that ruling to the case at bar the pleadings of the plaintiffs in the lower court never stated a cause of action. (Haner v. Northern Pacific R. Co., 7 Idaho 305, 62 P. 1028; Sheldon v. Rockwell, 9 Wis. 166, 76 Am. Dec. 265.)

A court of equity declines to exert its powers to relieve one who has been guilty of laches. (Whitney v. Fox, 166 U.S. 637, 647, 648, 41 L.Ed. 1145, 17 S.Ct. 713; Gildersleeve v. New Mexico Min. Co., 161 U.S. 573, 582, 40 L.Ed. 812, 16 S.Ct. 663; Abraham v. Ordway, 158 U.S. 416, 423, 39 L.Ed. 1036, 15 S.Ct. 894; Ware v. Galveston City Co., 146 U.S. 102, 116, 36 L.Ed. 904, 13 S.Ct. 33; Foster v. Mansfield Cold Water etc. R., 146 U.S. 88, 102, 36 L.Ed. 899, 13 S.Ct. 28; Hoyt v. Latham, 143 U.S. 553, 36 L.Ed. 259, 12 S.Ct. 568; Hanner v. Moulton, 138 U.S. 486, 495, 34 L.Ed. 1032, 11 S.Ct. 408; Richards v. Mackwell, 124 U.S. 183, 189, 31 L.Ed. 396, 8 S.Ct. 437; Penn. Mutual Life Ins. Co. v. Austin, 168 U.S. 685-697, 42 L.Ed. 626, 18 S.Ct. 223; Lane & Bodley Co. v. Locke, 150 U.S. 193, 37 L.Ed. 1049, 14 S.Ct. 78; Mackall v. Cassilear, 137 U.S. 556, 34 L.Ed. 776, 11 S.Ct. 178; Galliher v. Cadwell, 145 U.S. 368, 36 L.Ed. 738, 12 S.Ct. 873; Hammond v. Hopkins, 143 U.S. 224, 36 L.Ed. 134, 12 S.Ct. 418; Willard v. Woods, 164 U.S. 502, 41 L.Ed. 531, 17 S.Ct. 176.)

Whatever title the plaintiffs have in their land is subject to the vested water rights of the respondents and their use of such waters in their mining and milling operations; and said plaintiffs cannot be heard to complain at this time. They not only had personal knowledge of what the respondents were doing, but whatever title they may have to the premises, under the act of Congress, and the decision of the supreme court interpreting the same, is subject to the vested and accrued rights of said respondents to continue in their mining and milling operations unhampered and undisturbed. ( Broder v. Water Co., 101 U.S. 276, 25 L.Ed. 790.)

To entitle plaintiffs to recover for injuries sustained from a public nuisance, they must first allege in their complaint facts clearly showing that they have sustained special or peculiar damages--damages different in kind and character from the rest of the public, so that such damage cannot fairly be said to be a part of the common injury resulting from such nuisance. (Stufflebeam v. Montgomery, 2 Idaho 763-770, 26 P. 125.)

STOCKSLAGER, C. J. Sullivan, J., AILSHIE, J., concurring.

OPINION

STOCKSLAGER, C. J.

This is an appeal from a judgment rendered and entered on an order sustaining a demurrer to the complaint. It was the third effort of learned counsel for appellant to allege a cause of action against the defendants for damages to their lands located on the South Fork of the Coeur d'Alene river in Shoshone county. The complaint alleges:

"1. That at all the times hereinafter mentioned, the defendant Standard Mining Company, was, and now is, a corporation duly organized and existing under the laws of the state of Idaho.

"2. That at all the times hereinafter mentioned the defendants were copartners doing business under the firm name of the Mammoth Mining Company.

"3. That during the three years prior to the commencement of this action the defendants, as such mining partners, cast about five hundred and fifty thousand tons of waste material consisting of rock, earth, sand, stone, slime and poisonous substances of lead and arsenic, into Canyon Creek, a tributary of the South Fork of the Coeur d'Alene river, ten miles above the lands of the plaintiffs hereinafter described, thereby filling the banks and polluting and defiling said stream; and by the natural flow of waters of said Canyon creek said waste material so negligently cast into said stream by the defendants has been washed, carried, and deposited into the South Fork of the Coeur d'Alene river aforesaid, thereby polluting and defiling said stream and filling the banks thereof; and by the natural flow of the waters of said river said waste material has been washed and carried down said stream, and thereby causing the waters of said South Fork of the Coeur d'Alene river, at high water, during the aforesaid period of three years, prior to the commencement of this action, to overflow the natural banks of said stream where the same passes over, along, through and across the lands of plaintiffs hereinafter described, and wash, carry, spread and deposit over and across the said lands of the plaintiffs portions of said waste material so cast into Canyon creek by the defendants as aforesaid, thereby poisoning the said lands of the plaintiffs, so covered with waste, for agricultural, grazing, farming,...