Madison v. Ducktown Sulphur, Copper & Iron Co.

• Decision Date: 26 November 1904
• Citation: 83 S.W. 658,113 Tenn. 331
• Parties: MADISON et al. v. DUCKTOWN SULPHUR, COPPER & IRON CO., Limited. McGHEE et al. v. TENNESSEE COPPER CO. et al. FARNER v. TENNESSEE COPPER CO.
• Court: Tennessee Supreme Court

83 S.W. 658

113 Tenn. 331

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

McGHEE et al. v. TENNESSEE COPPER CO. et al.

FARNER v. TENNESSEE COPPER CO.

Supreme Court of Tennessee.

November 26, 1904

Appeals from Chancery Court, Polk County; T. M. McConnell Chancellor.

Brown & Spurlock and Jas. G. Parks, for appellant Ducktown Sulphur Copper & Iron Co. H. H. Ingersoll, W. A. Guinn, and B. B. C Witt, for appellee Madison. Cornick, Wright & Frantz, for appellant Tennessee Copper Co. Jas. G. Parks and G. G. Hyatt, for appellant Ducktown Sulphur, Copper & Iron Co., Limited. J. E. Mayfield and B. B. C. Witt, for appellant McGhee. Cornick, Wright & Frantz and R. Meigs Copeland, for appellant Tennessee Copper Co. H. H. Ingersoll and W. A. Guinn, for appellee Farner.

NEIL J.

These three cases were instituted separately in the court below, but tried together here. They embrace, in the main, the same facts and the same questions of law, and will be disposed of in a single opinion.

The bills are all based on the ground of nuisance, in that the two companies, in the operation of their plants at and near Ducktown, in Polk county, in the course of reducing copper ore, cause large volumes of smoke to issue from their roast piles, which smoke descends upon the surrounding lands, and injures trees and crops, and renders the homes of complainants less comfortable and their lands less profitable than before. The purpose of all the bills is to enjoin the further operation of these plants; the first bill having been filed against the first-named company, the last bill against the second company, and the intermediate bill against both companies.

The following general facts are applicable to all of the cases:

Prior to 1870 one Rhat began the operation of a copper mine at Ducktown, and worked it for several years. Subsequently it was owned by the Union Consolidated Mining Company, Mr. Rhat's successor. These operations were continued until the year 1879, and were then suspended until 1891. During the latter year the Ducktown Sulphur, Copper & Iron Company commenced operating the properties formerly owned and operated by the Union Consolidated Mining Company, and has continued to operate them ever since. The Pittsburg & Tennessee Copper Company began operations at Ducktown about the year 1881, and continued until about 1899, when it sold out to the defendant Tennessee Copper Company. The latter began its operations in 1900, and commenced roasting ores in May, 1901. It has continued its works ever since.

Ducktown is in a basin of the mountains of Polk county, in this state, not far from the state line of the states of Georgia and North Carolina. This basin is six or eight miles wide. The complainants are the owners of small farms situated in the mountains around Ducktown.

The method used by the defendants in reducing their copper ores is to place the green ore, broken up, on layers of wood, making large open-air piles, called "roast piles," and these roast piles are ignited for the purpose of expelling from the ore certain foreign matters called "sulphurets." In burning, these roast piles emit large volumes of smoke. This smoke, rising in the air, is carried off by air currents around and over adjoining land.

The lands of the complainants in the first bill, Carter, W. M. Madison and Margaret A. Madison, Verner, and Ballew, lie from two to four miles from the works. The land of Farner, complainant in the last bill, lies six or eight miles away. The distance of McGhee's land is not shown. The complainants in the first and second bills are the same, with the exception that McGhee does not appear in the first bill, and Verner and Ballew do not appear in the second bill.

These lands are all thin mountain lands, of little agricultural value. Carter's land consists of 80 acres, assessed at $80; Verner's, 89 acres, at $110; Ballew's, 40 acres, at $66; Madison and wife, 43 acres, at $83; W. M. Madison, about 100 acres, at $180; Isaac Farner, 100 acres, at $180. Avery McGhee has 75 acres. W. M. Madison has a tract across the Georgia line, and Mrs. Madison also one of 100 acres there. The assessed value of these last three tracts does not appear. All of these lands, however, lie in the same general section of country, and we assume their value to average about the same, in proportion to acreage.

All of the complainants have owned their several tracts since a time anterior to the resumption of the copper industry at Ducktown in 1891, and have resided on them during this period, with the exception of Avery McGhee, who worked for one of the defendant companies a considerable time, and Margaret Madison, who removed to Snoddy, in Rhea county, two or three years ago.

The general effect produced by the smoke upon the possessions and families of the complainants is as follows, viz.:

Their timber and crop interests have been badly injured, and they have been annoyed and discommoded by the smoke so that the complainants are prevented from using and enjoying their farms and homes as they did prior to the inauguration of these enterprises.

The smoke makes it impossible for the owners of farms within the area of the smoke zone to subsist their families thereon with the degree of comfort they enjoyed before. They cannot raise and harvest their customary crops, and their timber is largely destroyed.

In the first case it is shown that the complainants sold their timber to the first-named defendant, but they were under the necessity of either selling it, or permitting it to go to waste upon the ground; it having been either injured or killed by the smoke. Some of these complainants, however, obtained as much by the sale of their timber to the firstnamed company as their land cost them.

The facts found in the third case show the following in respect of the situation and injuries of complainant Farner, viz.: "He has lived on his farm since its purchase by him, some 20 or more years ago, and has supported his family, in connection with such other work as men similarly situated do in the support of their families. He has his garden and orchard, and does, or did, raise corn, hay, and such other crops, and also vegetables, as are usually raised in that mountain section of our country. ***

"The proof in the record shows that the smoke not only causes the wife of complainant to cough, but makes her head ache. It also shows that it has injured and destroyed the timber, or a portion of it, of complainant, and that it injures his crops. The extent to which it has destroyed his timber is a matter of dispute, and it is also a matter of dispute as to the amount of injury it inflicts upon his crops. Some of the defendants' witnesses say that it has destroyed from 8 to 10 per cent. of the timber on the place. Other witnesses say--and especially the witnesses of the complainant--that it has destroyed from 30 to 50 per cent. of the timber on the place. ***

"This complainant testifies, in effect, that if this smoke continues from time to time, and from year to year, to envelop his farm, he will have to leave it, because it is injurious to the health of his wife, and that, on account of its injurious effect to his crops, he will be unable to support his family on it.

"There is no material evidence in the record to dispute the effect of this testimony of complainant."

In the second case the finding of facts shows that the injuries to timber and crops and to the comfort of the complainants are much the same as these already stated. But notwithstanding these facts, it is also found that the lands of at least two of these complainants, Carter and W. M. Madison, have continuously increased in assessed value from 1895 to 1903, inclusive.

There is no finding in either of the cases that the output of smoke by the Ducktown Sulphur, Copper & Iron Company has increased to any extent since 1891, when the business of mining and reducing copper ore was resumed at Ducktown. There is likewise no finding as to this matter in respect of the Tennessee Copper Company since it began roasting ores in May, 1901.

There is a finding that the Ducktown Sulphur, Copper & Iron Company acquired its plant in 1891, and that it has spent several hundred thousand dollars since that time in improving and enlarging the plant.

The Court of Chancery Appeals finds that the defendants are conducting and have been conducting their business in a lawful way, without any purpose or desire to injure any of the complainants; that they have been and are pursuing the only known method by which these plants can be operated and their business successfully carried on; that the open-air roast heap is the only method known to the business or to science by means of which copper ore of the character mined by the defendants can be reduced; that the defendants have made every effort to get rid of the smoke and noxious vapors, one of the defendants having spent $200,000 in experiments to this end, but without result.

It is to be inferred from the description of the locality that there is no place more remote to which the operations referred to could be transferred.

It is found, in substance, that, if the injunctive relief sought be granted, the defendants will be compelled to stop operations, and their property will become practically worthless, the immense business conducted by them will cease, and they will be compelled to withdraw from the state. It is a necessary deduction from the foregoing that a great and increasing industry in the state will be destroyed, and all of the valuable copper properties of the state become worthless.

The following facts were also found, viz.:

That the total tax aggregate of Polk county for the year 1903 was $2,585,931.43, of which total the assessments of ...