Mountain Copper Co. v. United States

• Decision Date: 26 February 1906
• Docket Number: 1,203.
• Citation: 142 F. 625
• Parties: MOUNTAIN COPPER CO., Limited, v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

142 F. 625

MOUNTAIN COPPER CO., Limited, v. UNITED STATES.

No. 1,203.

United States Court of Appeals, Ninth Circuit.

February 26, 1906

The appellee was the complainant in the court below, and in its bill alleges that the defendant to the suit, appellant here is a corporation engaged in the business of operating certain mines on section 34, township 33 N., range 6 W.,M.D.M., and elsewhere in the neighborhood thereof, and of mining roasting, burning, smelting, and refining copper and other ores mined therefrom, its works being on section 18, township 32 N., range 5 W.,M.D.M., and upon other land near thereto that the complainant was at the times mentioned in the bill and still is, the owner and in the possession of certain tracts of land, with the trees and timber thereon, adjacent to and near the mines and works of the company, including all of township 32 N., range 5 W., M.D.M., except certain parts of section 18 thereof, and including also sections 1, 2, 4, 6, part of 7, 8, 10, 11, 12, 13, 14 part of 15, part of 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, part of 27, 28, 29, 30, 31, 32, 33, part of 34, 35, and 36 of township 33 N., range 6 W.M.D.M., which land was prior to January 1, 1896, and, except as stated in the bill, is still covered with and valuable for the trees and timber standing and growing thereon; that the defendant company has so conducted its said business, and continues and threatens to continue to so conduct it, that the sulphurous and arsenical fumes and smoke produced by roasting and burning its ores have greatly injured and destroyed, and still are injuring and destroying, vast quantities of the said trees and timber, rendering valueless the lands on which they are standing and growing, to the complainant's irreparable damage.

The defendant company in its answer denies that the complainant is, or was at the times stated in the bill, the owner or in possession of the odd-numbered sections in township 32 N. of range 5 W.,M.D.M., or of any of sections 16 or 36 in that township, or of the S.W. 1/4 of the S.E. 1/4 and the S.E. 1/4 of the S.W. 1/4 of section 20 in township 32, or of sections 25, 27, 34, 35, and 36 of township 33 N. of range 6 W.,M.D.M.; and as to the remaining lands described in the bill the defendant admits that the complainant is the owner and in the possession of the greater portion of them, but avers that it has not the knowledge or information sufficient to enable it to admit or deny the alleged ownership and possession of the respective tracts, and therefore prays that the complainant's alleged title thereto and possession thereof may be established by competent proof. The answer admits that all, or nearly all, of the land described in the bill was, prior to January 1, 1897, and, except as otherwise stated therein, covered with a thin growth of trees and bushes, but denies that it is or ever was valuable for any such trees, timber, or other growth thereon; that all of the said land owned by the complainant is and always was waste, mountainous, and desert land; that the surface is rough and broken, composed mainly of granite, partly covered with thin and barren soil; that the vegetable growth upon it consists and always has consisted principally of digger pine trees and manzanita and other bushes, and has not, and never had, any value as timber, or for any other purpose but fuel; and that it has not and never had any value or market as fuel, except the market afforded by the defendant's smelting works; that for fuel or for any other purpose the value of the trees and other growth upon the complainant's said land is not, and never was, greater than $1 an acre. The answer admits that the defendant is, and ever since January 1, 1897, has been, conducting upon its own lands the business alleged in the bill, and that sulphurous fumes and smoke have been and are generated and produced by roasting and burning its copper and other ores, and that by the action of such sulphurous acid it has injured and destroyed the trees and vegetation which on January 1, 1897, were standing and growing upon a portion of the lands described in the bill, to wit, upon portions of sections 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, 28, 29, and 30 in township 32 N. of range 5 W.,M.D.M., but denies that it has thereby rendered the said lands valueless, or permanently or irreparably or at all injured the same or damaged the complainant, and denies that by its said operations, or at all, it has injured or destroyed, or is injuring or destroying, or will injure or destroy, any trees, timber, or vegetation upon any of the land embraced by the bill, except the portions of the sections last specifically described.

Further answering, the defendant denies that in its operations any arsenical fumes or gases are produced, or any other injurious fumes than sulphurous acid gas; that its mines in the aforesaid section 34 consist of a large deposit of low-grade copper sulphide ore, containing small quantities of gold and silver, which ore it brings from its mines to its kilns smelting furnaces and reduction works erected on the said section 18 by means of a railroad 12 miles long, owned by it, and known as the 'Iron Mountain Railroad'; that the ore contains no arsenic, but from 30 to 50 per cent. of sulphur; that this ore is reduced at the defendant's works at Keswick to copper matte, or crude copper, containing from 70 to 80 per cent. of metallic copper, and is then shipped by rail to the defendant's refining works at Jersey City, N.J., where it is refined and separated, and the metals produced then marketed in New York; that in order to prepare the ore for treatment in roasting furnaces, and thereby to obtain metallic copper therefrom, it is necessary to first expel a considerable portion of the sulphur, which is done by burning the ore in kilns, or in heaps upon the ground; that this preliminary burning in heaps or kilns is carried on upon the defendant's land in said section 18, near its furnaces, and the sulphurous fumes arising from this burning, as well as from the roasting furnaces, are the fumes sought to be enjoined by the complainant; that no process exists whereby such ores can be worked, and the metals therein contained extracted, other than the said process of burning and roasting out the sulphur as so practiced by the defendant, and that no process exists or is known to science whereby the sulphurous acid gas generated by such burning can be neutralized or condensed; that similar deposits of copper sulphide ore have for many years been worked and reduced in other places, as, for instance, at the Anaconda mines in Montana, the Rio Tinto mines in Spain, and the Mt. Lyell district in Tasmania, and that in all of those places, and wherever such ores occur, they are reduced by burning the sulphur substantially as done by this defendant, and without condensing or neutralizing the fumes; that if an injunction should be granted restraining the defendant from roasting or burning its copper ores in the open air, without condensing or otherwise disposing of the sulphurous fumes generated thereby it would necessarily prevent this defendant from mining and reducing its ores at all, and would render valueless its entire investment in the said properties, and would throw out of employment all of its employes; that in the mouth of December, 1896, the defendant purchased its said mines, smelter, and railway from the Mountain Mines, Limited, a corporation which had theretofore owned and operated them, paying to the Mountain Mines, Limited, therefor upwards of $5,600,000, and has since such purchase invested upward of $1,000,000 more in improvements and additions to the properties; that the defendant constantly employs more than 1,000 men at its said mines and smelters, and during the year 1898 disbursed in wages and the purchase of supplies in California $1,041,300, and that its outlay for food for its said employes in Shasta county during that year was $112,970, and that the total value of all the wood and timber on all of the complainant's lands affected by the said fumes is not, and never was, so great as the sum disbursed by the defendant in any two months since the year 1896 in feeding its said employes; that the defendant extracts from its mines and reduces at its smelter by the processes complained of about 1,000 tons of metallic copper in each month, besides some gold and silver, and pays high railroad freight charges on this metal to New Jersey, and furnishes employment there to many men in its refining; that in addition to the men employed by the defendant and to the merchants from whom it purchases its supplies, all of whom are supported partly or wholly by its operations, many small quartz mines of low-grade gold ore are operated at a small profit near the defendant's works, by the sale of their ores to the defendant's smelters as a flux, and would be permanently closed if the defendant's smelters should be closed; that throughout Shasta county and elsewhere in California large and valuable deposits of similar sulphide ore exist, and are being opened and developed, as the result of the defendant's success in operating its said mines, and that the injunction sought in this action would forever destroy the value of said deposits and prevent their development or operation; that solely by reason of the product of the defendant's said smelters Shasta county has been in the past two years raised from the fifth or sixth rank to be the principal mining county in California, producing annually metals of greater value than any other county in the state; and that at the railway station at Keswick, which had no existence before the year 1896, when the defendant's smelters and railroad were built there, more freight is now received and shipped...