State v. Dearing

• Decision Date: 10 June 1912
• Citation: 148 S.W. 618
• Parties: STATE ex rel. FEDERAL LEAD CO. v. DEARING, Circuit Judge.
• Court: Missouri Supreme Court

148 S.W. 618

STATE ex rel. FEDERAL LEAD CO. v. DEARING, Circuit Judge.

Supreme Court of Missouri.

June 10, 1912.

1. PLEADING (§ 350)—RETURN—MOTION FOR JUDGMENT—EFFECT.

Where, on prohibition, the Supreme Court granted a preliminary rule to which respondent filed a return and relator moved for judgment on the pleadings, the well-pleaded facts of the return stand as the facts of the case.

2. PROHIBITION (§ 10)—CONTROLLING ACTION OF INFERIOR COURT — QUESTIONS WITHIN JURISDICTION OF INFERIOR COURT.

Where the circuit court is rightfully possessed of a cause after the overruling of an application for removal to the federal court, it can pass on the question of jurisdiction raised by motion challenging the sufficiency of the service of summons, and the Supreme Court on prohibition will not interfere.

3. WATERS AND WATER COURSES (§ 77)— POLLUTION OF STREAMS — ABATEMENT OF NUISANCE—JOINDER OF PARTIES.

A suit to abate a nuisance caused by the pollution of a stream by the operation of mills used in mining, owned and operated independently by several persons acting separately, is properly brought against all.

4. REMOVAL OF CAUSES (§ 49)—SEPARABLE CAUSE OF ACTION.

A suit to abate a nuisance, caused by the pollution of a stream by the operation of mills in mining owned and operated independently by several persons, does not, when brought against them all, embrace separable controversies, and a nonresident defendant is not entitled to have the cause removed to the federal court.

In Banc. Prohibition by the State, on the relation of the Federal Lead Company, against E. M. Dearing, Judge of the Circuit Court of Jefferson County, to prohibit respondent from further proceeding in a case. Writ refused.

Seddon & Holland and E. A. Rozier, for relator. Clyde Williams and Byrns & Bean, for respondent.

GRAVES, J.

Relator seeks to have respondent, as judge of the circuit court of Jefferson county, prohibited from further proceeding in a case wherein one Steinmetz is plaintiff and this relator and some four other mining companies are defendants. Steinmetz, who is the owner of land or lands bordering upon Big river, sues to enjoin relator and the other defendants from polluting the waters of such running stream, which is alleged they do by discharging into said stream certain named substances from their mines and mills, all to the irreparable damage of said plaintiff and his lands, as well as to divers other persons and their lands. The details of this petition are immaterial, but such is the general purport. The relator is a nonresident corporation, but licensed to do business in this state. In due time the relator herein petitioned the said circuit court for a removal of said cause to the District Court of the United States for the Eastern Division of the Eastern District of Missouri, on the ground that plaintiff's petition stated a separable controversy wholly between said plaintiff in that suit and this relator as defendant in that suit, which could be separately and wholly determined as between the two parties aforesaid, one of which parties, the plaintiff, was a citizen of Missouri, and the other, this relator, a citizen of Delaware.

I. Respondent refused to grant and make an order of removal in compliance with the prayer of relator's petition therefor. Relator in his petition for the writ of prohibition further challenges the jurisdiction of the respondent, because of alleged defective and void service of the summons. This court granted a preliminary rule in prohibition, to which respondent has filed his returns, and relator thereupon filed motion for judgment on the pleadings. In such case the well-pleaded facts of the return stand as the facts of the case. The return admits many of the charges in relator's petition and specifically answers as to others. The further facts can be stated best with the discussion of the points made, which are as above indicated.

II. The second ground urged in the petition for the writ of prohibition is not urged in the briefs filed upon the hearing. If it was urged, it would be untenable. As stated above, the second ground charged in the petition was that there was a defective service upon relator in the circuit court suit. After the circuit court refused a removal order, the relator by motion duly challenged the jurisdiction of the circuit court upon the ground of defective service, and this motion was pending at the date of our preliminary rule. That the circuit court of Jefferson county had the right to pass upon that motion as to its jurisdiction goes without question, unless its jurisdiction of the cause had been dislodged by the application and bond for removal to the federal court. If, in other words, the court was rightfully possessed of the cause after overruling the application for removal, it certainly had the power to pass upon the question of its jurisdiction as raised by the motion now pending before it.

Respondent by his return pleads the pending of that motion and his right to pass upon the jurisdiction of his court, in so far as it is attacked by the motion, and in this we think respondent is correct. Respondent, however, further shows all the facts as to the service of the five defendants, giving the return of the officer as to each defendant. From these it appears that all of the defendants were served on the 7th day of December, 1911. One of the defendants was served in Jefferson county and the other four in St. Francois county. We shall not pass upon the sufficiency of this service for the reason that, if respondent's court is otherwise rightfully possessed of the cause, he has a right to pass upon this motion to the jurisdiction. The motion being yet before him, we shall not prejudge the matter for him. The real question is the one first raised by the petition, and this we take next.

III. Nor do we think there is substance in the contention that the petition shows upon its face that the action in the circuit court is necessarily a separable controversy between citizens of different states. It must not be overlooked that this is not an action for damages, but an injunctive action to abate a nuisance and to restore the stream to its natural condition. It does appear from the petition that whatever was done by the several defendants toward polluting the stream was done independently. In other words, each defendant has its own separate milling plant, and the refuse from them is placed into the stream by the several defendants in the ordinary and usual manner of doing their respective work. One defendant had nothing to do with the work and doings of the other. But, on the other hand, the petition charges that the combined wrongful doings of all defendants has produced the present condition of the river, and has therefore produced the nuisance sought to be abated.

To our mind counsel for respondent well states the law as to what is a separable controversy under the laws of the United States, when they say: "The rule as to joint liability, in an action for damages caused by the pollution of a stream by separate acts of different parties, is entirely different from an action, as in this case, by injunction to restrain all parties who by their separate acts pollute a stream and create a nuisance. There is a distinction between suits for injunction and actions for damages in regard to the joinder of parties contributing toward an injury."

There is a marked distinction between actions in equity and actions at law in cases of this character. If the plaintiff Steinmetz had sued these five defendants for damages resulting to his property by reason of their alleged separate acts, the cause of action stated would be a separable cause of action, because each defendant would only be liable for such proportionate part of the whole damage as it had done by reason of its individual wrongful act. Better stated, each defe...