Steinmetz v. Federal Lead Co.

• Decision Date: 01 April 1915
• Docket Number: No. 18303.,18303.
• Citation: 176 S.W. 1049
• Parties: STEINMETZ v. FEDERAL LEAD CO. et al.
• Court: Missouri Supreme Court

176 S.W. 1049

STEINMETZ v. FEDERAL LEAD CO. et al.

No. 18303.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

On Motion for Rehearing, June 1, 1915.

Appeal from Butler County Court.

Suit for injunction by Barbara Steinmetz, executrix, etc., against the Federal Lead Company and others. Judgment for complainant, and defendants appeal. Cause transferred to Springfield Court of Appeals.

This suit by a riparian owner was brought to enjoin the defendants, who operate lead mines on the tributaries of Big river, from casting the by-products of lead ore in said streams, thus causing them, in the forms of sludge, slime, and poisonous substances, to be carried and deposited into Big river, on its beds, and on " the farm of plaintiff, which lies on the bank of that stream, and upon the lands of other persons similarly situated. The petition alleges that the effect of this conduct on the part of defendants not only fills the bed of the river, but destroys the game fish, and by the overflowing of the waters upon the land of plaintiff and other adjoining owners robs the soil of its fertility and causes the death of the live stock, who eat the grass growing in the river valley, which has been impregnated by the poisons contained in the substances deposited thereon by the recurring overflow of Big river; that defendants are continuing to discharge such refuse in the upper waters of Big river, and thereby making the lands of plaintiff and others barren and unfit for farming or pasturing stock, and causing irreparable injury to plaintiff, for which he has no remedy at law.

The defendants answered: First. By a general denial. Second. By averments that for 15 years before the suit they had caused the water used in their various plants to concentrate lead ore to run into the tributaries of Big river; that pulverized ingredients of lead ore contained in such waters could not be eliminated, but were harmless to vegetable and animal life"; that it was necessary to concentrate the lead ore deposits near the rivers on account of its low grade; and whatever foreign substances were discharged into the waters of Big river or its tributaries had been so disposed of for 15 years. Wherefore plaintiff's cause of action was barred by the 10-year statute of limitation. Third. A claim of prescriptive right based upon the doing of the matters averred in plaintiff's petition with his knowledge for more than 10 years. Fourth. A plea of laches. Fifth. That the relief claimed by plaintiff would entail a greater injury to defendants and the public than would result from denying the redress sought.

The court made a finding of facts in substance as alleged in plaintiff's petition, and rendered a decree for plaintiff, to wit:

"Wherefore the court doth find the issues for the plaintiff, and against each and all of the defendants as above set out. Wherefore it is ordered, adjudged, and decreed by the court that defendants and each of them, their agents and servants, are, and each of them hereby is, perpetually enjoined and restrained from discharging or permitting to be discharged into Big river, or any of its tributaries, said sludge or slime from their said mines and mills, in the said quantities they have heretofore been casting therein, and that defendants and each of them take the following steps to reduce the quantity of sludge or slime passing from their said mines and mills into Big river and its tributaries: That defendants and each of them shall in the first instance discharge the water used in their mines and mills containing sludge or slime into settling basins, ponds or tanks, and, after the said sludge or slime has settled in said basins, ponds, or tanks, stall in some manner remove said settled sludge or slime therefrom and deposit same on their own lands: Provided, however, that defendants shall not be and are not hereby required to make absolutely pure the water escaping from the top of said tanks during said settling process. And the court doth further order and decree that the defendants and each of them shall be and are hereby allowed six months' time in which to construct and put into operation the appliances above mentioned. And it is further ordered and decreed by the court that, in case the defendants or any of them shall appeal from this order, decree, or judgment, the enforcement of said decree or judgment shall be suspended as to such appealing defendant or defendants until same shall be heard and determined by the appellate court. And it is further ordered and adjudged that defendants pay the cost of this suit and that execution issue therefor."

The suit was tried in Butler county upon change of venue and upon amended petition of the executrix of plaintiff—he having died pending the action. Defendants duly appealed to this court.

Nagel & Kirby and J. F. Green, all of St. Louis, Edward A. Rozier and Benj. H. Marbury, both of Farmington, Politte Elvins, of Elvins, and Robert A. Holland, Jr., of St. Louis, for appellants. E. J. Bean, of Jefferson City, and Clyde Williams, of Hillsboro, for respondent.

BOND, J. (after stating the facts as above).

A threshold question, of which we are required to take notice independently of any presentation of it by the parties, is whether under this record the appeal was properly taken to this court? As has been shown in the statement, the plaintiff seeks to enjoin the defendants from creating and continuing a nuisance in the waters of Big river by causing it to carry and deposit in times of overflow certain substances on the portion' of his farm adjoining the river, which deprived the soil of its fertility and infected the products thereof, so as to render them unsafe for feed to live stock. The plaintiff makes no allegation of the amount of the pecuniary loss thus occasioned, other than that the damages are irreparable. The decree in plaintiff's favor awarded no pecuniary recovery other than the costs of suit. The evidence for plaintiff disclosed, among other things, that he owned about 40 acres of land bordering on Big river, and that two-thirds of this was subject to overflow in times of high water, and that its full value was $25 per acre; that the remainder of plaintiff's farm laid outside of the reach of the waters from the river; that the full value of the portion subjected to overflow was $25 per acre,. amounting in the total to less than $1,000.

It is clear to a demonstration that plaintiff's case on the pleadings and evidence wholly failed to present any "amount in dispute" which would bring the appeal to this court, and that, if it can be retained here, it must be on account of something in the record of defendants' case showing that the "amount in dispute exclusive of cost, * * * exceed $7,500." R. S. 1909, § 3937. The defendants filed no counterclaim and asked for no affirmative relief. All the defenses made by them are traverses or simply in bar. The only defense which can suggest even by...