Thropp v. Harpers Ferry Paper Co.

• Decision Date: 22 December 1902
• Docket Number: 440.
• Citation: 142 F. 690
• Parties: THROPP v. HARPERS FERRY PAPER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

142 F. 690

THROPP v. HARPERS FERRY PAPER CO.

No. 440.

United States Court of Appeals, Fourth Circuit.

December 22, 1902

R. T Barton, for appellant.

James D. Butt and Forrest W. Brown, for appellee.

This case comes before us on appeal from a decree of the Circuit Court of the United States for the Northern District of West Virginia. The case went to final hearing upon bill, answer and the report of a special master accompanied by the testimony taken by him. The court granted a perpetual injunction restraining and inhibiting the defendants from in and wise polluting and contaminating the Potomac river by running into it waste water from defendant's washers and machinery at Virginia Ore Bank, in Jefferson county, W.Va. From that decree the defendant has appealed. The Harpers Ferry Paper Company, the complainant, operates a pulp mill on the Potomac river at Harper's Ferry. It acquired the land and water rights on the Potomac and Shenandoah rivers at Harpers Ferry by purchase, in 1888, from the United States which formerly for many years had maintained there a factory for the manufacture of arms. Having acquired the title of the United States, the complainant erected at this point its pulp mill in the year 1888, and successfully operated it until January, 1901. It then found that by reason of the impurity and discoloration of the water of the river, it was obliged to stop its mill about one-half the time, and that the impurities were the result of the operations of the defendant Thropp at the ore bank, about four miles above the pulp mill on the same side of the river, and caused by the defendant Thropp having greatly increased his operations, and by his washing the clay from the ore by a force of water pumped up from the river and returned to the river discolored with red, yellow, and brown ochre and clay. This bill was thereupon filed January 24, 1901, praying an injunction to prevent the defendant from fouling the river and thus destroying the use of complainant's mill for manufacturing pulp. The ore bank, which had then been recently acquired by the defendant Thropp, has been from time to time operated for about a century. Prior to 1868 the ore exhumed from the defendant's ore bank was separated from the substance with which it was mixed, or encrusted, by screening, and the refuse was not carried to the river. In 1868 there was a washer erected, and the washings, which were inconsiderable, flowed into the river. In 1888 the second ore washer was built, and the washings from this were run alternately into two settling ponds on the land of the owner of the ore bank. Occasionally it would happen that the embankments of the settling ponds would break and the washings would escape into the river, but this was only by accident, and upon complaint from the managers of the pulp mill the managers of the ore bank always remedied the evil. The defendant Thropp acquired the ore bank property about one year before the filing of this bill, and at first he operated it as it had been operated before, making use of the old settling ponds but a short time before the filing of this bill, he established the present washer, which is of very much greater capacity, and he employed a greatly increased force of workmen, and now runs the washings directly into the river, without settling ponds partly because he desires to excavate from the bottoms of the old settling ponds the fine ore which has accumulated there, and which is valuable. The complainant had formerly a settling pool near to its pulp mill, which was of use when the river was discolored by washings from its banks at times of rain and freshet. The land on which the pool was located was condemned for the use of the Baltimore and Ohio Railroad Company, and for two years before the filing of the bill the complainant had no settling pool, of its own. The master, in his most careful report and well-considered conclusions, finds the facts to be as stated in the bill of complaint. He finds that the present method of running the ore washings into the river so discolors the water that it compels the pulp mill to close down its operations half the time, and to this extent its business is destroyed, and it suffers irreparable injury. He suggests, as the practical remedy that the defendant cause to be made sufficient settling pools on land adjoining the ore bank property which is cheaply obtainable, and, while other remedies are discussed by him in his report, this is the only one which he reports as reasonably certain of success at a moderate cost.

Before SIMONTON, Circuit Judge, and MORRIS and WADDILL, District judge.

MORRIS District Judge (after stating the facts).

The special master found as a fact, and the evidence fully establishes, that the water pumped up from the river and used to wash the ore excavated from defendant's land, is returned to the river muddy and discolored with yellow, red and brownish ochre, and that the discolored ore washings flowing down the river and entering the complainant's mill race compel the complainant to close down its mill one-half the time, and does the complainant's manufacturing business irreparable injury. These facts, if unaffected by any special equities or qualifying circumstances, entitle the complainant to an injunction. 28 Am.& Eng.Encyclopedia of Law, 969; Merrifield v Lombard, 13 Allen (Mass.) 16, 90 Am.Dec. 172; Sterling Iron & Zinc Co. v. Sparks Mfg. Co. (N.J. Err. & App.) 38 A. 426; Travis Placer Co. v. Mills, 94 F. 909, 37 C.C.A. 536, and cases collected in the note on page 538; Gladfelter v. Walker, 40 Md. 1; Baltimore v. Warren Mfg. Co., 59 Md. 96; Indianapolis Water Co. v. Am. Strawboard Co. ...