United Verde Extension Mining Co. v. Jordan

• Decision Date: 07 September 1926
• Docket Number: No. 4746.,4746.
• Citation: 14 F.2d 304
• Parties: UNITED VERDE EXTENSION MINING CO. v. JORDAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

14 F.2d 304 (1926)

UNITED VERDE EXTENSION MINING CO. v. JORDAN et al.^*

No. 4746.

Circuit Court of Appeals, Ninth Circuit.

August 2, 1926.

Rehearing Denied September 7, 1926.

Cornick & Crable, and Howard Cornick, all of Prescott, Ariz., Ellinwood & Ross and John M. Ross, all of Bisbee, Ariz., and E. S. Clark, of Phœnix, Ariz., for plaintiff in error.

Robert E. Morrison and Louis H. Bunte, both of Prescott, Ariz., for defendants in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

This action for damages was tried with United Verde Copper Company v. Jordan et al., 14 F.(2d) 299. Reference to the opinion in that case will explain the nature of the action. Plaintiffs were the same; the damages sued for were in the same amounts, and are alleged to have occurred during the same period of time and to the same crops and upon the same property. Verdict was in favor of the plaintiffs and against this defendant in the same amount as in the other case. Defendant's smelter is about four miles from plaintiffs' lands, and had but one stack.

On the trial this defendant did not stand on its motion for a directed verdict, but introduced testimony tending to show that the damage to the crops, trees, and vines on the farms of the plaintiffs was in part caused by plant disease, insects, blight, and unfavorable soil and climatic conditions. Defendant did not attempt to deny that the smoke from its smelter spread over plaintiffs' lands and injured the crops to some extent. On the contrary, some of the testimony of the defendant was that about one of the times when the smoke hung over certain of the lands described in the complaint there were smoke markings around the edges of the fields on the crops that had not been cut and upon some of the plants, vines, and fruit trees. The court was therefore correct in charging the jury that there was in effect an admission that the smoke had caused some damage, and also in stating that plaintiffs admitted that some damage, though very slight, was done by insects and disease. After stating such admissions the court added: "And your problem will be to strike a balance between them, based upon the evidence in the case, and determine for yourselves who is telling the truth and how far. Was a great part of the damage caused by smelter smoke? That is really the question, because, if you cannot decide that it was, that ends the case, save for the plaintiffs for nominal damages. Was the greater part of the...