Watson v. Colusa-Parrot Mining & Smelting Co.

• Decision Date: 10 January 1905
• Citation: 79 P. 14,31 Mont. 513
• Parties: WATSON et al. v. COLUSA-PARROT MINING & SMELTING CO.
• Court: Montana Supreme Court

79 P. 14

31 Mont. 513

WATSON et al. v. COLUSA-PARROT MINING & SMELTING CO.

Supreme Court of Montana

January 10, 1905

Commissioners' Opinion. Appeal from District Court, Deer Lodge County Welling Napton, Judge.

Action by J. W. Watson and another against the Colusa-Parrot Mining & Smelting Company. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed.

Jesse B. Roote, W. A. Clark, Jr., W. M. Bickford, and Geo. F Shelton, for appellant.

S. C Herren and I. G. Denny, for respondents.

CLAYBERG C. C.

Appeal by defendant from a judgment and an order overruling its motion for a new trial.

Plaintiffs claim to be the owners of certain agricultural lands situated on Deer Lodge river below defendant's concentrating smelting, and reduction plant, and allege that defendant has polluted the water of Silver Bow Creek, a tributary of Deer Lodge river, by the operation of its plant, to such an extent as to render such waters unfit for irrigation or domestic use; that the refuse and deleterious substances deposited in the stream by defendant have accumulated on their land and injured their crops, and have rendered the soil unproductive and sterile, permanently injuring the same. They pray judgment for $5,000 for deprivation of the use of the waters for domestic purposes for five years, for $5,000 for injury to and destruction of their crops during the same time, for $10,000 for permanent injury done their land by defendant, and for an injunction against the further pollution, and for costs and general relief. Defendant, by answer, denies most of the allegations in the complaint; admits that defendant for a period of over five years has operated a concentrating, smelting, and reduction plant at a point upon one of the tributaries of the stream above plaintiffs' land; admits that since the year 1897 defendant has so operated said plant, and that the waters flowing therefrom "have been impregnated with and have carried away tailings and other substances, and refuse matter produced in and resulting from such smelting operations, and that such tailings and other refuse matter have been carried by the said waters and deposited along the course of said stream and of Deer Lodge river, into which said Silver Bow creek flows, and upon the banks thereof wherever said waters have been accustomed to flow"; and alleges that it is lawful for it so to do. As an affirmative defense, defendant sets forth the prescriptive right to commit the acts above stated. It then pleads section 29, Code Civ. Proc. 1887, sections 484 and 524, Code Civ. Proc. Mont., subd. 1, § 513, Code Civ. Proc., as amended by House Bill 75, Sess. Laws 1901, p. 157, as defense by way of the statutes of limitation. The plaintiffs, by replication, deny all the affirmative allegations of new matter contained in the answer.

1. Under the facts disclosed by the record it is apparent that the nuisance complained of as causing the injury for which damages are sought arose from individual acts of different mining and reduction companies operating mines and plants in the city of Butte, whereby they have discharged deleterious and poisonous matter into the waters of Silver Bow Creek, a tributary of Deer Lodge river; that the nuisance was merely incidental to and the result of such acts; and that the injury was not caused by the joint acts of defendant and any other corporation or person. Under the following authorities the defendant was liable to plaintiffs for whatever damage it caused by its own wrongful acts, and none other: Chipman v. Palmer, 77 N.Y. 51, 33 Am. Rep. 566; Harley v. Merrill Brick Co., 83 Iowa, 73, 48 N.W. 1000; Sellick v. Hall, 47 Conn. 260; Loughran v. City of Des Moines, 72 Iowa, 382, 34 N.W. 172; Martinowsky v. City of Hannibal, 35 Mo.App. 70; Little Schuylkill Nav. Co. v. Richards' Adm'r, 57 Pa. 142, 98 Am. Dec. 209; Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550, 22 Am. St. Rep. 254; Brown v. McAllister, 39 Cal. 573; Westgate v. Carr, 43 Ill. 450; Partenheimer v. Van Order, 20 Barb. 479; Lull v. Fox & Wis. Imp. Co., 19 Wis. 100; Brennan v. Corsicana Cotton-Oil Co. (Tex. Civ. App.) 44 S.W. 588; Van Steenburgh v. Tobias, 17 Wend. 562, 31 Am. Dec. 310; Auchmuty v. Ham, 1 Denio, 495; Keyes v. L. Y. G. W. & W. Co., 53 Cal. 724; Sloggy v. Dilworth, 38 Minn. 179, 36 N.W. 451, 8 Am. St. Rep. 656. Defendant could not be held to respond in damages for the entire injury occasioned to plaintiffs by the nuisance complained of, because confessedly it only contributed to this injury. The full damage, therefore, must be apportioned among all the wrongdoers. The mere fact that it is difficult to determine what part of the damage was occasioned by acts of the defendant is no objection to the relief asked. Chipman v. Palmer, 77 N.Y. 51, 33 Am. Rep. 566; Harley v. Merrill Brick Co., 83 Iowa, 73, 48 N.W. 1000; Sellick v. Hall, 47 Conn. 260; Lull v. Improvement Co., 19 Wis. 101. The Supreme Court of Connecticut, in Sellick v. Hall, Supra, uses the following very pertinent language: "It may be very difficult for a jury to determine just how much damage the defendant is liable for, and how much should be left for the city to answer for; but this is no more difficult of ascertainment than many questions which juries are called upon to decide. They must use their best judgment, and make their result, if not an absolutely accurate one, an approximation to accuracy. And this is the best that human tribunals can do in many cases. If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied all damages, nor the other loaded with damages to which he is not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty." Like all other cases for the recovery of damages in actions upon torts, a jury must be trusted to arrive at a fair estimate of the damages after a full consideration of all the evidence which may be introduced upon the subject. However, competent evidence must be produced of all facts necessary to a recovery, upon which the jury can base a reasonably reliable conclusion; nothing can be left to mere conjecture.

2. In this case the injury to plaintiffs' land is alleged to be permanent; that its value is absolutely destroyed for agricultural purposes by the deposit of refuse and poisonous matters on the surface. Plaintiffs sought to recover as their damages for this injury the difference between the value of the land prior to the injury and its value after the injury. The court coincided with this view, and so instructed the jury, and we have no doubt but that this rule of damages for the permanent injury to the land was correct. Sweeney v. M. C. Ry., 19 Mont. 163, 47 P. 791; Jeffersonville, etc., R. R. Co. v. Esterle, 13 Bush, 667; Kemper v. City of Louisville, 14 Bush, 87; Babb v. Curators University of Missouri, 40 Mo.App. 173.

Plaintiffs also allege damage caused by pollution of the water to such an extent as to render it unfit for domestic use and watering stock, but introduce no evidence of such damage. Plaintiffs thereby waived recovery upon such allegation.

They also claim damage for injury to their crops for various years; they introduced proof thereon, and the court instructed the jury with reference thereto. The verdict was a general one for $3,000 damages, and rendered by the jury under instructions of the court allowing a recovery for permanent injury to the land and also for injury to the crops. This verdict may, and doubtless does, include damages for both the above causes. Generally, the recovery of damages for a total and permanent injury to land includes all injuries-past, present, and future. It practically amounts to an allowance to take the land upon which the nuisance has been committed for those purposes upon payment of a reasonable compensation therefor, and the amount fixed as damages by the jury and court will be treated as such reasonable compensation. But in this case the permanent and total injury to the land for agricultural purposes did not immediately result from the nuisance itself, but several years elapsed before such injury was completed. Therefore, until the land was thus totally and permanently injured, plaintiffs would be entitled to recover damages for the yearly injury to their crops caused by the continuing nuisance.

When the land was totally and permanently injured for agricultural purposes, under the above authorities, no damages could be allowed for injury to the crops ensuing thereafter. Plaintiff thereby becomes compensated for everything which he could produce by the use of the land. In order, however, to allow plaintiffs to recover for injury to the crops and the permanent injury to the same land, the complaints and proof should show distinctly and unequivocally the date when the permanent injury to the land took place, and the annual injury to crops prior to that date. It may be that different portions of the land became permanently injured at different dates. This should also appear.

But again, the evidence discloses that plaintiffs claim to own 240 acres of land, and shows that only 70 acres were so totally and permanently injured. There is neither allegation nor proof as to whether the remaining 170 acres are susceptible of raising crops, or whether, if so, any crops thereon had ever been injured. Plaintiffs might recover for such total and permanent injury to the 70 acres, and also for injuries to crops on the remainder, but would be compelled to allege the proper facts in that regard to warrant a recovery. The complaint and evidence in this case are very general, and it cannot be ascertained from either when such total and permanent injury to any of the land was actually completed. It...