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1. American Smelting & Ref. Co. v. Godfrey, 158 F. 225

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American Smelting & Ref. Co. v. Godfrey

Circuit Court of Appeals, Eighth Circuit
November 4, 1907
No. 2548; No. 2549; No. 2550; No. 2551

Reporter
158 F. 225 *; 1907 U.S. App. LEXIS 3988 **
existed because the value of the object of the
AMERICAN SMELTING & REFINING CO. et al. v.
landowners' complaint, namely, the cessation of the
GODFREY et al.
operation of the smelters or the use of appliances that
would prevent the emission of the harmful substances,
Prior History: [**1] Appeal from the Circuit Court of
satisfied the amount in controversy requirement; (2) the
the United States for the District of Utah.
damage caused by the harmful emissions was
irreparable and the landowners had no adequate
Core Terms remedy at law; and (3) it would be inappropriate to
balance the inconvenience to the factory operators
injunction, complainants, nuisance, smelters, smelting,
against the rights of the landowners because the
decree, sulphur, cases, damages, farms, fumes,
conduct of the factory operators was tortious.
atmosphere, enjoin, carrying, arsenic, sulphur dioxide,
percent, convenience, injuries, sulphide, destruction, Outcome
inflicted, Mountain, Copper, houses, rights, acres,
The court affirmed the lower court's decree granting the
ownership, parties, Iron
injunction requested by the landowners in a nuisance
action.
Case Summary
LexisNexis® Headnotes
Procedural Posture
Plaintiff landowners filed a nuisance action against
defendant factory operators seeking an injunction
prohibiting the factory operators from continuing to smelt
sulfide ores containing over 10 percent sulfur and from
Civil Procedure > Remedies > Injunctions > General
discharging sulfur dioxide and arsenic into the
Overview
atmosphere. The Circuit Court of the United States for
the District of Utah entered a decree granting an Real Property
injunction, and the factory operators appealed. Law > ... > Remedies > Damages > Measurement
of Damages
Overview
The plants owned by the factory operators discharged Civil Procedure > ... > Diversity
sulfur dioxide and arsenic into the atmosphere. The Jurisdiction > Amount in Controversy > General
sulfur dioxide returned to the earth as sulfuric acid and Overview
destroyed the landowners' crops, and the arsenic settled
on the ground and killed their livestock. The landowners Real Property Law > Torts > Nuisance > General
claimed that the issuance of the injunction was a proper Overview
remedy to restrain a nuisance. The factory operators
claimed that the amount in controversy was insufficient Real Property
to support diversity jurisdiction and that the Law > ... > Nuisance > Remedies > General
inconvenience and expense of complying with the Overview
injunction were excessive. The court upheld the
injunction. The court ruled that (1) diversity jurisdiction Real Property

Emmanuel Ortega
 Page 2 of 14
158 F. 225, *225; 1907 U.S. App. LEXIS 3988, **1

Law > ... > Remedies > Damages > General and no injunction should be granted whenever it would
Overview operate oppressively or inequitably, or contrary to the
real justice of the case.
Real Property
Law > ... > Remedies > Injunctions > General
Overview
Civil Procedure > ... > Injunctions > Grounds for
Injunctions > General Overview
HN1[ ] When an injunction is asked against the
erection and maintenance of a nuisance, it is not
Real Property Law > Torts > Nuisance > General
important to discuss what kind of damage would result if
Overview
the nuisance were operated, but rather what the cost of
the alleged nuisance will be. The want of a sufficient
Torts > Premises & Property Liability > Trespass to
amount of damage having been sustained to give the
Real Property > General Overview
federal courts jurisdiction will not defeat the remedy, as
the removal of the obstruction is the matter of HN6[ ] The principle that a chancellor will refuse to
controversy, and the value of the object must govern. enjoin when greater injury will result from granting than
from refusing an injunction has no application where the
act complained of is in itself, as well as in its incidents,
Civil Procedure > ... > Diversity tortious. In such a case it cannot be said that injury
Jurisdiction > Amount in Controversy > General would result from an injunction, for no man can
Overview complain that he is injured by being prevented from
doing to the hurt of another that which he has no right to
HN2[ ] The distinct and separate interests of do. Nor can it make the slightest difference that the
complainants in a suit for relief against assessments plaintiff's property is of insignificant value to him as
cannot be united for the purpose of making up the compared with the advantages that would accrue to the
amount necessary to give the court jurisdiction. defendants from its occupation. There can be no
balancing of conveniences when such balancing
involves the preservation of an established right.
Civil Procedure > ... > Diversity
Jurisdiction > Amount in Controversy > General
Overview Civil
Procedure > Remedies > Injunctions > Preliminary
HN3[ ] The test of jurisdiction is not the amount of & Temporary Injunctions
damage actually sustained by each of the complainants,
but is the value of the object sought by the bill. HN7[ ] Preliminary & Temporary Injunctions

An injunction pendente lite is very like an execution

before judgment, and ought not to be issued except in
Real Property Law > Torts > Nuisance > General
clear cases of right.
Overview

HN4[ ] The rights of habitation are superior to the

rights of trade, and whenever they conflict, the rights of Real Property Law > Eminent Domain
trade must yield to the primary or natural right. Proceedings > Elements > Just Compensation

Real Property Law > Eminent Domain

Proceedings > Elements > Public Use
Civil Procedure > ... > Injunctions > Grounds for
Injunctions > General Overview
Real Property Law > ... > Elements > Just
Compensation > Property Valuation
HN5[ ] The comparative convenience or
inconvenience to the parties from the granting or
Constitutional Law > Bill of Rights > Fundamental
withholding an injunction sought should be considered,
Rights > Eminent Domain & Takings

Emmanuel Ortega
 Page 3 of 14
158 F. 225, *225; 1907 U.S. App. LEXIS 3988, **1

Real Property Law > Eminent Domain County, Utah; that they were, at the time the bill was
Proceedings > Constitutional Limits & filed and for more than two years prior thereto,
Rights > General Overview occupying their respective farms as homes for
themselves and families, and engaged in cultivating
HN8[ ] Just Compensation their farms; that, but for the injuries complained of, the
farms would have been highly productive in fruits,
Private property shall not be taken or damaged for vegetables, cereals, and grasses of great value; that the
public use without just compensation. Utah Const. art. I, farms had been brought to a high state of cultivation,
§ 22. and contained many fruit and ornamental trees, also
had houses, barns, and other valuable improvements
located thereon; that they also kept on their respective
Civil Procedure > ... > Injunctions > Grounds for farms domestic animals, such as horses, [*227] cattle,
Injunctions > General Overview and sheep, useful in husbandry. It is further alleged that
the defendants each owned a smelter, situated in Salt
HN9[ ] An injury is irreparable in all cases when the Lake county, and in proximity to each other and to the
damages which may result therefrom cannot be complainants' farms; that wrongfully, and in disregard of
measured by any certain pecuniary standard. the rights of the complainants, the defendants,
respectively, have maintained and operated, and still
Counsel: Bills by James Godfrey and others against the maintain and will continue to operate, the smelters as
American Smelting & Refining Company, United States they have been operated, and as they severally threaten
Smelting Company, Utah Consolidated Mining to continue to operate the same, which have been, are,
Company, and the Bingham Consolidated Mining & and will be injurious [**3] to the health and offensive to
Smelting Company. the senses of the complainants and each of them; that
the smelters are and have been employed in the
Waldemar Van Cott (E. M. Allison, Jr., and William Riter,
reduction of ores of lead or copper, or both, and known
on the brief), for appellant Utah Consolidated Mining
as sulphide ores, and also containing iron sulphates,
Company.
together with arsenic, antimony, and zinc; that in the
Andrew Howat and W. H. Dickson (H. R. Macmillan, A. process of reduction the sulphur in the ores is reduced
C. Ellis, A. C. Ellis, Jr., and R. G. Schulder, on the brief), and converted into sulphur dioxide, all of which is
for appellant United States Smelting Company. permitted to and does escape in a gaseous form into the
atmosphere, and is borne by the winds, together with
John A. Street (William H. Bramel, on the brief), for
the dust and fumes of arsenic and antimony over and
appellant Bingham Consolidated Mining & Smelting
upon the farms of complainants; that more than 1,000
Company.
tons of sulphur dioxide thus daily escapes from the
William H. King (Joseph L. Rawlins, on the brief), for smelters, and is deposited upon the lands in the
appellees. neighborhood of the smelters, including the farms of the
complainants; that, coming in contact with the moisture
Opinion by: RINER in the atmosphere and falling upon the soil or
vegetation, the sulphur dioxide becomes sulphurous
Opinion acid, and to some extent is converted into sulphuric
acid, injurious to and destructive of both animal and
vegetable life; that the fumes and gases escaping from
each of the smelters are commingled in the air and
[*226] Before VAN DEVANTER and ADAMS, Circuit
together work their injurious effects upon the farms,
Judges, and RINER, District Judge.
property, [**4] and health of complainants; that the
RINER, District Judge. This is an appeal from a decree fumes, gases, and dust permitted to escape and to be
entered by the Circuit Court for the District of Utah, deposited upon the farms cause the destruction of fruit
granting an injunction. It is alleged in the bill that the and ornamental trees and various kinds of fruits,
complainants, James Godfrey and four hundred and cereals, and grasses growing on the farms, or so
eight others, who joined with him in the bill, are severally poisons the same as to render them unfit for use; that
the owners of, and are in possession of, certain the sulphur dioxide and other fumes entering the houses
farms [**2] described in the bill, situated in Salt Lake of complainants and polluting the atmosphere are
offensive to the senses, injurious to the health of the

Emmanuel Ortega
 Page 4 of 14
158 F. 225, *227; 1907 U.S. App. LEXIS 3988, **4

complainants and their families; that the fumes, gases, here. It will be first disposed of, because, if the Circuit
and dust, either directly or by poisoning the grasses Court was without jurisdiction, it was not within its
upon which they fall, have caused and are causing province to determine the other questions raised, and
many of the domestic animals of the complainants to the cause would have to be reversed, with instructions
sicken and die. It is further alleged that complainants to dismiss the bill for the want of jurisdiction. In support
have no adequate remedy at law; that each of the of their contention, it is insisted by appellants, that "the
defendants threatens to enlarge the capacity of their real matter in controversy is the damage claimed to be
smelters and increase the amount of these ores to be suffered [**7] by the several appellees, and the value of
smelted, thereby augmenting the injuries to appellants' right to operate their smelters does not
complainants; that the injury and damage are constitute the object of the suit." It is admitted that the
oppressive and cumulative, and the grievances are and smelters, taken either singly or in the aggregate, are
will be constantly recurring; that relief in actions at law worth more than the jurisdictional amount, and it is also
could only be obtained by a multiplicity of suits, and the admitted that the value of the right or opportunity to
difficulty and expense attending the same in continue to run the smelters, or any one of them, is
making [**5] proof of damage would render such worth more than the jurisdictional amount, but it is said
attempts at relief futile; that the area of land injuriously that the real thing that the appellees sue for, and the
affected is being constantly increased; that the damage value of which is not shown, is the privilege of being free
suffered by complainants and others similarly situated in from the nuisance of smoke from the smelters. This
the aggregate exceeds the value of the smelters. The contention cannot be sustained. The rule, as we
defendants each admit in their answers that they own understand it, is that HN1[ ] when an injunction is
and are operating the smelters as charged in the bill, asked against the erection and maintenance of a
denying at some length and in different forms all of nuisance, it is not important to discuss what kind of
[*228] the other allegations of the bill. The damage would result if the nuisance were operated, but
complainants replied to the answers, and the case was rather what the cost of the alleged nuisance will be.
sent to an examiner to take and report the testimony. Rainey v. Herbert et al., 55 Fed. 443, 5 C.C.A. 183. The
Upon the report of the examiner being filed, the case general principle is stated by the Supreme Court in the
was argued and submitted, and on the 5th of November, case of Mississippi M.R. Co. v. Ward, 2 Black, 485, 17
1906, a decree was entered by the Circuit Court, L. Ed. 311, as follows: "He seeks redress of a continuing
"enjoining each of the defendants from the further trespass and wrong against him and acts in behalf of
roasting or smelting of sulphide ore carrying over 10 per himself and [**8] of others who are on may be injured.
cent. sulphur, and at their present locations, so as to But the want of a sufficient amount of damage having
discharge into the atmosphere the sulphur in the form of been sustained to give the federal courts jurisdiction will
a gas, and from the further discharging into the not defeat [*229] the remedy, as the removal of the
atmosphere of arsenic; provided that the defendants or obstruction is the matter of controversy, and the value of
any one or more of them may at any time hereafter the object must govern."
apply to the court, upon due notice to the complainants,
for a modification or suspension [**6] of this injunction We have examined the cases called to our attention by
upon a showing, which the court may deem sufficient, counsel for appellants at the argument, and do not think
that conditions have been so changed that the they conflict with this rule. The present suit may well be
discharge of such sulphurous or arsenical fumes into distinguished from cases upon a money demand, where
the air by them, or either of them, may be resumed or the matter in dispute is the debt claimed, and cases
otherwise conducted, so as not to create or continue, or sounding in damages where the damages claimed give
contribute to create or continue, the nuisances jurisdiction, and those where the value of the interest or
complained of." From this decree each of the estate claimed, as in ejectment suits, determines the
defendants appealed, but the appeal of the American jurisdiction, and suits to quiet the title to parcels of real
Smelting & Refining Company was dismissed in this property, or to remove a cloud therefrom, by which their
court upon a stipulation of the parties, so that the cause use and enjoyment by the owner are impaired, which
is here for review only upon the appeals taken by the are brought within the cognizance of the court under the
three remaining defendants. statute only by the value of the property affected; and
also cases where, as in Eaton v. Hoge, 141 Fed. 64, 72
The question of the jurisdiction of the Circuit Court in C.C.A. 74, it is said, "in a suit by the several owners of
respect to the amount in controversy was raised by two water rights in a stream, or joining as claimants for
of the appellants at the final hearing, and is again urged convenience only, [**9] to enjoin the obstruction of the

Emmanuel Ortega
 Page 5 of 14
158 F. 225, *229; 1907 U.S. App. LEXIS 3988, **9

stream or the diversion of water therefrom by against the interposition of preventive power in equity,
defendants, the matter in dispute must exceed two when it is clear that on one hand a right is violated and
thousand dollars exclusive of interest and costs as to on the other a wrong committed.
each complainant." It has also been held repeatedly by
the Supreme Court that HN2[ ] the distinct and It is true in the case of Mountain Copper Co. v. United
separate interests of complainants in a suit for relief States, 142 Fed. 625, 73 C.C.A. 621, the court said,
against assessments cannot be united for the purpose "that HN5[ ] the comparative convenience or
of making up the amount necessary to give the court inconvenience to the parties from the granting or
jurisdiction. Wheless v. St. Louis et al., 180 U.S. 379, withholding the injunction sought should be considered,
21 Sup. Ct. 402, 45 L. Ed. 583; Fishback v. Western and that none should be granted whenever it would
Union Tel. Co., 161 U.S. 96, 16 Sup. Ct. 506, 40 L. Ed. operate oppressively or inequitably, or contrary to the
630. But none of these cases can apply here, for HN3[ real justice of the case, is well-established doctrine, and
] the test of jurisdiction is not the amount of damage we need hardly multiply authorities to that effect"; but
actually sustained by each of the complainants, but is the facts in that case were very different from the facts
the value of the object sought by the bill, which in this in the case before us. They are thus stated by the
case is to compel the defendants to cease operating court:
their smelters, or to use such appliances in conducting
"We have then the ownership in the complainant of a
the work as will effectually protect the complainants
little over four thousand acres of land within the
from the injuries complained of. Texas Pac. R.R. Co. v.
damaged zone, [**12] mountainous in character, with
Kuteman, 54 Fed. 547, 4 C.C.A. 503; Whitman v.
little or no soil, practically worthless for agriculture or
Hubbell (C.C.) 30 Fed. 81; Louisville & N.R. Co. v.
horticulture, upon which most of the trees and
Smith, 128 Fed. 5, 63 C.C.A. 1.
undergrowth as existed had, prior to the
The fact, urged by counsel, [**10] that these smelters commencement of this suit, been killed by the fumes
are located at a place where by reason of its relation to generated by the appellant company (for which it is, of
the railroads and mines is most convenient for smelting course, liable in damages for whatever they may have
purposes does not, in our judgment, constitute any been worth), and upon which but little more vegetation
defense to a bill to evade a nuisance; neither can the of any kind remains, susceptible of destruction. In view
courts take into consideration the fact that the business of these facts, about which there can be no question
is conducted in a proper and reasonable manner, upon the record, can it be doubted that the maximum
employing the latest and best devices and injury that can result to the lands of the complainant
instrumentalities, where the evidence shows, as in this embraced by the bill is but a mere trifle in comparison to
case, that when so operated and conducted, it still the loss inflicted by the injunction in question upon the
results in very great damage to, if not the total appellant company and those dependent upon and
destruction of, complainant's property, and is a menace benefited by it."
to health. HN4[ ] "The rights of habitation are superior
In that case, according to the statement of facts by the
to the rights of trade, and whenever they conflict, the
court, the land was practically worthless for any
rights of trade must yield to the primary or natural right,"
purpose; whereas, in this suit, we have the lands of
1 Wood on Nuisances, §§ 514-17 and 23.
complainants, exceeding in area nine thousand acres,
It is also insisted that the injury to the appellants and to located in a thickly settled and fertile valley, and all
the public, if an injunction issues, so greatly exceeds the brought to a high state of cultivation: with this condition
injury to the appellees, if denied, that an injunction existing many years prior to the location of the smelters,
should not have been granted. We think it may well be and now greatly [**13] damaged and some of the lands
doubted whether this statement is supported [*230] by practically ruined by the emission of gas and arsenic
the record. The parties to this suit, upon both sides, from the smelter stacks. The rule that the comparative
have important and very valuable interests [**11] convenience or inconvenience of the parties from the
affected by the decree, and it would indeed be difficult to granting or withholding an injunction when it is sought to
say, upon the facts disclosed by the record, which side abate a nuisance, announced in the case just cited,
would suffer the greater injury. However that may be, must, we think, be confined to the particular case then
we do not think the fact that an actual injury resulting before the court, and is not to be accepted as the
from the violation of a right is small, and the interest to statement of a rule to be applied generally in cases
be affected by an injunction is large, should weigh where it is sought to abate a nuisance, the existence of

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 Page 6 of 14
158 F. 225, *230; 1907 U.S. App. LEXIS 3988, **13

which is undoubted. This, we think, clearly appears high and dry, above all ground of fair questioning.
from an examination of the case and the cases cited in There is enough, perhaps, for the chancellor to have
support of it, some of which we will briefly notice. directed an issue. But this issue, the plaintiff by his suit
at law has already brought on and made up. Under
In Huckenstine's Appeal, 70 Pa. 102, 10 Am. Rep. 669, such a conflict of evidence, the suit at law should have
the rule was announced in substantially the same way, been tried first. The finding on such a question of fact
but an examination of the case shows that what the by twelve good and lawful men, who, if deemed proper,
court really decided was that the complainant's evidence may see and hear the thing for themselves, is still
as to the fact of the nuisance was rendered more than greatly relied on by the court. By such course we would
doubtful by the testimony of the defense. In avoid the possibility or likelihood of the awkward
commenting upon the [*231] rule announced in the predicament that now confronts us, of a court of
Huckenstine Case, in Campbell v. Seamans, 2 Thomp. equity [**16] having silenced as a nuisance a factory of
& C. 231, the Supreme Court of New York said: great cost and general utility, which the jury in the sult at
law should afterwards find to be, all things considered,
"It is in direct conflict with the authorities [**14] of this
no nuisance at all. Besides, if the jury should find it to
state, and cannot be adopted here as law."
be a nuisance by giving substantial damages, the
chancellor would then have safer ground for his decree."
This case was affirmed in 63 N.Y. 568, 20 Am. Rep.
567. And upon this particular question it was overruled In the case of Amelia Milling Co. v. Tenn. Coal, Iron &
by the Supreme Court of Pennsylvania in Sullivan v. R. Co. (C.C.) 123 Fed. 811, which was an application
Jones & Laughlin Steel Company, 208 Pa. 540, 57 Atl. for an injunction pendente lite, the court said:
1065, 66 L.R.A. 712. In the case last cited, the court, in
the course of its opinion, said: HN7[ ] "An injunction pendente lite is very like an
execution before judgment, and ought not to be issued
"And as to HN6[ ] the principle invoked that a except in clear cases of right. In the present case, on
chancellor will refuse to enjoin when greater injury will the pleadings and affidavits submitted, it is impossible to
result from granting than from refusing an injunction, it is say with certainty that the operation of the defendant's
enough to observe that it has no application where the pumping station and of its water system is a nuisance at
act complained of is in itself, as well as in its incidents, all, or, if a nuisance, one of which the milling company,
tortious. In such a case it cannot be said that injury complainant, has any right to complain."
would result from an injunction, for no man can
complain that he is injured by being prevented from The same doctrine was applied in the case of Sellers v.
doing to the hurt of another that which he has no right to Parvis (C.C.) 30 Fed. 164. Some other cases are called
do. Nor can it make the slightest difference that the to our attention in support [*232] of this proposition, but
plaintiff's property is of insignificant value to him as upon examination most of them will be found to be like
compared with the advantages that would accrue to the those just commented upon, either relating to
defendants from its occupation. There can be no preliminary [**17] injunctions, or presenting phases in
balancing of conveniences when such balancing which there was a question as to whether or not a
involves the preservation of an established right." nuisance was created by the acts of the defendant.

In that case the defendant had for many [**15] years The decision in the case of Madison et al. v. Ducktown
operated his steel furnaces in proximity to the plaintiff's Sulphur & Iron Co., 113 Tenn. 331, 83 S.W. 658, much
land, and just prior to the commencement of the suit had relied upon by appellants, was largely predicated upon a
enlarged his furnaces, and was changing the character statute of Tennessee, which the court said was to be
of the ore smelted so that it would materially increase regarded as declaring the policy of the state upon the
the damage inflicted upon the plaintiff. subject referred to. If the court based its decision upon
grounds independent of the statute, then we think its
The case of Powell v. Bentley & Gerwig Fur. Co., 34 W. conclusions are not sustained by the weight of authority.
Va. 804, 12 S.E. 1085, 12 L.R.A. 53, cannot be said to Shelfer v. City of London, etc. (1895), 1 Chan. 287;
be an authority upon the point, as will be seen from the Imperial Gas Light & Coke co. v. Broadbent, 7 H.L.C.
following quotation taken from the opinion: 600; Atty. Gen. v. Council, etc., Birmingham, 4 Kay & J.
528, 538; Cowper v. Laidler (1903), 2 Chan, 337; Atty.
"On the question of nuisance, the evidence is
Gen. v. Colney, etc., Asylum, L.R. 4 Chan. App. 146;
conflicting; at any rate, the plaintiff does not put his case

Emmanuel Ortega
 Page 7 of 14
158 F. 225, *232; 1907 U.S. App. LEXIS 3988, **17

Corning v. I. & M. Factory, 40 N.Y. 191; Stock v. Judson complained of, and, as suggested by the Circuit Court,
Township, 114 Mich. 357, 72 N.W. 132, 38 L.R.A. 355; "it must be inferred that with respect to such acts the
Village of Dwight v. Hayes, 150 Ill. 273, 37 N.E. 218, 41 Legislature did not deem the incidental public benefit of
Am. St. Rep. 367; Harper v. Mountain Water Co., 65 sufficient importance to legalize the acts on condition
N.J. Eq. 479, 56 Atl. 297; Hennessy v. Carmony, 50 N.J. that compensation be made."
Eq. 616, 25 Atl. 374; Evans v. Reading Fertilizing Co.,
160 Pa. 209, [**18] 28 Atl. 702; Weaver v. Eureka An examination of the record satisfies us that there is no
Lake Co., 15 Cal. 271; Amsterdam, etc., Co. v. Dean, question of laches in this case, and we pass it without
13 App. Div. 42, 43 N.Y. Supp. 29; Banks v. Frazier, further comment.
111 Ky. 909. 64 S.W. 983; Suffolk, etc., Co. v. San
It is also suggested by some of the appellants that the
Miguel, etc., Co., 9 Colo. App. 407, 48 Pac. 828; Clowes
complainants have only proved possession of their
v. Staffordshire, etc., Co., L.R.S. Ch. App. 125;
farms, and that an injunction should only issue at the
Pennington v. Brinsop, etc., Co., L.R. 5 Ch. Div. 769;
suit of the owner of the freehold. While this proposition
Young v. Banker, etc., Co. (1893), App. Cas. 691;
of law may well be doubted, it is unnecessary to decide
Hobbs v. Amador Co., 66 Cal. 161, 4 Pac. 1147;
it, for, as suggested by the Circuit Court, "many of the
Chestatee Co. v. Cavendars Co., 118 Ga. 255, 45 S.E.
complainants were called as witnesses and testified to
267; Weston Paper Co. v. Pope, 155 Ind. 394, 57 N.W.
both ownership and possession. The direct evidence as
719; Townsend v. Bell, 62 Hun, 306, 17 N.Y. Supp. 210;
to ownership was of a legal conclusion, but evidently for
Brown v. Ontario, etc., Co., 81 App. Div. 273, 80 N.Y.
the purpose of convenience, it was not objected to, and
Supp. 837; Beckwith v. Howard, 6 R.I. 1.
cannot be disregarded. The facts do not justify the
Our attention was called at the argument to a statute of contention made."
Utah, which, it is contended, is a declaration of the
policy of the state authorizing the court where an That the damage suffered in this case is substantial,
injunction is sought, and where, but for the exercise of irreparable, and incapable of adequate reparation at
the court's discretion, the plaintiff would be entitled to an law, was found by the Circuit Court, and this view [**21]
injunction, to refuse to grant an injunction, and to require is, we think, fully sustained by the evidence. HN9[ ]
the defendant to give a bond to pay the plaintiff all An injury is irreparable in all cases when the damages
damages that may be recovered on account of a which may result therefrom cannot be measured by any
continuance of the nuisance complained of, and it certain pecuniary standard. As suggested by the
is [**19] said that this statute is not merely a rule of Supreme Court of California, in Daubenspeck v. Grear,
procedure, but is a property right which the federal 18 Cal. 443:
courts must recognize and enforce. We have examined
"The fact that the defendants are willing to pay for the
this statute at length, and do not think it susceptible of
property is immaterial, for there are no means of
the construction contended for. We think it cannot apply
determining whether the value of the property in money
and was not intended to apply, to final hearings, but can
would compensate the plaintiffs for its destruction. It
only have reference to interlocutory or restraining
may possess a value to them which no other person
orders, and does nothing more than to prescribe for the
would place upon it; and there is neither justice nor
state courts a method of procedure which has always
equity in refusing to protect them in the enjoyment of it,
obtained in the federal courts. It would be a strained
merely because they may possibly recover what others
construction of this statute, and one wholly unwarranted
may deem an equivalent in money. The nature of the
by its language, to say that it conferred upon the court
property, which consists of fruit trees, ornamental
the power to perpetuate for all time a nuisance, which
shrubbery, etc., gives them a peculiar claim to this
would amount to the taking of private property [*233]
protection."
merely upon the giving of a bond to pay such damages
as might be recovered. The Constitution of Utah To remit the complainants to their remedy at law would
expressly provides that HN8[ ] "Private property shall result in an endless multiplicity of suits. Each defendant
not be taken or damaged for public use without just would have to be sued separately, as they are not
compensation." Const. art. 1, § 22. While the acting in concert, and it would be altogether impossible
Legislature of Utah has declared certain smelter uses to to determine the proportion of damages occasioned by
be public, and authorized the exercise of the power of any one of the smelters, because the fumes from [**22]
eminent domain for certain purposes, yet the purposes all of them so commingle, "as to make discrimination
specified do [**20] not embrace the acts here impracticable." And in such circumstances the court

Emmanuel Ortega
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cannot take into consideration the fact that the Smelting Company that by the terms of the decree the
appellants' business is lawful, and furnishes profitable smelters may roast or smelt any kind of ore containing
employment for many people, and is beneficial to the not to exceed 10 per cent. sulphur, but cannot mix with
community at large, as well as profitable to the silicious ore, carrying no sulphur whatever, any sulphide
appellants, who have invested large amounts of money ores carrying over 10 per cent. and they insist that the
in the erection of their works, if the business is carried decree should be so modified as to permit them to smelt
on in an unlawful manner so as to destroy the property sulphide ores carrying more than 10 per cent. mixed
of individual landowners [*234] in the vicinity, or with ores carrying less than 10 per cent. or no sulphur, if
seriously impair or injure the health of those living upon the mixture does not contain to exceed the 10 per cent.
their own land in the vicinity of their works. And when sulphur authorized by the decree. This request seems to
the acts of the defendants produce this result, as is us reasonable and a proper modification of the decree,
clearly shown by the record in this case, the court is if it is possible, but the question cannot be disposed of
bound to protect such individual rights. upon this record, as there is no testimony tending to
show that it can be done. If by crushing, or other
The decree enjoins the defendants from "roasting or process, the ores can be reduced to particles small
smelting sulphide ores carrying over 10 per cent. enough to secure such a result, we have no doubt that
sulphur, so as to discharge into the atmosphere the the Circuit Court, upon an application to modify [**25]
sulphur in the form of gas, and from the further the decree and upon satisfactory evidence that the ores
discharging into the atmosphere of arsenic." And it is could be so mixed that no more sulphur dioxide would
contended by the appellants, and there is some be expelled from smelting the mixture than would be
testimony in the case tending to support their from smelting ores carrying 10 per cent. sulphur in their
contention, that, by the erection of bag houses, [**23] natural state, would permit this to be done.
the discharge of arsenic into the atmosphere can be
fully arrested. If this is true, then, upon the completion [*235] After a careful examination of the record, the
of the bag houses, they will not be affected by the conclusion reached is that the decree of the Circuit
decree as to that matter. But it is said in the reply brief, Court should be affirmed, and it is so ordered.
filed by the United States Smelting Company, that the
erection of bag houses in a copper smelter, being Decree affirmed.
something new, requires much study and many
NOTE. -- The following is the opinion of Marshall,
experiments, and they ask that a reasonable time be
District Judge, in the Circuit Court:
granted within which to demonstrate whether or not
these bag houses can be successfully operated. The MARSHALL, District Judge. The object of this bill in
decree in this case was entered on the 5th of equity is to obtain an injunction against a nuisance. The
November, 1906. Defendants have now had almost a defendants each own a smelter situated in Salt Lake
year, and it will be more than a year before a mandate Valley near to Salt Lake City, and in proximity to each
from this court reaches the Circuit Court. If they have other. The ores smelted by them are largely sulphide in
been diligent, it seems to us that this time is reasonable character, and in the process employed sulphur is
and all-sufficient to demonstrate whether the bag driven off into the atmosphere in the form of sulphur
houses can or cannot be successfully operated. dioxide gas. This gas is heavier than the air, and, when
cooled, falls to the ground at a distance from the
It is fully established by evidence in this case that
smelters dependent upon the air currents. When it is
damage is done both by the arsenic and by sulphur
brought in contact with moisture either in the form of
dioxide, and it is not claimed by any one that the bag
rain, freshly irrigated ground, or the moisture present in
houses will prevent the escape of sulphur dioxide into
growing [**26] plants and the foliage of trees,
the atmosphere; appellants concede that the only
sulphurous or sulphuric acid is formed, which is
method by which this gas can be reduced,
destructive to vegetation. Beside the emission of the
according [**24] to the present condition of science
gas, some flue dust is emitted from the smelters, which
upon the subject, is to diminish the amount of sulphide
contains perceptible quantities of arsenic, resulting in
ores that are being smelted, so that the amount of
the death of horses and cows. The fumes from the
sulphur dioxide passing into the atmosphere will be
different smelters so mingle with each other as to make
thoroughly diffused.
it impracticable to distinguish with any certainty the
It is suggested by counsel for the United States proportion of damage caused separately by each

Emmanuel Ortega
 Page 9 of 14
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smelter. Beyond the injuries inflicted upon the property or horticulture, upon which most of such trees and
of the complainants, great personal discomfort results to undergrowth as existed, had, prior to the
those living within the section of country subjected to the commencement of this suit, been killed by the [*236]
fumes. The complainants number 409, and their farms fumes generated by the appellant company (for which it
alleged to be injured exceed in area 9,000 acres. The is of course liable in damages for [**29] whatever they
amount of damage that the complainants will suffer by a may have been worth), and upon which but little more
continuance of the nuisance does not clearly appear, vegetation of any kind remains susceptible of
and, indeed, can hardly be estimated in dollars and destruction. In view of these facts, about which there
cents, but it does appear that, in many instances, the can be no question upon the record, can it be doubted
injuries inflicted preclude the carrying on of farming that the maximum injury that can result to the lands of
operations at a profit, and practically deprive the the complainant embraced by the bill, is but a mere trifle
landowner of any beneficial use of his land. The in comparison to the loss inflicted by the injunction in
aggregate damage which will ensue from a denial of an question upon the appellant company, and those
injunction is, necessarily, very [**27] large. The dependent upon and benefited by it?" It will be readily
defendants have invested large sums in their respective perceived that the case was an extreme one against the
smelters -- employ many men; and if these smelters are complainant. The declaration of law above quoted must
closed down, the mining interests of the state will be be tested by the authorities cited in its support, and
seriously injured. No method has been discovered these will be examined.
which will enable the defendants to smelt sulphide ores
without permitting the sulphur dioxide gas to escape, In Huckenstine's Appeal, 70 Pa. 102, 10 Am. Rep. 669,
unless an expenditure be entailed which would in effect the law was laid down in much the same way, but it was
render the reduction of such ores impracticable. In view unnecessary to the decision, because the court held
of this condition, the defense is interposed that the injury that the complainant's evidence as to the fact of the
to the defendants and to the public, if an injunction nuisance "is rendered more than doubtful by the
issues, so greatly exceeds the injury to the plaintiffs, if it testimony of the defense" -- a sufficient reason for
be denied, that an injunction should not be ordered. In denying an injunction. In Campbell v. Seamans, 2
the case of McCleery et al. v. Highland Boy Gold Mining Thomp. & C. 231, the Supreme Court of New York said
Company (C.C.) 140 Fed. 951, I expressed my views on of this case: "It is in direct conflict with the authorities of
this defense, as applied to a similar state of facts, and I this state (New York) and cannot [**30] be adopted
will not repeat what was there said; but the importance here as law." On the point to which it is cited, it has
of the controversy, the arguments of counsel, and the been overruled in Pennsylvania. Sullivan v. Jones &
recent decision of the Circuit Court of Appeals of the Laughlin Steel Co., 208 Pa. 540, 57 Atl. 1065, 66 L.R.A.
Ninth Circuit in Mountain Copper Co. v. United States, 712. In this case the defendant had, for many years,
142 Fed. 625, 73 C.C.A. 621, demanded a operated steel furnaces in proximity to the plaintiff's
reinvestigation of the question. This reinvestigation has land, but had recently before the commencement of the
been made, and has confirmed [**28] me in my original suit enlarged the furnaces, and so changed the
opinion.In Mountain Copper Co. v. United States, supra, character of the ore smelted as to materially increase
the court denied an injunction on the ground that the the damage inflicted upon the plaintiff. At page 1069 of
injury which would be caused to the defendant by an the opinion, as reported in the Atlantic Reporter, the
injunction would be very great, and that suffered by the court says: "When, however, as the result of
complainant small, if the injunction was denied. In the improvements voluntarily made by the appellee, and its
opinion it was said: "That the comparative convenience use of a new ore, the annoyance, inconvenience, and
or inconvenience to the parties from the granting or injury to which the appellants are now subjected do not
withholding the injunction sought should be considered, differ merely in degree from those to which they formerly
and that none should be granted whenever it would submitted as part of their lot as citizens of the 'Iron City,'
operate oppressively or inequitably or contrary to the but in kind, and practical destruction and confiscation of
real justice of the case, is the well-established doctrine, their properties confront them, a very different situation
and we need hardly multiply authorities to that effect." is presented to a chancellor from those cases in which
The case calling for this declaration of law is thus stated the rule is laid down that people who live in such a city
in the opinion: "We have then the ownership in the or within its sphere of usefulness do so of choice, and
complainant of a little over four thousand acres of land therefore voluntarily submit [**31] themselves to its
within the damaged zone, mountainous in character, peculiarities and its discomforts. That very rule as
with little or no soil, practically worthless for agriculture announced in Huckenstine's Appeal, supra, recognizes

Emmanuel Ortega
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their right to live and have their homes there; and a case has its laws as law has its equity. This is but another
cannot be found as authority for the right of any form of saying that equitable remedies are administered
manufacturing company, located in a manufacturing in accordance with rules as certain as human wisdom
district of a city, to so rebuild and operate its furnaces as can devise, leaving their application only in doubtful
to actually destroy homes and other property in a cases to the discretion, not the unmerited favor or
residential portion of the same city. That this is what the grace, of the chancellor. Certainly no chancellor in any
appellee is doing with the properties of the appellants is English speaking country will at this day admit that he
an irresistible conclusion, and the only relief is by dispenses favors or refuses rightful demands, or deny
injunction. If it is to be permitted to so operate its that, when a suitor has brought his cause clearly within
furnaces that the burning and corroding ore dust emitted the rules of equity jurisprudence, the relief he asks is
from their stacks is borne by the winds and scattered demandable ex [**34] debito justitiae, and needs not to
over the properties of the appellants with destroying be implored ex gratia. And as to the principle invoked,
effect, simply because of the plea that it cannot be that a chancellor will refuse to enjoin when greater injury
helped, for the same reason it might ask a chancellor to will result from granting than from refusing an injunction,
stay his arm from arresting the descent of showers of it is enough to observe that it has no application where
fire from the same stacks down on the same nearby the act complained of is in itself, as well as in its
homes. If the appellees possessed the right of eminent incidents, tortious. In such case it cannot be said that
domain, it might take the properties of the appellants injury would result from an injunction, for no man can
and do with them what it pleases, but, not having such complain that he is injured by being prevented from
high right, it cannot do so, [**32] even indirectly. It has doing to the hurt of another that which he has no right to
a right to the use and enjoyment of its own property, but do. Nor can it make the slightest difference that the
so have the appellants to theirs, for whom the law says plaintiff's property is of insignificant value to him as
to the former, 'sic utere tuo ut alienum non laedas;'" and compared with the advantages that would accrue to the
on pages 1070 and 1071, it is further stated: "It is urged defendants from its occupation.' There can be no
that as an injunction is a matter of grace, and not of balancing of conveniences when such balancing
right, and more injury will result in awarding than involves the preservation of an established right, though
refusing it, it ought not to go out in this case. A possessed by a peasant only to a cottage as his home,
chancellor does act as of grace, but that grace and which will be extinguished if relief is not granted
sometimes becomes a matter of right to the suitor in his against one who would destroy it in artificially using his
court, and, when it is clear that the law cannot give own land. Though it is said a chancellor will consider
protection and relief -- to which the complainant in whether he would not do a greater injury by enjoining
equity is admittedly entitled -- the chancellor can no than would result from refusing and leaving the party
more withhold his grace than the law can deny to [**35] his redress at the hands of a court and jury,
protection and relief, if able to give them. This is too and if, in conscience, the former should appear, he will
often overlooked, when it is said that in equity a decree refuse to enjoin ( Richard's Appeal, 57 Pa. 105, 98 Am.
is of grace, and not of right, as a judgment at law. In Dec. 202); that 'it often becomes a grave question
Walters v. McElroy et al., 151 Pa. 549, 25 Atl. 125, the whether so great an injury would not be done to the
defendants gave as one of the reasons why the community by enjoining the business that the
plaintiff's bill should be dismissed that his land was complainant party should be left to his remedy at law' (
worth [*237] but little, while they were engaged in a Dilworth's Appeal, 91 Pa. 247); and similar expressions
great mining industry which would be paralyzed if they are to be found in other cases; 'none of them, nor all of
should be enjoined from a [**33] continuance of the them, can be authority for the proposition that equity, a
acts complained of; and the principle was invoked that, case for its cognizance being otherwise made out, will
as a decree in equity is of grace, a chancellor will never refuse to protect a man in the possession and
enjoin an act, where, by so doing, greater injury will enjoyment of his property because that right is less
result than from a refusal to enjoin. To this we said: "The valuable to him than the power to destroy it may be to
phrase "of grace," predicated of a decree in equity, had his neighbor or to the public.' Evans v. Reading
its origin in an age when kings dispensed their royal Chemical Fertilizing Co., 160 Pa. 209, 28 Atl. 702. The
favors by the hands of their chancellors; but although it right of a man to use and enjoy his property is as
continues to be repeated occasionally, it has no rightful supreme as his neighbor's, and no artificial use of it by
place in the jurisprudence of a free commonwealth, and either can be permitted to destroy that of the other."
ought to be relegated to the age in which it was
appropriate. It has been somewhere said that equity The lack of appositeness in Powell v. Bentley & Gerwig

Emmanuel Ortega
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158 F. 225, *237; 1907 U.S. App. LEXIS 3988, **35

Furniture Co., 34 W. Va. 804, 12 S.E. 1085, 1088, 12 adequate legal remedy." Undoubtedly these decisions
L.R.A. 53, 56, is best shown by a quotation from the on applications for a preliminary injunction were correct.
opinion where it is said: [**36] "On the question of In Evans v. Reading, etc., Co., 160 Pa. 209, 28 Atl. 702,
nuisance, the evidence is conflicting; at any rate the it was said: "So far as the 'balance of injury' notion
plaintiff does not put his case high and dry, above all refers to the parties to the litigation, * * * its legitimate
ground of fair questioning. There is enough, perhaps, application is to motions for preliminary injunction; not to
for the chancellor to have directed an issue. But this final decrees. Where the question before the court is as
issue, the plaintiff by his suit at law has already brought to the propriety of stopping a business by preliminary
on and made up. Under such a conflict of evidence, the injunction upon an ex parte showing, which may or may
suit at law should have been tried first. The finding on not be substantiated by further examination of the case
such a question of fact of twelve good and lawful men, in due course, it is very well for the chancellor to take
who, if deemed proper, may see and hear the thing for into account the magnitude of the defendant's
themselves, is still greatly relied on by the court. By investment, and compare it with the character of the
such course we would avoid the possibility or likelihood complainant's alleged injury, and, if the latter appears
of the awkward predicament that now confronts us, of a trifling beside that which would result from the [**39]
court of equity having silenced as a nuisance of a impairment of the former, he may well refuse to exercise
factory, of great cost and of general utility, which the jury his power until more fully advised."
in the suit at law should afterwards find to be, all things
considered, no nuisance at all. Besides, if the jury The application of such cases to a final hearing is not
should find it to be a nuisance by giving substantial apparent. Peterson v. City of Santa Rosa, 119 Cal. 387,
damages, the chancellor would then have safer ground 51 Pac. 557, does not support the doctrine for which it is
for his decree. the [*238] decrees of the 12th and 14th cited. In that case a perpetual injunction against a
August, 1890, must, therefore, be reversed, and the discharge of sewage by a municipal corporation was
cause remanded, the further hearing to abide the ordered. In Demarest v. Hardham, 34 N.J. Eq. 469,
determination [**37] of the issue of nuisance or no what was said about the "balance of injury" doctrine was
nuisance in the suit at law, or to be demurred to by largely dictum. In that case, machinery operated by the
plaintiff, according as he may be advised." It is familiar defendant communicated so much vibration to the wall
law that in cases of doubt, and before the determination of the plaintiff's house as to constitute a nuisance. The
of complainant's right at law, no injunction will issue. court concluded that, if the position of the machinery
Amelia Milling Co. v. Tenn. Coal, Iron & R. Co. (C.C.) were changed, all substantial vibration would cease,
123 Fed. 811, was an application for an injunction and it was ordered that the defendant make the
pendente lite; and at page 813 of the opinion, the court requisite change, and that if he failed to do so an
said: "An injunction pendente lite is very like an injunction issue. So far as this case announces the
execution before judgment, and ought not to be issued doctrine of the "balance of injury," it has been overruled
except in clear cases of right. In the present case, on in New Jersey. Hennessy v. Carmony, 50 N.J. Eq. 616,
the pleadings and affidavits submitted, it is impossible to 25 Atl. 378. In Tuttle v. Church (C.C.) 53 Fed. 422, the
say with certainty that the operation of the defendant's defendant's manufacturing industry, alleged to create a
pumping station and of its water system is a nuisance at nuisance, had been carried on for 30 years. The
all, or, if a nuisance, one of which the milling company, plaintiff had lived [**40] on his premises subjected to
complainant, has any right to complain." The same thing the claimed nuisance, and without complaint for 12
is true of Sellers v. Parvis (C.C.) 30 Fed. 164, and the years. The suit was instigated by a third person to
reason for the conclusion of the court is found in a gratify a private spite. The court found the evidence as
quotation from the opinion, at pages 166, 167, where it to the fact of a nuisance doubtful, and that if the
is said: "A preliminary injunction, if now issued, would be nuisance existed it was occasional and evanescent.
simply staying the alleged nuisance during the The injunction was properly denied. The last case cited
pendency of further proceedings to establish the is Madison et al. v. Ducktown Sulphur Copper & Iron
rights [**38] of the parties, and it would be imposing too Co. et al., 113 Tenn. 331, 83 S.W. 658. In that case, as
great a hardship upon the defendant to stop its business in this, the plaintiffs, who were farmers, sought to enjoin
at this time when the complainant could derive no the operations of several copper smelters. The lands of
benefit or advantage which would compensate for the the plaintiffs aggregated 627 acres, 452 acres of which
certain injury which would be inflicted upon the was assessed for taxation at the aggregate sum of
company, if after a fuller investigation it should appear $689; the assessed value of the remaining 175 acres
that it is not in fault, or that the complainant had an did not appear, but the court found that its value was

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about the same per acre as that of the other land, and appears to be no limit to the jurisdiction; but, in
that the entire acreage consisted of thin mountain land exercising the jurisdiction thus given, attention ought to
of little value for agriculture. The property of one of the be paid to well-settled principles; and ever since Lord
defendants was assessed for taxation at $1,279,533, Cairns' Act was passed the court of chancery has
[*239] with an average pay roll of $40,000 per month, repudiated the notion that the Legislature intended to
1,300 men employed, and 12,000 persons dependent turn that court into a tribunal for legalizing wrongful acts;
on the industry for support. The case was an extreme or, in other words, the court has always protested
one. In Tennessee there [**41] is a special statute, the against the notion that it ought to allow a wrong to
effect of which on the decision is apparent from this continue simply because the wrongdoer is able and
quotation from the opinion at page 666 of 83 S.W.: "It willing to pay for the injury he may inflict. Neither has
cannot be doubted, therefore, that although the the circumstance that the wrongdoer is, in some sense,
amending acts above copied purport, in terms, to apply a public benefactor (e.g., a gas or water company or a
only to suits brought for the recovery of damages sewer authority) ever been considered a sufficient
resulting from nuisances the purpose was to declare the reason for refusing to protect by injunction an individual
legislative will in respect of the use of the injunctive whose rights are being persistently infringed.
power in nuisance cases when sought to be used in Expropriation even for a money consideration is only
effecting final relief, and to ordain that, in administering justifiable when Parliament has sanctioned it. Courts of
this relief, the court should exercise a sound discretion, justice are not like Parliament, which considers whether
and either 'order or decline to order the nuisance to be proposed works will be so beneficial to the public as to
abated,' as such sound discretion should dictate. This justify exceptional legislation and the deprivation of
act must be regarded as declaring the policy of the state people of their rights with or without compensation." The
upon the subject referred to. It is perceived from the English cases are distinctly [**44] against the defense
caption that the Legislature had in view the public utility here sought to be interposed. Shelfer v. City of London,
of enterprises attacked on the ground of nuisance, and etc. (1895), 1 Chan. 287; Imperial Gas Light & Coke Co.
authorized the court to grant or withhold the injunction, v. Broadbent, 7 H.L.C. 600; Atty. Gen. v. Council, etc.,
as wise discretion might suggest or warn." These Birmingham, 4 Kay & J. 528, 38; Cowper v. Laidler
decisions, however appropriate to the facts involved in (1903), 2 Chan. 337; Atty. Gen. v. Colney, etc., Asylum,
Mountain Copper Co. v. United States, do not seem to L.R. 4 Chan. App. 146. The weight of authority in the
justify the application of the doctrine there advanced to United States is also opposed to it. Corning V.I. & M.
the case at bar. [**42] The Constitution of Utah Factory, 40 N.Y. 191; Stock v. Judson Township, 114
provides that: "Private property shall not be taken or Mich. 357, 72 N.W. 132, 38 L.R.A. 355; Village of
damaged for public use without just compensation." The Dwight v. Hayes, 150 Ill. 273, 37 N.E. 218, 41 Am. St.
Legislature of Utah has declared certain smelter uses to Rep. 367; Harper v. Mountain Water Co., 65 N.J. Eq.
be public, and authorized the exercise of the power of 479, 56 Atl. 297; Hennessy v. Carmony, 50 N.J. Eq.
eminent domain for these specified purposes. Those 616, 25 Ati. 374. The cases contra have been extreme
uses, however, do not embrace the acts here cases, in most of which it might be said either that the
complained of, and therefore it must be inferred that evidence of the nuisance left the matter in doubt, or that
with respect to such acts, the Legislature did not deem the injury apprehended was of a very slight character,
the incidental public benefit of sufficient importance to compensation for which in an action at law was
legalize the acts on condition that compensation be adequate. In such cases, of course, no injunction
made. Where the Legislature has refused to act, it is should [*240] issue. Osborne v. Mo. Pac. Ry., 147
not for a court to interfere by judicial legislation. U.S. 248, 259, 13 Sup. Ct. 299, 37 L. Ed. 155; McElroy
v. Kansas City (C.C.) 21 Fed. 257. In the case at bar,
In Shafer v. City of London Electric Light Co. (1895) 1 the injury is substantial, irreparable; for [**45] the
Chan. 287, 315, the court, in considering Lord Cairns' destruction of fruit and ornamental trees has always
Act (21 and 22 Victoria, c. 27), which conferred upon the been so held ( United States v. Guglard [C.C.] 79 Fed.
court of chancery jurisdiction to award damages in lieu 21, 23), and incapable of adequate reparation at
of an injunction, said: "Jurisdiction to give damages law.The suggestion that the complainants should be
instead of an injunction is, in words, given in all cases; remitted to actions at law for damages is entitled to but
but the use of the word 'damages' has led to a doubt little weight. In such actions the damages recovered
whether the act applies to cases where no injury at all would be limited to that suffered before the date of the
has yet been inflicted, but where injury is threatened writ. The result would be an endless multiplicity of suits,
only. Subject, however, [**43] to this doubt, there in each of which only one of the defendants could be

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sued, for they are not acting in concert; and it would be scale than any one of the former smelters. It is also
a matter of great difficulty to determine the proportion of contended that if the American Smelting & Refining
damage caused by the one defendant, because the Company operated alone, no substantial damage would
fumes from the smelters so commingle as to make be done. The evidence does not satisfy me that this is
discrimination impracticable. The remedy would be true, but, if true, it is irrelevant. It is sufficient to warrant
worse than the evil. To the extent that the complainants an injunction that it materially contributes to substantial
are denied an adequate remedy because of the indirect damage. It might be true in a given case that no one
public benefit, their property is injured without smelter, operating alone, would do substantial damage,
compensation -- a result which should be less possible but that such damage would [**48] result from the
under the system of written Constitutions in the United united operations of all. If in such a case any distinction
States than in England. be made it should be in favor of the smelter first
beginning its operations; and in this case, that would not
It is next argued that, because of laches, damages be the American Smelting & Refining Company. To a
should be assessed in lieu of an injunction. This was certain extent I am inclined to yield to the argument that
done in the case of McCleery v. Highland [**46] Boy the last-named company does little damage. The
Gold Mining Company under the exceptional evidence does not clearly show that damage would
circumstances there presented; and, as to some of the result from the smelting of ores carrying small per cents,
complainants here, a similar decree might meet the of sulphur. The American Smelting & Refining Company
demands of justice, but as to many of the complainants smelts some ores classed by it as direct smelting ores,
there has been no undue delay. The injury resulting without any preliminary roasting, and yet carrying a
from the smelter fumes has been cumulative on the one sulphur content not exceeding 10 per cent. Until the
hand, and has, on the other, extended, as time has complainants have established at law that the smelting
elapsed, over a wider area. Farmers who had not been of these ores constitutes a nuisance, I am unwilling to
injured were not required to acticipate this; and, as to prohibit it.
such complainants, their right to an injunction has not
been waived. [*241] The jurisdiction of the court is also challenged,
on the ground that it is not alleged that any one
It is also said that the complainants have only proved complainant will suffer a damage exceeding $2,000 if an
possession of their respective farms, and that an injunction be denied. The discussion of this question,
injunction should only issue at the suit of the owner of properly preliminary, has for convenience, been
the freehold. I should be inclined to doubt the deferred to the close of this opinion.As this suit is for an
proposition of law announced, but it is not necessary to injunction to restrain the operation of the smelters, the
decide it. Many of the complainants were called as value of the [**49] matter in dispute is the value of the
witnesses, and testified to both ownership and claimed right of which the defendants will be deprived
possession. The direct evidence as to ownership was by the granting of the relief sought. Miss. & Mo. R.R.
of a legal conclusion, but evidently for the purposes of Co. v. Ward, 2 Black, 485, Fed. Cas. No. 17,156;
convenience, it was not objected to, and cannot be Whitman v. Hubbell, 30 Fed. 81; Texas Pac. R.R. Co. v.
disregarded. The facts do not justify the contention Kuteman, 54 Fed. 547, 4 C.C.A. 503; Rainey v. Herbert,
made. The American Smelting & Refining Company 55 Fed. 443, 5 C.C.A. 183; Amelia Mill Co. v. Tenn.
further claims a prescriptive [**47] right. That company Coal, Iron & R. Co. (C.C.) 123 Fed. 811; Louisville, etc.,
succeeded to the ownership of three smelters situated R. Co. v. Smith, 128 Fed. 5, 63 C.C.A. 1; McKee v.
within a radius of several miles from its present plant, at Chautauqua Association (C.C.) 124 Fed. 811. All of the
which the smelting of sulphide ores had been carried on defendants, except the Bingham Consolidated Mining &
for many years; the aggregate quantity of such ores Smelting Company and the Bingham Copper & Gold
smelted not being greatly less than the amount now Mining Company, affirmatively allege this value in a sum
smelted at its present smelter. The evidence justifies the largely exceeding the minimum limit of jurisdiction, and
conclusion that for some reason, either the lack of all of the defendants have based their chief defense on
concentration of the smelting or a difference in the evidence of this value. The difficulty is that, with respect
methods employed, but little damage was done by these to the two defendants above named, nowhere in the bill
separate smelters. In any event a prescriptive right to or answer is there any specific averment as to the value
continue these smelters can in no event justify the of the matter in dispute; and as to those defendants no
damage done by the new smelter, situated at a different decree on the merits can be entered in this state of the
place, and conducting operations on a much larger pleadings. However, as the evidence of the defendants

Emmanuel Ortega
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158 F. 225, *241; 1907 U.S. App. LEXIS 3988, **49

clearly shows the requisite value, the complainants will

be permitted [**50] to file an amendment to their bill in
this respect to conform to the proof. Sufficient authority
for this will be found in Tremaine v. Hitchcock, 23 Wall.
518, 23 L. Ed. 97. Upon the filing of the amendment
authorized, a decree will be entered, enjoining each of
the defendants from the further roasting or smelting of
sulphide ores carrying over 10 per cent. sulphur, and at
their present locations so as to discharge into the
atmosphere the sulphur in the form of a gas, and from
further discharging into the atmosphere of arsenic;
provided that the defendants, or any one or more of
them, may at any time hereafter apply to the court, upon
due notice to the complainants, for a modification or
suspension of this injunction, upon a showing which the
court may deem sufficient that conditions have been so
changed that the discharge of such sulphurous and
arsenical fumes into the air by them or either of them
may be resumed, or otherwise conducted, so as not to
create or continue, or contribute to create or continue,
the nuisance complained of. As the interests involved
are large, and the questions decided of great
importance, this injunction will only take effect at the
expiration of 30 days [**51] from the date of the decree,
a period sufficient for the perfecting of an appeal.

End of Document

Emmanuel Ortega