Wilmore v. Chain O'Mines, Inc.

PLAINTIFFS in error were plaintiffs in the trial court, where they sought to enjoin the pollution of the waters of Clear Creek by defendants with tailings from the latter's mills. The court found generally in favor of plaintiffs, but by its final decree allowed defendants to discharge 670 tons of tailings and slime, per day, into Clear Creek and required plaintiffs to pay their own costs. Error is prosecuted to reverse this decree. *Page 321 Plaintiffs own farms in Jefferson county, Colorado, with water rights from Clear Creek for irrigation purposes. The defendants operate ore reduction mills located up the river or above plaintiffs' farms, and discharge their mill tailings and slime into the stream which the water holds in suspension carrying them into the ditches and upon the lands of plaintiffs. It is claimed that the water is thereby polluted; that a continuous nuisance is created; that great and irreparable damage is done to plaintiffs' ditches, lands and crops; and that the water is rendered unfit for domestic or irrigation purposes. Plaintiffs seek a full and permanent injunction against this pollution. Defendants by their answers admit depositing the tailings and slime in the waters of Clear Creek, but deny that more than ten per cent of such reach the lands of plaintiffs and other water users, and claim this pollution to be lawful. Four defenses were set up by the answers: First. That the tailings were not injurious. Second. Usage and custom in depositing in the stream all mill tailings and slimes from the mills in this watershed for many years. Third. Acquiescence by plaintiffs by reason of their having failed for an unreasonable time to take steps to prevent this pollution. Fourth. That defendants cannot, without an expenditure in excess of profits, dispose of their mill tailings and slimes otherwise than by depositing them into the stream. Demurrers to the last three defenses were filed and taken under advisement by the court until the case was presented on the merits, and then sustained. Replications were filed denying all new matters and alleging the plaintiffs' water appropriations were long prior, in point of time, to any pretended right of the defendants. The court found this tailings damage to plaintiffs' lands to be immeasurable and irreparable; that there is a point between one ton and 3,000 tons of daily tailings output where the use by the defendants of their water rights for milling purposes becomes unreasonable; that where this point is, *Page 322 is not definitely or precisely covered by the evidence, and in determining that point the court must to some extent experiment and rely upon common sense; that 100 to 400 tons of tailings a day put into the stream 20 miles above where taken out for irrigation, would not be an unreasonable use nor do any real damage; that the depositing by the Chain O'Mines company of more than 600 tons a day in the operation of its mill of tailings and slimes into Clear Creek, is unreasonable and causes real damage to plaintiffs; that depositing not more than 70 tons a day by the Mattie Consolidated Mining Company is reasonable and causes no damage to plaintiffs; that defendants have the right to make reasonable experiments to impound their tailings, and the court retained jurisdiction to modify the permanent injunction order to permit the making of reasonable experiments, and to enforce or modify the injunction in accordance with conditions. The evidence shows the ownership of lands by plaintiffs and the right to divert and use water from Clear Creek for the irrigation of their lands. These rights they exercise, and they raise all kinds of garden and farm products. It required many days to introduce the great mass of detailed evidence showing damage, and the vast preponderance of the evidence justifies a finding of irreparable damage. The evidence is grouped under 24 subdivisions and emphasizes the following conditions: The headwaters of Clear Creek are in Clear Creek and Gilpin counties and form the stream which flows easterly, entering the South Platte river north of Denver. The principal ditches involved, that divert water from Clear Creek, are six in number and extend 30 miles from the point where the stream leaves the mountains. The defendants' mills, of which complaint is made, are located in the mountains and began the operations, which are claimed to damage plaintiffs, in 1928 and 1929 respectively. These mills grind and pulverize large quantities of ore and the process employed reduces it to finely powdered rock called tailings *Page 323 and the more finely powdered substance, slimes. These tailings are discharged from the mills into tributaries of Clear Creek or onto ground of steep topography with sudden drainage into the tributaries. Water is used from the tributaries for the grinding process, the mixture becomes one of whitish gray or bluish gray color, and the tailings are not soluble in water. Thirty-three per cent of the tailings from the Chain O'Mines mill pass through a 150 mesh screen which contains 22,500 openings to the square inch. Thirty and nine tenths per cent of the tailings from the Mattie mill pass through a 200 mesh screen which contains 40,000 openings per square inch. The stream in the mountains falls rapidly, there being a difference of 2,000 feet in altitude from its main source to where it leaves the mountains; this condition holds the tailings and slimes in suspension and they are carried into the ditches and upon plaintiffs' lands. Defendants by their answer admit that ten per cent of the tailings and slimes are so carried and deposited. Plaintiffs' Exhibit C discloses the date of water appropriations from Clear Creek for the various ditches. The nature of the claimed damage to plaintiffs' ditches, water rights, lands, crops and proper use, may be stated briefly as follows: Tailings and slimes close and seal the pores of the soil; prevent aeration of roots and plants; prevent water from seeping through the soil; great loss of water; clogs the ditches with deposits; increased labor in cleaning out ditches and hauling away many loads of tailings from ponds and ditches; lower productivity of the soil; increases the necessity for fertilization; lessens marketability of strawberries and other products, after tailings water has run over them they are not fit for use; requires many times more water for irrigation, one irrigation with pond water equaling six irrigations with tailings water; fills reservoirs and lessens the value of lands so irrigated. According to the estimates of Dr. Weinig of the School of Mines, the mill tailings coming down Clear Creek are approximately sixty per cent of the calculated yearly erosion. Plaintiffs' *Page 324 testimony was to the effect that the cost to the defendant Chain O'Mines Company of impounding its mill tailings would be 4.4 cents per ton. A witness for defendant testified that such impounding could be done for ten cents per ton. The specific findings of the court on all matters presented was in favor of the plaintiffs, but apparently by its decree it allowed defendants to discharge 670 tons of tailings and slimes per day into Clear Creek on the theory that such discharge was not unreasonable, and it stated that the point between a reasonable and an unreasonable discharge is not definitely fixed by the evidence and that in determining this question, it was necessary for the court to experiment. It further stated that the defendants had a right to make reasonable experiments to impound their mill tailings and the court retained jurisdiction to modify its injunctive orders so as to permit such experimentation, and required plaintiffs to pay their own costs. The defendant companies contend that their first, second and fourth defenses were good; that the demurrer thereto should not have been sustained and they assign cross-error on the adverse ruling. Said defenses are: First. Usage and custom of operators of reduction mills and plants in the watershed of discharging tailings and slimes into Clear Creek for many years. Second. That at the time the farmers acquired their lands and water rights they knew of the above mentioned custom, raised no objection to the construction of the mills involved, and thereby acquiesced in the construction and operation of the mills, neglecting for an unreasonable time to take any steps to prevent the alleged nuisance. Third. That defendants cannot, without an expenditure in excess of their present or prospective profits, dispose of mill tailings and slimes otherwise than by discharging them into Clear Creek and its tributaries. Plaintiffs contend that this pollution of the water is in violation of the statutes and constitutes a nuisance that should be enjoined fully and permanently as the pleadings *Page 325 alone would require; that full injunction should issue regardless of the amount of tailings discharged into Clear Creek, and that the cost of impounding tailings, custom, laches and estoppel, constitute no defense to plaintiffs' cause of action; that plaintiffs should not be required to seek further injunctive orders, and that they should recover their costs expended. Section 3296, C. L. '21, provides: "In no case shall any person or persons be allowed to flood the property of another person with water, or wash down the tailings of his or their sluice upon the claim or property of other persons, but it shall be the duty of every miner to take care of his own tailings, upon his own property, or become responsible for all damages that may arise therefrom." [1] Viewed in the light of reason and this particular statute, it would seem that there is no doubt about the correctness of the trial court's finding — which is based upon ample evidence — that there was a violation of the statute and an invasion of plaintiffs' rights. The demurrer to these three defenses was properly sustained. As to the remaining defense, that the tailings were not injurious, there is ample evidence to support the findings of the trial court to the contrary and they therefore will not be disturbed. [2, 3] It is not necessary to discuss the many questions presented concerning the rights of both the parties touching their priorities or as to the superior rights claimed by defendants for manufacturing or milling purposes, or the question of acquiescence by plaintiffs, for the reason that the question of pollution is determinative of all matters involved. Whatever rights might be claimed by the defendant owners, they cannot justify the claim of a right to pollute the waters of this natural stream. This question is definitely settled by the case of Suffolk G. M. M. Co. v. Mining Co., 9 Colo. App. 407, 415, 419,48 Pac. 828, from which we quote the following language: "The lower owners were entitled to have the waters preserved in their purity, that fish might swim, that their stock might *Page 326 drink, and that the water might be applied to domestic uses. Parties have been restrained from carrying on a business on the banks of a stream whereby polluting matter would by natural seepage, from rains or from any extraneous cause, be carried into the general volume of the water, and diminish its purity and its usefulness. This has been extended so far as to prevent the owners of lands higher up the stream from using their land at their own pleasure, although they had an absolute fee title thereto, in such way as to injure the lower owners, unless such injury proceeded from natural causes over which the parties had no control. Parties have been permitted to mine their own lands, but even thereon and therein they have been restrained from erecting pumping plants, hoisting water to the surface, discharging it into a stream, and letting it flow to their neighbors in such way as to injure the use and destroy the right which the lower owner had theretofore enjoyed." Citing cases. Continuing, the court said: "The question of balance of injury may possibly be right, and the court may have a right to consider it on an interlocutory application; but we know of no principle by which equity, otherwise having cognizance of the case, should measure the rights of one party by the cost to the other, committing the injury, to prevent either its commission or its continuance. As it was put in the English cases, it would be a sorry condition of the law if the courts were compelled to hold that the property of another might be taken because it would be either inconvenient or expensive to the one committing the nuisance to restrain or prevent its continuance." (Cited with approval in Krebsv. Hermann, 90 Colo. 61, 70, 6 P.2d 907). There is an admitted pollution of the water here in question. That a greater portion is polluted than is admitted, is clearly shown by the evidence, and the court so found. It further specifically found that this pollution caused immeasurable and irreparable damage to plaintiffs, however, in the language of the court, "without definite or precise evidence." It also made a finding that *Page 327 certain tonnage was not unreasonable and venturing an experiment in connection therewith, affirmatively allowed the mills to discharge 670 tons into the stream daily. We do not find any basis in the evidence for this allowance and believe it to be in conflict with equitable principles, with the statutes, and with the decisions of this court. The court's decree in that respect is inconsistent with its findings and is without support in the evidence. The injunction should have been made full and permanent against any and all pollution, and the defendants should not be allowed to experiment to plaintiffs' further damage. After making a finding that the damage to plaintiffs was great and irreparable, it was inconsistent to require them to pay their own costs even though they obtained only a partial abatement of the nuisance for which they are not responsible and which caused their damage. [4] The acts of the defendants in operating their mills, although contributing in different degrees to the pollution of which complaint is made, combined and taken together operated to produce the damaging results, and each is responsible for the entire resulting damage even though its separate act or neglect alone might not have caused it. In the circumstances neither should escape the effect of a full and permanent injunction. We therefore affirm the finding of the trial court in part, and remand the cause with directions to enter a decree making the injunction full, complete and permanent. MR. JUSTICE BUTLER and MR. JUSTICE BOUCK dissent.