Crane v. Winsor

EmeesoN, J., delivered the opinion of the court: The case comes to this court upon demurrer to the complaint which was sustained in the court below with leave to amend. The plaintiffs elected not to amend, and accordingly final judgment dismissing the complaint passed for the defendants. The demurrer admits the facts as alleged in the complaint. From that it appears that the settlers of “ Herriman’s Fort,” who authorized these plaintiffs to bring this suit in their behalf, many years ago constructed a ditch leading from Butter-field Creek to said settlement, by means of which they appropriated all the water flowing in said creek, and that all the water is needed for agricultural and culinary purposes. That in 1876 the defendants erected, on the banks of said stream and above said settlement, an ore crusher, and commenced and still continue, and threaten to continue in the future, the business of crushing ore therewith. That in the prosecution of their said business, they wrongfully and against the consent of said settlers, take a portion of the water from said stream, and after passing it through their crusher, where it takes up and holds in solution certain chemical poisons contained in the ores, and other poisons used in its reduction, turn it back into the stream, where it mingles with the water flowing down to said settlement. That the -water when it reaches the settlement is rendered so impure and poisonous as to be destructive of both animal and vegetable life. That by reason of its use in this impure state, one person had died, and a large amount of stock had been killed. The prayer, among other things, asks that the defendants be restrained from using the water, in any manner inconsistent with the rights of said settlers, and for damages to be assessed. The question is, does the complaint state such a case as entitles the plaintiffs to the relief asked, or any relief ? Taking [253] tlie statements of tlie complaint as true, we are of opinion that the plaintiffs are clearly entitled to their injunctive relief. They cannot in this action recover damages for the destruction of property owned by them in severalty. The statement of the destruction of property and loss of life consequent upon the use of the water thus deteriorated in quality by the defendants, may be regarded as surplusage, or as a mere evidence of fact going to show that the water was polluted to such an extent as to make it dangerous to life, and unfit for the uses for which it was appropriated. The plaintiffs, as the owners or tenants in common of the water ditch and the water flowing therein, by virtue of their prior appropriation, and the corruption of the water by the defendants is a private nuisance. The right thus secured to the plaintiffs is to have the water flow to them in its natural state. If the use tbe defendants put the water to did not deteriorate it in quality, then the plaintiffs would have no right of action so long as the quantity was not materially changed. Suppose the defendants had diverted all or any considerable portion of the water flowing in this creek, there could be no doubt about the right of tlie plaintiffs to an injunction restraining the defendants from such diversion, upon a bill framed substantially like the one in this case. Taking the complaint as true, the injury to the plaintiffs is more serious than would arise from the mere diversion of the water, from its being rendered dangerous to human life. The rights acquired by the plaintiffs should be protected by the court. The complaint, although inartificially drawn, sets out with sufficient clearness and certainty the character or nature of the plaintiffs’ claim; the character, nature and extent of the interference on the part of the defendants, and the character in which the plaintiffs sue. The injury complained of is to the common property of the plaintiffs, and constitutes a private nuisance. The demurrer should have been overruled. The judgment of the court below is reversed, and the cause remanded, with instructions to overrule the demurrer. SohaeKfeR, C. J., and JBoeemaN, J., concurred.