Woodruff v. North Bloomfield Gravel Min. Co.

Sawyer, J. The master reports that, since the entry of the decree, “mining tailings have been discharged into Humbug creek by the respondent, * * * from its mines described in the bill.” After stating that respondent had run some 2,500 to 3,000 feet of tunnel for drift mining, and carried on drift mining continuously from June, 1884, washing the debris arising from such mining, and from caves of the bank occurring from time to time, washed away by monitors properly located for the purpose, into the creek wherein the debris had theretofore been discharged, and giving particulars of the operations of respondent, he concludes: “1 therefore find and report that since June, 1884, the North Bloomfield Gravel Mining Company, respondent, lias been continuously engaged in practical drift mining in its mine described herein; that in prosecuting, facilitating, and protecting such drift mining operations, said respondent has removed from said mine, and discharged into Humbug creek, a tributary of the Yuba*river named in the decree herein, a considerable quantity of mining tailings; that mining tailings, in much less quantity, have also been discharged from its said mine into said creek, by means of water run from ditches over the banks of said mine; and that thereby said respondent has violated the decretal order of this court, and is in contempt.” No exceptions to the master’s report were filed by respondent, and there was no good ground for exception; but the complainant filed several exceptions upon the ground that upon various points the findings are not so strongly put against said respondent as* the testimony requires, and on the ground that he did not find that the violation of the injunction was willful. The testimony upon which the findings [798] are based was reported in full, in pursuance of the order. After a careful examination of the evidence, I am satisfied that the master has made an intelligent, fair, and impartial report; but it is-certainly fully as favorable to the respondent as it was entitled to expect, and is .sufficient, without modification, in the light of the testimony, to enable the court to make a proper disposition of the question of contempt. The respondent insists that the mining done being “drift mining,” as its counsel term it, and the hydraulic washing performed by means of the monitor being such as was incident to the drift mining, and was necessary to the protection and successful carrying on of drift mining, there was no violation of the injunction. It is insisted that this drift mining, and its incidents, are not w'ithin the terms of the decree; or, if otherwise, that the decree is broader than is justified by the allegations of the bill, and to that extent should not be enforced. I cannot assent to this view. It is true that the bill describes the operations carried on by respondent by means of which the debris is thrown into the streams, as hydraulic mining. But this is only a means by which the debris which works the mischief is discharged into and deposited in the stream, and sent on its destructive course. The thing sought to be restrained is not hydraulic mining,—merely the means by which the debris is discharged into the stream. It is not sought to restrain hydraulic mining in itself, or as an occupation, but only so far as it is a means of injury. The complaint is that the debris is discharged into and deposited in the streams, to complainant’s injury; that “with full knowledge of the irreparable damage to your orator caused, and to be caused, by the aforesaid use of the channels of the foregoing described streams, as a place of deposit and wastage of the tailings of these said mines, * * * they make the announcement of their intention to continue •to use the channels of the Yuba river, and its tributaries, aforesaid, as a place of deposit for their tailings from their aforesaid mining claims,” etc.; and that they “claim a common right to deposit the tailings and debris from their several mines in the Yuba river and its tributaries,” etc. The prayer of the bill is for an injunction, not against hydraulic mining merely, but “enjoining them, and each of them, from discharging or dumping into the Yuba river, or any of its forks or tributary streams, or into Deer creek, any of the tailings, boulders, cobble-stones, gravel, sand, clay, dkbris, or refuse matter, from any of their said tracts of mineral lands or mines; and also from causing or suffering to flow into said creeks, or tributary streams aforesaid, any tailings, boulders, cobble-stones, gravel, sand, clay, or refuse matter therefrom,” etc., and the decree conforms to the prayer, and provides that the said defendants, “and their and each and all of their servants, agents, and employes, are perpetually enjoined and restrained,” not from hydraulic mining, but “from discharging or dumping into the Yuba river, or into any of its forks or branches, or [799] into any stream or tributary to said river, or any of its forks or branches, and especially into Deer Creek, Sucker Flat ravine, Humbug creek, Scotchman’s creek, any of the tailings, boulders, cobblestones, gravel, sand, clay, debris, or refuse matter from any of the tracts of mineral land or mines described in the complaint; and also from causing or suffering to flow into said rivers, creeks, or tributary streams aforesaid, therefrom, any of the tailings, boulders, cobblestones, gravel, sand, clay, or refuse matter resulting or arising from mining thereon.” If respondent can work their mines by the hydraulic process or otherwise, without discharging their refuse matter into the streams, they are at full liberty to do so. This language was carefully considered when the terms of the decree were settled, and I do not think it broader or more comprehensive than either the prayer or the allegations in the body of the bill justified. It can make no difference whether the refuse matter is thrown into the streams by what is strictly called hydraulic mining or drift mining. This can only be a question of degree in the injury resulting. The acts found by the master are clearly within the terms of the decree and the acts complained of. Indeed, if the decree could be limited, as to debris thrown into these streams, to hydraulic mining alone, I think the acts reported by the master, and, especially, as shown by tho testimony taken, constitute “hydraulic mining,” within the proper meaning of the term as used in the bill. There was, certainly, considerable “hydraulic mining” within the narrowest meaning of the term. There is, in my judgment, no matter of estoppel in the observations of counsel made during the progress of the trial. Until reversed, the rights of the parties are settled by the decree and the pleadings upon which it is founded. There is no evidence of the complainant’s having assented to, or having induced, any violation of the injunction since the entry of the decree. The respondent, therefore, must be adjudged to be in contempt. It only remains to determine the punishment that should be inflicted for the contempt adjudged. As this is the first occasion in this court of the kind, and the defendant disclaims any intent to disregard the decree of the court, and its officers profess to believe that mining in the mode pursued by them, which they call “drift mining,” would not be a violation of the injunction, and considering the observations of complainant’s counsel at the trial, I shall not bo severe, in view of the immense interests affected, and the amount of the proceeds of the mine resulting from the violation of the injunction. Considering the amount of work performed, which although far below what had formerly been accomplished, the amount of debris discharged into the streams was by no means inconsiderable. The decree in this case is either right or wrong. If right, there can, properly, be no temporizing or compromise by allowing some wrong to be done. The wrongful acts of filling the streams with the debris, to the injury [800] of parties below, by whatever means accomplished, must be wholly stopped, in all cases, or the rights of the injured parties cannot be efficiently protected. Having no doubt, myself, of the propriety of the decree, in all its parts, it is my imperative duty to hereafter enforce it, if necessary, by all the sanctions afforded by the law. If wrong, it can readily be corrected on appeal. Let judgment for a fine of $1,500 be entered, with costs. As a compensation, in part, for the large expenses that must have been incurred in procuring evidence and prosecuting this proceeding for contempt, the money, when collected, will be paid over to complainant or his solicitors. Let judgment be entered accordingly.