W. M. MADISON et al. v. DUCKTOWN SULPHUR, COPPER & IRON COMPANY, LIMITED.

SUPREME COURT OF TENNESSEE
113 Tenn. 331; 83 S.W. 658;
1904
OPINION: MR. JUSTICE NEIL delivered the opinion of the Court.

These three suits were instituted separately in the court below, but tried together here. They embrace, in the main, the same facts and the same questions of law, and will be disposed of in a single opinion.

The bills are all based on the ground of nuisance, in that the two companies, in the operation of their plants at and near Ducktown, in Polk county, in the course of reducing copper ore, cause large volumes of smoke to issue from their roast piles, which smoke descends upon the surrounding lands, and injures trees and crops, and renders the homes of complainants less comfortable and their lands less profitable than before. The purpose of all the bills is to enjoin the further operation of these plants . . .

The following general facts are applicable to all of the cases:

Prior to 1870 one Rhat began the operation of a copper mine at Ducktown, and worked it for several years. Subsequently it was owned by the Union Consolidated Mining Company, Mr. Rhat's successor. These operations were continued until the year 1879, and were then suspended until 1891. During the latter year the Ducktown Sulphur, Copper Iron Company commenced operating the properties formerly owned and operated by the Union Consolidated Mining Company, and has continued to operate them ever since. The Pittsburg Tennessee Copper Company began operations at Ducktown about the year 1881, and continued until about 1899, when it sold out to the defendant Tennessee Copper Company. The latter began its operations in 1900, and commenced roasting ores in May, 1901. It has continued its works ever since.

Ducktown is in a basin of the mountains of Polk county, in this State, not far from the State line of the States of Georgia and North Carolina. This basin is six or eight miles wide. The complainants are the owners of small farms situated in the mountains around Ducktown.

The method used by the defendants in reducing their copper ores is to place the green ore, broken up, on layers of wood, making large open-air piles, called "roast piles," and these roast piles are ignited for the purpose of expelling from the ore certain foreign matters called "sulphurets." In burning, these roast piles emit large volumes of smoke. This smoke, rising in the air, is carried off by air currents around and over adjoining land.

The lands of the complainants in the first bill, Carter, W. M. Madison and Margaret A. Madison, Verner, and Ballew, lie from two to four miles from the works. The land of Farner, complainant in the last bill, lies six or eight miles away. The distance of McGhee's land is not shown. . . .

These lands are all thin mountain lands, of little agricultural value. Carter's land consists of eighty acres, assessed at $ 80; Verner's, eighty-nine acres, at $ 110; Ballew's, forty acres, at $ 66; Madison and wife, forty-three acres, at $ 83; W. M. Madison, about one hundred acres, at $ 180; Isaac Farner, one hundred acres, at $ 180. Avery McGhee has seventy-five acres. W. M. Madison has a tract across the Georgia line, and Mrs. Madison also one of one hundred acres there. The assessed value of these last three tracts does not appear. All of these lands, however, lie in the same general section of country, and we assume their value to average about the same, in proportion to acreage.

All of the complainants have owned their several tracts since a time anterior to the resumption of the copper industry at Ducktown in 1891, and have resided on them during this period, with the exception of Avery McGhee, who worked for one of the defendant companies a considerable time, and Margaret Madison, who removed to Snoddy, in Rhea county, two or three years ago.

The general effectproduced by the smoke upon the possessions and families of the complainants is as follows, viz.:

Their timber and crop interests have been badly injured, and they have been annoyed and discommoded by the smoke so that the complainants are prevented from using and enjoying their farms and homes as they did prior to the inauguration of these enterprises. The smoke makes it impossible for the owners of farms within the area of the smoke zone to subsist their families thereon with the degree of comfort they enjoyed before. They cannot raise and harvest their customary crops, and their timber is largely destroyed.

In the first case it is shown that the complainants sold their timber to the first-named defendant, but they were under the necessity of either selling it, or permitting it to go to waste upon the ground; it having been either injured or killed by the smoke. Some of these complainants, however, obtained as much by the sale of their timber to the first-named company as their land cost them.

The facts found in the third case show the following in respect of the situation and injuries of complainant Farner, viz.: "He has lived on his farm since its purchase by him, some twenty or more years ago, and has supported his family, in connection with such other work as men similarly situated do in the support of their families. He has his garden and orchard, and does, or did, raise corn, hay, and such other crops, and also vegetables, as are usually raised in that mountain section of our country. . . .

"The proof in the record shows that the smoke not only causes the wife of complainant to cough, but makes her head ache. It also shows that it has injured and destroyed the timber, or a portion of it, of complainant, and that it injures his crops. The extent to which it has destroyed his timber is a matter of dispute, and it is also a matter of dispute as to the amount of injury it inflicts upon his crops. Some of the defendants' witnesses say that it has destroyed from eight to ten per cent. of the timber on the place. Other witnesses say--and especially the witnesses of the complainant--that it has destroyed from thirty to fifty per cent. of the timber on the place. . . .

"This complainant testifies, in effect, that if this smoke continues from time to time, and from year to year, to envelop his farm, he will have to leave it, because it is injurious to the health of his wife, and that, on account of its injurious effect to his crops, he will be unable to support his family on it.

"There is no material evidence in the record to dispute the effect of this testimony of complainant."

In the second case the finding of facts shows that the injuries to timber and crops and to the comfort of the complainants are much the same as these already stated. But, notwithstanding these facts, it is also found that the lands of at least two of these complainants, Carter and W. M. Madison, have continuously increased in assessed value from 1895 to 1903, inclusive.

There is no finding in either of the cases that the output of smoke by the Ducktown Sulphur, Copper & Iron Company has increased to any extent since 1891, when the business of mining and reducing copper ore was resumed at Ducktown. There is likewise no finding as to this matter in respect of the Tennessee Copper Company since it began roasting ores in May, 1901.

There is a finding that the Ducktown Sulphur, Copper & Iron Company acquired its plant in 1891, and that it has spent several hundred thousand dollars since that time in improving and enlarging the plant.

The court of chancery appeals finds that the defendants are conducting and have been conducting their business in a lawful way, without any purpose or desire to injure any of the complainants; that they have been and are pursuing the only known method by which these plants can be operated and their business successfully carried on; that the open-air roast heap is the only method known to the business or to science by means of which copper ore of the character mined by the defendants can be reduced; that the defendants have made every effort to get rid of the smoke and noxious vapors, one of the defendants having spent $ 200,000 in experiments to this end, but without result.

It is to be inferred from the description of the locality that there is no place more remote to which the operations referred to could be transferred.

It is found, in substance, that, if the injunctive relief sought be granted, the defendants will be compelled to stop operations and their property will become practically worthless, the immense business conducted by them will cease, and they will be compelled to withdraw from the State. It is a necessary deduction from the foregoing that a great and increasing industry in the State will be destroyed, and all of the valuable copper properties of the State become worthless.

The following facts were also found, viz.:

That the total tax aggregate of Polk county for the year 1903 was $ 2,585,931.43, of which total the assessments of the defendants amounted to $ 1,279,533. It is also found that prior to the operations of these companies there lived in the district where these works are located only two hundred people, whereas there are now living in this district, almost wholly dependent upon these copper industries, about 12,000 people.

It is also found that one of the defendants, the Tennessee Copper Company, employs upon its pay roll 1,300 men, and that the average pay roll is about $ 40,000 per month, nearly all of which employees have been drawn from the population of Polk and neighboring counties.

It is further found that one of the defendants, the Tennessee Copper Company, consumes approximately 3,000 tons of coke, 2,800 tons of coal, and 1,000 cords of wood per month, and that it purchases and uses 2,110 carloads of coal, coke, wood, etc., per annum. In the year 1901 it purchased and used approximately 1,100 car loads of cord wood, cross-ties, lumber, and quartz. It was also found that eighty per cent. of these supplies were purchased from, and delivered by, the citizens of Polk county. The aggregate paid out for supplies is not stated in the findings of the court of chancery appeals, and cannot be here stated accurately, but certainly the amount is very large; and it seems from the figures stated that one of the defendants alone, the Tennessee Copper Company, pays out annually in wages in Polk county nearly a half million of dollars. The court of chancery appeals finds that the other company employs between 1,100 and 1,200 people, and from this it may be inferred that the company pays out in wages and for supplies annually nearly as much as the Tennessee Copper Company.

It is quite apparent that the two companies pay out annually vast sums of money, which are necessarily of great benefit to the people of the county, and that they are conducting and maintaining an industry upon which a laboring population of from ten to twelve thousand people are practically dependent; and it is found, in substance, by the court of chancery appeals, that, if these industries be suppressed, these thousands of people will have to wander forth to other localities to find shelter and work. . . .

A judgment for damages in this class of cases is a matter of absolute right, where injury is shown. A decree for an injunction is a matter of sound legal discretion, to be granted or withheld as that discretion shall dictate, after a full and careful consideration of every element appertaining to the injury. . . .

The question now to be considered is, what is the proper exercise of discretion, under the facts appearing in the present case? Shall the complainants be granted, in the way of damages, the full measure of relief to which their injuries entitle them, or shall we go further, and grant their request to blot out two great mining and manufacturing enterprises, destroy half of the taxable values of a county, and drive more than 10,000 people from their homes? We think there can be no doubt as to what the true answer to this question should be.

In order to protect by injunction several small tracts of land, aggregating in value less than $ 1,000, we are asked to destroy other property worth nearly $ 2,000,000, and wreck two great mining and manufacturing enterprises, that are engaged in work of very great importance, not only to their owners, but to the State, and to the whole country as well, to depopulate a large town, and deprive thousands of working people of their homes and livelihood, and scatter them broadcast. The result would be practically a confiscation of the property of the defendants for the benefit of the complainants--an appropriation without compensation. The defendants cannot reduce their ores in a manner different from that they are now employing, and there is no more remote place to which they can remove. The decree asked for would deprive them of all of their rights. We appreciate the argument based on the fact that the homes of the complainants who live on the small tracts of land referred to are not so comfortable and useful to their owners as they were before they were affected by the smoke complained of, and we are deeply sensible of the truth of the proposition that no man is entitled to any more rights than another on the ground that he has or owns more property than that other. But in a case of conflicting rights, where neither party can enjoy his own without in some measure restricting the liberty of the other in the use of property, the law must make the best arrangement it can between the contending parties, with a view to preserving to each one the largest measure of liberty possible under the circumstances. We see no escape from the conclusion in the present case that the only proper decree is to allow the complainants a reference for the ascertainment of damages, and that the injunction must be denied to them . . .

Let a decree be entered and the causes remanded as above indicated.