Arizona Copper Co., Ltd. v. Gillespie
230 U.S. 46 (1913)

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U.S. Supreme Court

Arizona Copper Co., Ltd. v. Gillespie, 230 U.S. 46 (1913)

Arizona Copper Co., Limited v. Gillespie

No. 106

Argued January 27, 28, 1913

Decided June 16, 1913

230 U.S. 46

APPEAL FROM THE SUPREME COURT

OF THE TERRITORY OF ARIZONA

Syllabus

In Arizona, by statute, all rivers, streams, and running waters are declared public, and may be used for purposes of milling, mining, and irrigation. The first appropriator is first in right to the extent necessary for his purposes, and neither the user for mining purposes nor the user for agricultural purposes is placed upon a higher plane than the other.

Where users of waters are placed, as in Arizona, upon the same plane, the rights of lesser users are not subordinated to those of greater users, nor is a wrong done by one to the other condoned because of the magnitude or importance either of the public or the private interests of the former.

Where one of several users of waters is wrongfully injuring the others, there is a remedy either at law or in equity, the latter depending upon circumstances, including the comparative injury of granting or refusing an injunction.

Where, as in this case, the record does not show the damage which the injunction might cause the defendant, but does show that the interests of complainant and others of his class might be irreparably injured by a continuance of the nuisance, equity may grant relief.

Page 230 U. S. 47

The limitation of necessary use on the right of an appropriator of water applies to quality as well as quantity, and the right to use necessary water does not include the right to so destroy the quality of all the water not used as to continuously injure the property of the other appropriators.

The maxim sic utere tuo ut alienum non laedas applies in Arizona and elsewhere to the use of water by one appropriator as against another. Although the nuisance may be a public one and others may be damaged thereby, one who shows that he suffers a special grievance not borne by the public may maintain a separate action for equitable relief.

In this case, held that the contamination of waters in Arizona by a copper plant constituted a nuisance as to the lower appropriators and, under the circumstances, an injunction was properly granted, the supreme court of the territory having provided in the decree that the defendant might have the injunction modified on constructing remedial works to prevent contamination. Georgia v. Tennessee Copper Co.,206 U. S. 230.

12 Ariz. 190 affirmed.

The facts, which involve the relative rights of appropriators of water in Arizona and the jurisdiction of a court of equity to enjoin the contamination of the water by an upper appropriator using the water for mining purposes in favor of a lower appropriator using it for agricultural purposes, are stated in the opinion.

Page 230 U. S. 52

MR. JUSTICE LURTON delivered the opinion of the Court.

This is a bill for an injunction to restrain the appellant from polluting a public stream, whereby the appellee has sustained a special injury as a lower proprietor.

The Arizona Copper Company, Limited, is engaged in mining and reducing copper ore near the town of Clifton, Arizona. Its concentration and reduction works, in which ores are treated, are situated upon or adjacent to small streams tributary to the Gila River. Much of the tailings and waste material from the reduction work is carried by the water used in the reducing process into the streams adjacent, or is deposited nearby and is later carried by the rains into the streams, and thence into the Gila River. The appellee, William Allen Gillespie, is the owner of 276 acres of arid land on the Gila River and some 25 miles below the point where the water polluted above finds its way into the river. He has reclaimed this land and brought it into a high state of cultivation through irrigation by means of water drawn from the river into the Montezuma Canal and thence, by ditches, spread upon his cultivated land. In the dry seasons particularly, this water so used for irrigating purposes deposits upon his land the tailings and waste material so suffered to get into the tributaries of the Gila River from the reduction works of the appellant above.

Gillespie and those preceding him in title began the irrigation and cultivation of this tract of land in or about 1872, and have continuously appropriated a sufficiency of water necessary for irrigating purposes from the river. A large body of like land situated in the same valley has been irrigated in the same way by waters drawn from the Gila River by the Montezuma and other like canals constructed and maintained for irrigating purposes, and a large agricultural community has grown up dependent upon irrigation.

Page 230 U. S. 53

In the mountains through which the streams tributary to the Gila River pass are great deposits of rock containing copper ore, and, since 1872, many mines have been operated. Later the ore was treated in reduction and concentration works, which have increased in extent of operations from time to time until, at the time this suit was begun, the capital engaged aggregated several millions of dollars and 3,000 men were employed in and about the mining and reduction operations. Prior to 1885, the operations carried on by the mining companies do not appear to have polluted the tributaries of the Gila to any serious extent. Later, the operations were enlarged and methods adopted which began to more and more seriously pollute the water used for irrigating purpose by the proprietors below. Thus, both courts below found

"[t]hat in or about 1885, the first concentrator was erected for the reduction of ores in connection with the mining enterprise herein mentioned; that, . . . some six to eight years before the institution of this action, the waters of the Gila River at other than flood periods, theretofore clear, became discolored by slimes, slickens, and tailings, and began to deposit such slimes, slickens, and tailings, through the irrigating ditches herein mentioned, in the normal and necessary course of irrigation, upon the lands of the plaintiff and other lands herein mentioned."

The court below further found that the quantity of such waste material carried by the river and deposited upon the lands of the appellee "continuously increased until after the institution of this suit." The harmful and damaging character of these deposits was found in most explicit terms by the court below, and the character of the injury elaborately explained. The appellee's bill alleged that the injury to his crops and to his land was continuous, and that his remedy at law was inadequate, and his prayer was that the appellant be perpetually enjoined from polluting the streams to his injury.

Page 230 U. S. 54

Originally there were two other corporate defendants, and like relief was sought against them. One was found to be improperly a party, and the bill was dismissed as to it. The other defendant was the Shannon Copper Company. As to that company the court below found:

"That after the commencement of this action and before the hearing of this cause, the Shannon Copper Company, in consideration of the dismissal of this action as to it, agreed to spare no reasonable effort or expense to minimize the amount of said tailings and waste material from its said works which may find their way into said river, and, if possible to do so by any reasonable effort and expense, that it would prevent the flow of any of said tailings and waste material from its said works from flowing into said river, and that said efforts should be made at once, and continued without interruption until the object thereof should be accomplished."

The district court made a full finding of facts, and enjoined the appellant from

"in any manner depositing or suffering or permitting to be deposited, or suffering or permitting to flow into the waters of the said Gila River, or into the San Francisco River or said Chase Creek in such manner that there may be carried into the waters of said Gila River any slimes, slickens, or tailings."

This judgment was to go into effect January 1, 1908. But when the record was filed, upon appeal, in the Supreme Court of the territory, that court, upon a bond's being executed, suspended its operation until the case should be determined by it. Upon a final hearing, that court confirmed the findings of fact by the court below, but modified its judgment by permitting the appellant, at its own expense,

"to construct settling basins at or near the heads of the canals, or elsewhere along the river, by means of which the tailings and slimes carried by the Gila River from appellant's concentrators may be arrested and prevented from being deposited upon the farming lands.

Page 230 U. S. 55

'This suggestion,' said the court in its opinion made part of the judgment,"

"does not appear to have been presented to the trial court, and its decree is so drawn that such means of relief may not be availed of, since appellant is enjoined from permitting any of the tailings or slimes to reach the waters of Gila River. We think, to enable the mining company to take advantage of any efforts it may make in this direction, it should be left to the discretion of the trial court hereafter, upon a proper showing made to it, temporarily to modify the injunction so as to permit of reasonable experiments being made to ascertain the probability of successfully erecting and maintaining settling basins to effectually dispose of the tailings and slimes without detriment to the lands lying under the canals, and with authority in the district court likewise permanently to enforce or modify the injunction in accordance with the conditions as they shall be found to be."

Thus modified, the judgment was affirmed. Later, it being made to appear that the appellant had designed and put into operation large settling basins, and otherwise attempted to arrest, settle, and dispose of the slimes, slickens, and tailings from its works, and had succeeded in arresting much of the waste material, and was in good faith operating and maintaining such works, the court suspended the operation of the judgment pending an appeal to this Court.

In Arizona, by statute, all rivers, streams, and running waters are declared public, and may be used for purposes of milling, mining, and irrigation. The first appropriator is first in right to the extent necessary for his purposes.

Whatever advantage there may be in a first appropriation of water is with the appellee. There is no question about the quantity of water appropriated by the upper user, the objection being that the quality of the water which comes down to the lower proprietor after it is used by the copper company is no longer fit for irrigating purposes. Whatever the relative importance of the great

Page 230 U. S. 56

mining and reduction works using the water on the upper reaches of the Gila River and its tributary streams, and of the agriculturists using the same water below, from either a public or private point of view, the right of the lesser interest is not thereby subordinated to the greater. That is sometimes a consideration when a plaintiff seeks relief by injunction, rather than by an action at law for damages. The wrong and injury, whether it results from pollution of a stream or otherwise, is not condoned because of the importance of the operations conducted by the defendant to either the public or the wrongdoer, and for that wrong there must be a remedy. Whether, upon a bill such as this, a court of equity will restrain the acts of the party complained of or leave the plaintiff to his action at law for damages must depend upon the nature of the injury alleged, whether it be irremediable in its nature, or whether an action at law will afford an adequate remedy, and upon a variety of circumstances, including the comparative injury by granting or refusing the injunction. Atchison v. Peterson, 20 Wall. 507.

The court below found that but one of three concentrators operated by the appellant would be affected by an injunction, and that the extent of the hardship from closing that concentrator had not been shown. On the other hand, the court found that the agricultural interests of a large and prosperous community would suffer great injury and possible ruin if the pollution should go on.

The Arizona statute places a water user for mining purposes upon no higher plane than a user for irrigation. The suggestion that the right to use for mining and reduction purposes cannot be exercised without polluting the streams with waste material, tailings, etc., and that the lower user cannot therefore complain of the necessary consequences of the legal right conferred by statute is without force. The only subordination of one water user to another is the right of the first appropriator to a sufficiency

Page 230 U. S. 57

of water for his necessary uses. That includes the quality as well as the quantity. What deterioration in the quality of the water will constitute an invasion of the rights of the lower appropriator will depend upon the facts and circumstances of each case with reference to the use to which the water is applied. Atchison v. Peterson, supra. In giving a right to use the waters of the public streams for mining purposes, the statute does not provide that such a user may send his waste material or debris down the stream to the destruction or substantial injury of the riparian rights of users of water below, and no such invasion of private property rights should be inferred or implied from the right to use water for mining purposes. Woodruff v. North Bloomfield Gravel Mining Co., 9 Sawy. 441, 18 F. 753. The maxim sic utere tuo ut alienum non laedas is as fully recognized in the jurisprudence of Arizona as it is elsewhere, and that was the maxim which governed the decision of this case in the courts of Arizona.

That the contamination of the waters of the Gila River constituted a public nuisance which affected a large community of riparian owners and users of the waters for purposes of irrigation may be true. That, as a public nuisance, a public prosecution for its abatement might have been maintained may be also conceded for the purposes of this case. But it is equally true that the appellee had and would continue to suffer a special injury not borne by the public.

Here, the appellee alleged a special grievance to himself affecting the enjoyment and value of his property rights as a riparian owner, and as an individual user of the water for purposes of irrigation. This gives him a clear right to apply for preventive relief. Georgetown v. Alexandria Canal Co., 12 Pet. 91, 37 U. S. 98; Mississippi & M. R. Co. v. Ward, 2 Black 485.

The modification of the decree of the trial court so as to enable the appellant to complete the construction of the

Page 230 U. S. 58

remedial works specified and heretofore mentioned met every reasonable equity which was asserted by it. It is in substantial accord with the decree of this Court in a somewhat similar case, Georgia v. Tennessee Copper Co.,206 U. S. 230. We find no error in the decree of the court below, and it is accordingly

Affirmed.

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