Appeal from the Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.
Edward F. Treadwell, for Appellant.
Brown & Belford, for Respondent.
By the Court, Norcross, C. J.:
This is an appeal from a judgment following an order sustaining a demurrer to the plaintiff's complaint. The complaint is in the form of a bill in equity to enjoin an alleged threatened injury to plaintiff's agricultural land by poisonous fumes, which it is alleged will be discharged from defendant's smelter. The demurrer was general, and upon the grounds that the complaint does not state facts sufficient to constitute a cause of action or to entitle the plaintiff to the injunctive relief prayed for. The complaint, after alleging that plaintiff and defendant are corporations, the former organized under the laws of California, and the latter under the laws of Maine, and that plaintiff is the owner of a certain tract of agricultural and grazing land comprising about 20,000 acres and situate in Mason Valley and embraced within townships 13, 14, and 15 north, range 25 east, and sections 14 and 15 north, range 26 east, proceeds to allege in substance as follows: The ownership by the
defendant of certain other tracts of land in township 15 north, range 25 east, therein described, upon which it is building, and threatening to build, a smelter for the treatment of copper and other ores from the various mining centers of Nevada, including Tonopah, Goldfield, and Mason, and that upon the completion of the smelter it will be operated to smelt such ores as may be brought to it for that purpose. That the operation of the smelter will result in discharging into the atmosphere fumes containing sulphur dioxide and arsenious acid and other noxious gases and substances, which by the atmosphere will be carried to the property of the plaintiff, and by settling thereon will cause the vegetation to be damaged and destroyed. That the smelter is within three miles of a portion of the lands of the plaintiff and that the fumes will be carried 15 to 20 miles from the smelter and by reason of the destruction of vegetation will destroy the usefulness and value of the plaintiff's lands. That the defendant knows: (a) the character of the fumes to be discharged from its smelter; (b) that other smelters similarly constructed have killed the vegetation surrounding them for a distance of from 15 to 20 miles; (c) that a smelter so constructed and at such a place will discharge poisonous substance upon the plaintiff's lands and destroy their vegetation, to the great and inestimable damage of the plaintiff and of its lands. That the damage caused by the defendant by reason of the matters and things alleged in the bill of complaint will exceed the sum of $200,000, and that plaintiff has no plain, speedy, or adequate remedy at law. The plaintiff then prays for the issuance of an injunction to restrain defendant from carrying on or operating its smelter or from smelting ores therein or proceeding with the work of the construction thereof; that said smelter and its operation be adjudged to be a nuisance to plaintiff's lands and that the operation thereof may be forever enjoined and restrained. There is also incorporated in the bill of complaint a prayer for an injunction pendente lite to restrain the further
construction of the smelter. The complaint was filed December 13, 1911, and the demurrer December 23, 1911. The order sustaining the demurrer was filed January 2, 1915.
From the opinion of the trial judge, embodied in the transcript on appeal, we quote the following excerpt as expressing the views of the judge of the court below upon the law of the case:
It does seem to me, therefore, that before the complaint in this action can be held to be good, allegations of damage having occurrednot problematical damagemust be averred. Undoubtedly defendant corporation would be liable to plaintiff if it, defendant, created a nuisance which injured plaintiff's property. But this condition does not exist here. That which the law authorizes is not a nuisance, and the complaint here does not in any wise charge, either that the plaintiff has been injured at all, nor that the defendant has committed any trespass or caused any injury.
The briefs of counsel, both for appellant and respondent, disclose legal contentions at variance with the views expressed by the learned trial judge. It is the contention of counsel for appellant that the court below did not go far enough, and should have held that allegations of threatened injury were sufficient to constitute a cause of action and to entitle plaintiff to equitable relief by way of injunction. Counsel for respondent contends that the judge's decision went too far in holding that there could be any liability for damage upon the part of defendant smelter company in the absence of negligence, no matter what injury it caused. The contention of counsel for defendant is substantially correctly stated in appellant's opening brief as follows:
FirstThat in the State of Nevada mining and smelting have been declared a public use, and the paramount interest of the state, and the right to condemn private property, under the process of eminent domain has been granted in respect thereto.
SecondThat such a smelter may ...