Bliss v. Washoe Copper Co.

1. Appeal akd Error (§ 1022*') — Review—Findings of Fact by Master Approved by Trial Court. Findings of a trial court, made on conflicting evidence, and affirming those of a master before whom the witnesses testified as to the damage done to farmers by smoke and fumes from a smelter, especially where both the judge and the master had the benefit of a personal inspection of the premises, are to be taken as presumptively correct, and will not be reversed by an appellate court, unless some serious or important mistake has clearly been made in the consideration of the evidence. [Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 4015--4018; Dec. Dig. § 1022.*] 2. Nuísance (| 23*} — Enjoining Lawful Business — Comparative Injuries. Complainant, the owner of a farm, which he rented, situated in Deer Lodge Valley, Mont., brought suit to enjoin the maintenance and operation by defendants of the Washoe Copper Smelter, on the edge of the valley, on the ground that the fumes and the sulphur and arsenic precipitated from the smoke from the smelter injured the crops and forage on the farm and poisoned the stock thereon, as well as on the other farms in the valley within what was called the “Smoke Zone,” and made it a public nuisance. The suit was really brought in behalf of a large number of farmers who were joined in an association. The trial court found, affirming findings of a master, that some injury had resulted to complainant’s and other farms in the valley prior to 1003 for which defendants had paid, but that in such year they had reconstructed the plant at large expense adopting the best known methods for the purpose, and with the effect, of lessening such injury, and that since that, time the property of complainant and of the other farmers within the Smoke Zone had been affected only in a very slight degree: that the smelter had been built at a cost of nearly $10,000,000 and treated 7,000 tons of ore per day, being two-thirds or more of that produced in the Butte district; that its output of copper was from 17 to 20 per cent, of 'all that produced in the United States; that the operation of the smelter and the mines tributary thereto constituted one of the chief industries of the state on which a large part of the population of Butte and Anaconda depended, directly or indirectly, for a livelihood and the farmers of the valley for a market ; that no better location, if as good, could be found elsewhere in the- state for the smelter; and that its closing or removal to a distance would necessitate the closing of most of the mines, owing to the low grade of the ore. Held, that on such facts, and under the rule that in such cases it is proper to consider all the facts and circumstances to determine the equities, including comparative damages, the granting of the injunction would necessarily operate contrary to the real justice of the case, and that, it was properly refused. [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 55-59; Dec. Dig. § 23.*]

Appeal from the Circuit Court of the United States for the District of Montana. Suit in equity by Fred J. Bliss against the Washoe Copper Company and the Anaconda Copper Mining Company. Decree (167 Fed. 342) for defendants, and complainant appeals. The appellant, a citizen and resident of the state of Idaho, commenced this suit in the court below on-the 4th day of May, 1905, against the appellees, each of which is a corporation of the state of Montana, to obtain an injunction permanently restraining them from operating a large smelting plant known as the “Washoe Smelter,” situated about a mile and a half southeast of the city of Anaconda, Mont., and from there treating certain ores containing poisonous substances. In his bill the complainant alleged: His ownership of 320 acres of land situated in Deer Lodge Valley, Mont., and about 5 miles in a northeasterly direction from the said smelter. That during the year 1902 the defendant companies constructed the smelting plant mentioned on the south slope of Deer Lodge Valley contiguous to a large farming neighborhood, consisting of over 100 square miles of improved farming lands, all of which is in that portion of Deer Lodge Valley affected by the smoke and fumes from the said smelter, and which portion is in the bill designated as the “Smoke Zone.” That at all times prior to the construction of the Washoe Smelting Plant the portion of the valley designated as the “Smoke Zone” was a rich and fertile farming country, well watered, and well adapted to raising sheep, cattle, horses, and other live stock, as well as producing large and'valuable yields of wheat, timothy, clover, alfalfa, wild hay, and such other grains and cereals as can be profitably grown in that latitude, and was also n oli adapted to the raising of profitable crops of berries, garden truck, vegetables, and other farm products, for all of which there was a ready sale at profitable prices. That a large number of the farmers referred to settled in the valley as early as 1865, and proceeded to cultivate, fence, and improve their lands, and to build many good substantial homes there,' and it became a rich and prosperous neighborhood, and would continue to be such but for the acts of the defendants complained of. That the farmers residing in the “Smoke Zone” number over 100, and own and possess over 50,000 acres of improved tracts, keeping thereon a large amount of stock, horses, cattle, and swine, pursuing the business of farming as a moans of livelihood. That all of said farmers are similarly situated as the complainant and are similarly affected by the smoke and fumes from the said smelting plant. That during the summer of the year 1908 the defendants remodeled their said smelting plant, completing such remodeling about September 1st of that year by constructing a large brick stack and connecting it by large flues with the smelting plant, since which time they have been and are now engaged in mining and producing large quantities of ore, amounting to about 7.000 tons a day, which ores contain large quantities of arsenic, sulphur, antimony, copper, and other noxious and poisonous substances, and which ores the defendants there treat, reduce, and refine, thereby causing large quantities of sulphur, sulphuric acid, sulphurous acid, arsenic, copper, and other noxious and poisonous substances to be freed and to be carried through the flues connected with the smelter to the smelter stack and there discharged into the atmosphere, which noxious and poisonous substances are carried by the winds and air currents over, above, and upon that portion of the Deer Lodge Valley known as the “Smoke Zone,” and upon the land of the complainant, depositing large quantities of sulphurous acid, sulphuric acid, sulphur dioxide, arsenic, antimony, «wper poisons, and other noxious and poisonous substances over the said “Smoke Zone,” and more especially upon the complainant’s said land, poisoning, burning, and dwarfing the crops growing on the land driving the summer season of 100i,- and poisoning all the soil in the “Smoke. Zone” and the hay, grasses, and grain growing thereon, poisoning all the live stock in the said valley, causing large numbers of horses, sheep, and cattle and swine so poisoned to sicken and a great many to die from the effect of the poisoning, to the extent that the land In the said “Smoke Zone” is rendered wholly worthless for stock raising or farming purposes, so long as the defendants continue to operate their said smelter in the treatment of said ores. That the said precipitations of said poisonous and noxious substances from the said smelter fumes and smoke are insidious and cumulative, and great damage is done before the farmers are aware of the presence of the said poisonous and noxious substances so precipitated, as its presence is only shown by general sickness of live stock, and the general burnt, stunted, and dwarfed condition of the crops and vegetation. That each year, if the smelter continues to be operated, the soil of the said “Smoke Zone” would become more highly impregnated with- such poisonous substances, and that finally no crop or vegetation can be produced there. That more than $2,000,000 worth of real and personal property, owned by the farmers, is situated in the “Smoke Zone,” and is now being damaged by the smelter fumes and the poisonous ingredients contained therein, and will ultimately he entirely destroyed by the continued operation of the said smelter. That the homes of the said farmers will be destroyed, and that they will be compelled to migrate. That the poisonous ingredients contained in the fumes of the said smelter have killed nearly all the trees in the “Smoke Zone,” and have killed and injured the trees and timber for many miles around the plant, rendering Deer Lodge Valley and the country adjacent to the smelter “barren and desert like.” That the rental value of the complainant’s land prior to the construction and operation of the said Washoe Smelter was $1,000 per annum, and that its present value will not exceed $300 per annum, because of the said noxious and poisonous substances precipitated thereon from the smoke and fumes of the said smelter. That the complainant’s land prior to the acts complained of was of the value of $12,000 and was capable of producing large quantities of hay, grain, and other farming products of good quality, and will continue to do so but for the alleged wrongful acts of the defendants, which have already damaged Mg land to the extent of $20 an acre. That the crop season of Deer Lodge Valley commences about the 1st of May and continues until about October 1st, and that if the said smelting plant continues in operation during the summer season all the crops in the “Smoke Zone-’ will either be destroyed or be so injured in quality that they cannot be consumed or sold, and that the damages which will be caused by its continued operation are of such a nature that it would be incapable of correct computation, and that neither the complainant nor the other farmers referred to have any adequate means of arriving at the damages which may be hereafter sustained by the lands and the' crops growing thereon. That, in order to prepare damage suits for trial, it is necessary to procure chemical tests of the lands and grasses, as well as the smoke emitted from the smelter, and to procure the services of veterinary surgeons to examine the live stock affected and dying from the mineral poisons emitted from the smelter, and to procure chemical analysis of portions of animals infected by said poisons, and which have died as a result thereof. That it requires several thousand dollars to prepare a suit for trial on the part of any one farmer, and that, as such actions at law would greatly multiply, it would be difficult to obtain qualified jurors to try them, and the expense thereof would be so great that the complainant would be unable to institute or maintain such actions. That each crop season will bring new causes of action in favor of the complainant, with the other farmers mentioned, against the defendants, growing out of the continued operation of said smelter, and that the defendants will continue its operation and alleged wrongful acts complained of unless restrained from so doing. In an amendment to his.bill, the complainant alleged, among other things: That the defendants pretend.that the business of smelting and reducing the ores of the character of those being treated at the Washoe Smelter has been carried on at substantially the point where that smelter'is located for a period of more than 20 years; whereas, the complainant charges the truth to be that no smelting has been carried on at or near the point where the said Washoe Smelter is constructed at any time prior to its construction there, and that the smelting plant operated by the Anaconda Mining Company and the Anaconda Copper Mining Company, designated as the “Old Works’,” was constructed at a point north of and one mile distant from the said Washoe Smelter, on the north side of Warm Springs Creek Canyon,, where the prevailing winds during the operation of the smelting plant constructed by the Anaconda Mining Company was westerly and northerly over the mountains and foothills lying adjacent to the aforesaid “Smoke Zone,” and precipitated the sulphur, sulphuric acid, sulphurous acid, arsenic, copper, and other noxious and poisonous substances, which were freed from the ores being treated at the said Old Works, upon the foothills and mountains lying northerly and westerly, and adjacent to that portion of Deer Lodge Valley termed the “Smoke Zone,” and that no known damage was caused by the operation of the smelting plant known as the Old Works. That the site of the Old Works is and was a fit and convenient place for the construction and operation of the said Washoe Smelting Plant for the reason that the prevailing winds are northerly and westerly over the foothills and mountains, and cause no damage to the complainant or to any property situated in that portion of Deer Lodge Valley referred to as the “Smoke Zone.” That the defendants further pretend that no protest or objection was made to the construction of said Washoe Smelter, but that the truth is that the complainant and the other farmers residing in the “Smoke Zone” had no knowledge or notice that the prevailing winds would carry the smoke and fumes from the said Washoe Smelter over the lands situated in the “Smoke Zone,” but believed that they would carry ’the said smoke and fumes from said smelter in the aforesaid northerly and westerly direction over the mountains and foothills, as had been done during the operation of the Old Works. That the defendants pretend that the city of Anaconda is the most suitable and appropriate place for the operation of their said smelting plant; whereas, the complainant alleges that several large copper smelting plants are being operated in the state of Montana, treating the same kinds and classes of ore as are now being treated in the said Washoe Smelter, without objection or litigation, and where little or no damage can be done, as the said smelting plants are not situated contiguous to or near any farming country -that is to say, at the city of Butte, at the city of- Great Falls, and at the city of Helena — and that there are numerous places in the state of Montana where smelting plants could be operated similar to the said ,Washoe Smelter, for the treatment of such ores, without damage or injury to the adjacent country. That the defendants allege that they have used all reasonable means to prevent the damage complained of; whereas, the complainant alleges the fact to be that the poisonous substances complained of can be precipitated and impounded at the said Washoe Smelter, with very little extra cost to the defendants in the treatment of their ores. The defendants by their answer admit the construction of the Washoe Smelter in the year 1002, at the place mentioned in the bill, and its subsequent continuous operation, except during a period of several months in the summer of 1903, during which its operation was discontinued while the plant was being remodeled and connected with certain large, newly constructed flues, and the new smokestack thereinafter referred to. Defendants admit the remodeling of the plant as stated in the bill, which they allege cost many millions of dollars; the reason for such remodeling and expenditure being alleged substantially as follows: That after the Anaconda Copper Mining Company had abandoned its old works, hereinafter referred to, and transferred its operations to the Washoe Smelter, complaint was made by nearly all of the farmers within the territory referred to in the bill as the “Smoke Zone” that such large quantities of sulphur, arsenic, copper, and other obnoxious substances were discharged in the air through the several smokestacks with which said smelting plant was then operating that the crops and live stock within such territory were being poisoned and injuriously affected, to the great damage of their owners, and that claims for damage, on account thereof, to the amount of several hundred thousands of dollars, were presented by ,-uch ranchmen to the Anaconda Copper Mining Company; and that inasmuch as the ores being treated were copper ores, and were known by the defendants to contain large quantities of copper and some quantities of sul-phur and arsenic, the defendant Anaconda Copper Mining Company investigated the complaints, and, although not satisfied that any considerable damage was being caused as claimed, nevertheless compromised and settled such claims, paying out on such settlements an amount exceeding $300,000. That in the course of such investigation the said company became satisfied that, by the construction of large flues with dust chambers and the erection of a new stack upon a high elevation at some distance from the smelting plant, a very large percentage of the substances theretofore escaping into the air and by the farmers claimed to be damaging to their stock and crops could be retained and prevented from escaping and being carried over or upon the lands of the farmers, and that, for the purpose of effecting that result and of avoiding any damage to lands, animals, or crops within the territory referred to as the “Smoke Zone,” the said remodeling of the plant was effected and tile use of the old smokestacks discontinued. That the effect of the remodeling and the use of the new flues, dust chambers, and the new smokestack was to discontinue and prevent the discharge into the atmosphere of a very large part and most, of the dust and other substances complained of which had theretofore been discharged into the air from the smokestacks. That some quantities of the substances mentioned are still discharged into the air through the new smokestack, and that the smoke therefrom containing such substances is carried and disseminated by air currents over a very large area of country, including at times the territory referred to in the hill as the "’Smoke Zone”; but the defendants deny that such substances are carried or disseminated over the said lands in quantities sufficient to injure in any degree whatever the lands, vegetables, live stock, or other property within any of the territory mentioned, and deny that the operation of the said Washoe Smelter, since its remodeling, has occasioned any inconvenience, discomfort, annoyance, or loss of any kind to the complainant or to any other persons residing or owning property within the territory referred to as the “Smoke Zone,” and deny that the continued operation of the said plant will or can injuriously affect in any manner such persons. That the defendants have, regardless of cost, adopted the best and most modern appliances and means and methods of treating and reducing the ores which are treated at their smelting plant, not only for tlie purpose of effecting the greatest possible say-, ing of the valuable contents of such ores, but also to prevent possible annoyances and injury to the inhabitants and property owners of the territory referred to in the bill, and aver their willingness to continue to do all within their power to effect such results in the future. That there is at the present time no method known by which ores of the character now being treated by the said smelting plant can be treated with less contamination of the air or less discharge into the air of the substances complained of, and they deny that there has been any negligence in the construction or operation of their said plant. The defendants admit that the said Washoe Smelting Plant has been and is being operated by the defendant Anaconda Copper alining Company, and deny that it has ever been operated, or that any ore has ever been treated at it by the defendant Washoe Copper Company, and they admit that the defendant Anaconda Copper Mining Company has treated, in addition to its own ores, the ores of other corporations and ores purchased by it. They deny that the Deer Lodge Valley, or any portion thereof, designated in the bill as the “Smoke Zone,” was ever a rich or fertile farming country. They allege that the soil of the valley is for the most part thin and poor, and that it is in many places heavily charged with alkali, and they deny that it is well adapted to stock growing, but admit that some parts of the said valley are fairly adapted to the growth of hay, vegetables, and to the care of live stock. The defendants admit that since the 1st day of September, 1903, the defendant Anaconda Copper Mining Company has been treating and reducing at the Washoe Smelter large quantities of ore, upon some days as much as 7,000 tons, though not always so much, and that the ores so treated contain much copper and some quantities of arsenic and sulphur. They deny that any considerable or injurious quantities of sulphuric acid, sulphurous acid, sulphur dioxide, arsenic, antimony, copper, or of any one of such substances, or of any other noxious or poisonous substances, have been deposited upon the lands of the complainant, or upon any other lands within the territory described as the “Smoke Zone,” or that any crops in the year 1901 were, on account of any such deposit or the operation of the said smelting plant, poisoned, dwarfed, burned, or in any manner injured, or that any live stock died or was made sick, or was to any extent injured by reason of any of the substances aforesaid escaping from the said smelting plant, or that the Deer Lodge Valley, or any portion thereof, has been rendered worthless, or to any extent affected for. stock raising or for farming purposes, or that the same will be to any extent affected for such uses by the operation of the said smelting plant. They deny that $2,000,000 of real and personal property are situated within the said “Smoke Zone,” and allege that the total value of all personal and real property within that territory is less than one quarter of that sum. They deny that the Doer Lodge Valley, or the country adjacent thereto, is barren or desert like as the result of the operation of the said smelter, or from any cause. They allege they do not know and cannot state what the rental value of the complainant’s land was prior to the construction and operation of their smelter, or what it now is. They deny that the said land, or that any of the land mentioned, has been rendered less profitable or useful by reason of the descending thereon of the smoke or fumes from their smelter, and deny that the products of such lands have been rendered innu-tritious or unwholesome for feeding purposes, or that the market value thereof has in any respect been impaired or affected. They allege that during the time mentioned in the bill all products of the lands within the territory described as the “Smoke Zone” have found a ready market and have been disposed of at high prices when offered for sale. They admit that unless restrained by injunction the operation of their smelter will be continued as at present, and allege that each of the defendants is solvent and amply able to respond in damages to the full extent of many times the total value of all of the lands and of all of the personal property within the said “Smoke Zone.” They deny that, in case any damage should at any time be sustained by the owner of any property within that territory, it will be necessary for the person so damaged to expend any large amount of money or be at any great trouble or expense in making proof of such loss, even if litigation should be necessary; and they further aver that the defendant Anaconda Copper Mining Company is not only aide, but willing without litigation, to pay all damages which hare been or may be sustained to property, arising from the operation of the said smelter, when reasonably satisfied that such damages have been caused. Further answering, the defendants aver: That the business of smelting and. reducing of ores of the character now being treated at the said Washoe Smelling Plant has been carried on extensively at Anaconda, in Deer Lodge county, and at substantially the point where the said Washoe Smelter is located, for a period oí more than 20 years, and without any complaint or objection upon the part of the complainant or of any farmers or property owners within the territory called the “Smoke Zone” prior to the year 1002. That the business now being carried on by the defendant Anaconda Copper Mining Company, as stated, has been carried on by it continuously since the year 1805; the same being conducted prior to the year 1805 at certain works erected about the year 1884 and in subsequent years, by a Montana corporation known as the Anaconda Mining Company. That a great majority of the residents of Deer Lodge Valley and of the said “Smoke Zone” have become such since the construction of such works by the Anaconda Mining Company. That, prior to the construction of such works by that company, the residents of Deer Lodge Valley were few in number, widely scattered, and practically without any market for their farm or other products, or for their live stock. That about the year 1881 the Anaconda Mining Company was the owner of large and valuable mining claims in the vicinity of the city of Butte, in Silver Bow county, Mont., which claims were beiug extensively worked and were producing large bodies of ore, and that it, became necessary that extensive reduction works be constructed for the treatment of such ores, and that the point where the city of Anaconda now stands was selected as a ñt and appropriate placo for the construction of such works because of the natural facilities offered for the conduct of the business of smelting ores, and without any objection or protest on the part of the complainant or his predecessors in Merest, or of any other persons residing anywhere within the Deer Lodge Valiev, the Anaconda Mining Company expended, with the knowledge upon the part of all of such persons at the time of such expenditure, the sum of several millions of dollars in (he construction of such works. That upon their completion, and about the year 1884. the Anaconda Mining Company began to treat, and continuously thereafter and down to the year 1895. and the transfer of the said works to the defendant Anaconda Copper Mining Company, did treat, several thousands of tons of ore per day at said works. That said ores were of substantially tbe same character, containing the same substances as the ores now being treated, and that there was during the whole of such operation discharged into the atmosphere from the smokestacks of the said works sulphur, arsenic, copper, and the substances generally complained of by the complainant which, during all of said time, were carried by the cúrrente of air, as the same now are, over the land of the said valley and the lands of, the said “Smoke Zone” without, object ion, protest, or complaint on the part of the owners thereof. That from time to time, from the year 1884, down to the time of the erection of the said Washoe Smelter, many repairs, additions, and improvements wore made io the old works, many hundreds of thousands of dollars being expended in the making thereof, all with the knowledge of and without any objection upon the part of the owners of the land alleged in the complaint to belong to the complainant, or owners of other lands in the lvalley, and without any suggestion of damage on the part of any of such persons on account, of such smelling operations. That, at the time of the commencement of the erection of such old smelting works, the present site of the city of Anaconda was vacant, unoccupied land; but that, in consequence of such works and (lie employment of many men in and about the same, a village was founded which grew into the present city of Anaconda, wherein, according to the best information of the defendants, resides now a population of from 10,000 to 12,000 people. That the growth of the city of Anaconda has been gradual, and the same has been mainly caused by the continued conduct of such smelting business. That nearly the whole of the population of the city of Anaconda is dependent directly or indirectly for means of subsistence upon the continues operation of the said Washoe Smelter. That nine-tenths of the inhabitants of said city of Anaconda would be compelled to remove from the same in order to obtain a livelihood if said smelter should be permanently elosed. That the city is substantially built, and that many hundreds of thousands of dollars have been expended in the construction of permanent homes by residents of the city and in the erection of public buildings. That there is no reason to believe that any of the inhabitants of that city would have established their homes there if the same had not been selected, as above stated, by the defendant Anaconda Mining Company for the conduct of its said smelting business. That the city of Anaconda has furnished, since the year 1884, the principal market for the products of the Deer Lodge Valley. That nearly all of the hay, alfalfa, grains, and vegetables produced since that date in said valley find a ready market, at high prices, in said city of Anaconda, and that the continual enlargement of the market at Anaconda, as a result of the growth of the city and the increase of such smelting operations, has led .to corresponding increase in the production of the crops in the Deer Lodge Valley, and particularly in that part thereof called the “Smoke Zone,” with a corresponding increase of revenue to the owners of such lands. That, aside from the city of Anaconda, the only near market for any of the products of the said valley is the city of Butte, in the county of Silver Bow, Mont. That in the year 1S95 the defendant Anaconda Copper Mining Company was organized for the purpose of acquiring the properties of the Anaconda Mining Company aforesaid, and in said year all of the properties and rights of the Anaconda Mining Company were, for a valuable consideration, sold and conveyed to the Anaconda Copper Mining Company, which at once entered into the occupation and possession of the same, and continued the aforesaid business of mining and smelting ores. That the smelting of ores was continued, without substantial change, by the Anaconda Copper Mining Company at the old works until the completion of the Washoe Smelter in the year 1902, when it leased of the Washoe Copper Company said smelting plant for the" purpose of continuing its aforesaid business, and, after entering into the possession of the Washoe Smelter in that year, said Anaconda Copper Mining GomiJany has continued the said business of conducting its smelting operations at the Washoe Smelter. That, having transferred its smelting operations to the Washoe Smelter, the Anaconda Copper Mining Company took down and demolished the old works, and now has no other available means of smelting or reducing the ores mined by it or by the other companies after-wards referred to than by the use of the Washoe Smelter. That the construction of the Washoe Smelter occupied several years of time and involved an expenditure of several millions of dollars. That the facts and transactions already stated were, as they occurred, well known to all of the inhabitants of the Deer Lodge Valley, to the complainant, and to his predecessors in title. That the capital stock of the Anaconda Copper Mining Company is owned by many hundreds of persons residing in many states of the Union, and in foreign countries, who have acquired and paid for the same with knowledge of the long and continued conduct of such smelting business at Anaconda, and of the fact that the same had been so long conducted without protest or objection on the part of the owners of lands in the vicinity, and in the belief that the said business would be permitted to continue without protest or objection. That the ores treated at the Washoe Smelter are mined in the vicinity of the city of Butte, mainly from mines owned by the Anaconda Copper Mining Company, the Trenton Mining & Development Company, which has succeeded to the properties formerly owned by the Colorado Smelting & Mining Company, the Butte & Boston Consolidated Mining Company, the Parrot Silver & Copper Company, and the Washoe Copper Company. That, in addition to the ores mined by these companies, some other ores and some custom ores are smelted. That the city of Butte has a population of 60,000 people, or- about one-fifth of the entire population of the state of Montana, and has grown from a small mining camp, having a population of a few hundred people, within the last 30 years, owing to the opening up and development of its copper mines. That the entire population of the city of Butte depends directly or indirectly upon the continued operation and production of said mines for their means of livelihood. That the mines aforesaid employ many thousands of persons, and in addition thereto a great number of persons have established different branches of business and industry in the said city of Butte, all of which said business is dependent upon the continued operation of the mines. That the city is substantially built, and many millions of dollars have been spent by the inhabitants of the city in the erection of permanent business blocks and residences in said city. That, since the erection of the reduction works by the Anaconda Mining Company at Anaconda. the value of the product of the Butte mines has exceeded the sum of $500,000,000, and at the present time the product of the said mines has a value of about $45,500,000 per annum. That about three-fourths of all of the ores mined at Butte are treated and reduced at the Washoe Smelter, and that if the latter should be closed no present means exists by which such ores could be treated, and their production would need to be discontinued. That all of the country surrounding the city of Butte and the city of Anaconda is mountainous iircharacter, sparsely settled, offering means of livelihood to but a comparatively few people. That the area of agricultural land is very limited, and the market for such products as are raised upon such agricultural lands is practically limited to the ei1 íes of Butte and Anaconda. That there are employed in the said reduction works, and in the mines of the companies above specially named, an average of about 8,000 men per month, all of whom are absolutely dependent for their livelihood and continued employment upon the continued operation of said mines aiid smelter. That the said mining companies and the said smelting plant pay to the men employed therein more than $7,000,000 per annum, and that Hie said mining companies expend approximately $1,500,000 per annum for coal, more than $1,000,000 per annum for coke, more than S200.000 per annum for lime rock, approximately $500.-000 a year for lumber. $500,000 n year for machinery, and $.‘150,000 a year for freight. That a large percentage of the said supplies are furnished from mines, factories, mills, and quarries located in the state of Montana, all of which furnish employment to additional thousands of men residing in different parts of the state, and that to a very large extent the state of Montana outside of the cities of Butte and Anaconda is dependent for its continued prosperity and industry upon the continued operation of said mines and said reduction works. That neither the said Anaconda Copper Mining Company nor any of the said companies, if prevented from reducing and smelting its ores at the said Washoe Plant, can find any more suitable place In the state of Montana to conduct the business of smelting or reducing ores, or any other place within the said state where the said industry could be carried on with less injury to agricultural lands or to persons or property than where the same is now located, and that if it were necessary to remove the said ores from the state of Montana to reduce, or dispose of the same, the cost of such removal would be so great that further mining of such ores would become impracticable, and that it would be necessary to discontinue such mining business. That the city of Anaconda is the county seat of the county of' Deer Lodge. That 1he total assessed value of the real and personal property of said county for the year 1904 was $8,120,826. That of such amount the sum of $4,058,573 was assessed against the property of the defendants. That the granting of the injunction prayed for would render all of the property of the defendants within said county valueless and would cause such a depreciation in other property now subject to assessment that it would be impracticable to continue the county organization of the county of Deer Lodge with such sums as might be raised by the assessment of the property therein. That the city of Butte is the county seat of the county of Silver Bow. That, of the laxes annually collected in that county, about 40 per cent, is collected from the assessment of the mines and the net proceeds of the mines therein. That the county of Silver Bow furnishes about 25 per cent, of the total taxes collected by the state of Montana, and that, if the relief prayed for by the complainant be granted, all the property withiu the county of Silver Bow would he depreciated to such an extent as to seriously impair the revenue of the state and to render impracticable the continuance of the local county government. That the granting of the relief prayed for would work permanent and irreparable injury to the complainant and to all others owning property within the territory called the “Smoke Zone,” which injury would re-suit directly from the destruction of the market for the products of such lands and in loss of market value to the lands, and'that the damages which would be sustained by the complainant and the owners of such lands would, with respect to each of said persons, be greatly in excess of any possible damage that they may sustain by reason of the continued operation of the said Washoe Smelter as it is now being operated. That the complainant, his predecessors in title, and all other owners of land within the territory designated as the “Smoke Zone,” have for years stood by and watched the growth and development of the said smelting industry, the investment of millions of dollars by the said corporations in the development of the said mines and the construction of said smelters, the investment by citizens of Anaconda and Butte of millions of dollars in the development and permanent growth of those cities, with full knowledge thereof, and well knowing that the ores, so being mined and treated contained copper, sulphur, arsenic, and other substances complained of, and that the xiroeess of treatment necessarily caused elimination and discharge into the atmosphere of such substances, well knowing what, if any, effect such discharge did and would have upon vegetables and animal life and the productiveness of the soil, and well knowing that said sums were being continually invested, and that the amount so invested was continually increasing; and yet they have failed and neglected during all of said years, until, as above stated, to complain, protest, object, or in any manner notify such corporations or persons of any damage sustained, or any objection upon their part to the conduct of such business, well knowing that said corporations and persons were constructing such works, developing such mines, erecting such buildings, making such improvements, and investing their money therein in the belief and in reliance upon the acquiescence of any consent to the continued conduct of such mining and smelting business and upon the part of the complainant, his predecessors in title, and all other owners of land or personal property within the territory designated the “Smoke Zone.” And that the complainant is and ought to be barred and estopped from claiming relief in equity by reasons of his laches and delay in the premises. Further answering, the defendants deny that no smelting has been carried on at or near the point where the said Washoe Smelter has been constructed, prior to its construction. They deny that there has been any substantial difference between the location of the'old works of the Anaconda Mining Company and the Anaconda Copper Mining Company and the site of what is designated in the bill and the answer as the “Washoe Smelter,” and allege the fact to be that the old works were situated upon the northerly side of Warm Springs Canyon, and that the Washoe Smelter is on the southerly side said process cannot be carried on without causing to be released and discharged into the atmosphere certain quantities of sulphur and arsenic; and that no known site exists in the state of Montana where such operation could be carried on with less damage and inconvenience to surrounding property and inhabitants than the present site of said reduction plant; and that, if it became necessary to remove and transport the said ores without the boundaries of the state of Montana, the increased cost of handling the said ores would be such that, because of their low' grade character, over 90 per cent, of the same could not he mined or smelled at all.' “(24) That the ores treated at the Washoe Smelter are mainly mined in the vicinity of the city of Butte, and almost wholly from mines owned by the Anaconda Copper Mining Company, the Trenton Mining & Development Company, the Butte & Boston Consolidated Mining Company, the Parrot Silver & Copper Company, the Washoe Copper Company, the lied Metal Mining Company, and the North Butte Mining Company. In addition to the ores mined by these companies, some other ores are smelted for small operators mining at and in the vicinity of said city of Butte. ‘•(25) That the city of Butte has a population of over 70,000 people, or more than one-fifth of the entire population of the state of Montana, and has grown from a small mining camp with a population of a few hundred people, within the last 30 years; said growth being due almost entirely to the opening up and development of the copper mines of the above-named corporations. That practically the entire population of the city of Butte depends very largely directly or indirectly upon the continued operation of the said mines as thoir means of livelihood. That, in addition to the many thousands of persons employed in the mines aforesaid, a large number of persons have adopted different branches of industry in the city of Butte, practically all of which said business is dependent to a very large extent upon the continued operation of the said mines. That the said city of Butte is substantially built, and about $50,000,000 have been spent by the inhabitants of the city in the erection of permanent business buildings, residences, and public buildings ip said, city. That about two-thirds of all of the ores mined at Butte and vicinity are .treated and reduced at the said Washoe Smelter, and that none of the companies or persons above named and referred to, the ores of which are being treated at said Washoe Plant, has any smelting or reduction plant where the same could be reduced other than at the Washoe Plant, and that, if the said plant should be closed, no means exists by which said ores could be1 treated, and the closing of said plant would necessarily cause the cessation of two-thirds of the mining operations carried on at said Butte City and vicinity, with a more than proportionate disastrous effect upon the property owners and inhabitants of said city, of whom by far the greatest number would be obliged to leave the city of Butte, and state of Montana, to find employment in their vocations elsewhere. “(20) That, in addition to the foregoing, there is used in mining and smelting operations of the defendants 'large quantities of material, such as coal, coke, and lumber, which are supplied from other points than Butte or Anaconda, within the state of Montana, and the supplying of which furnishes employment to a large percentage of the population of the state of Montana, residing in such communities. That the average daily number of men employed directly by the mines shipping their ores to the said reduction works, during the year. 1906, was 4.548 men; and the average number of men employed in the reduction works at Anaconda during the same time was 2,500 to 2,000. That, in addition to the foregoing, the railroads operating within the state of Montana derive a large proportion of their entire earnings from the freight handled directly in connection with the operations of the defendant companies, and indirectly in handling the freight shipped into and from the cities of Butte and Anaconda. That during the six months of the year 1906 ending June 30, 1906, the amount of money paid in wages to the men employed directly by the defendant companies and the companies shipping ores for treatment to said reduction works was the sum of $5,045,5S2.57, or at the rate of about $10,000,000 per annum. That the railroad freights paid during the six months of the year 1906 ending June 30th was the sum of $1,415,890.35, or in an amount equal to approximately $2,800,000 per year, exclusive of all freight paid upon the product of said reduction works. That the amount paid by said companies in carrying on said operations for material, such as coal, coke, and lumber, largely furnished from different points within the state of Montana, and elsewhere, amounts yearly to the sum of $4,000,000. That, in addition to the investment of the defendant companies at Anaconda, the defendant companies have invested in necessary development and equipment of their mining properties in Butte the sum of approximately $50,000,000, which would be entirely lost and destroyed in the event of a cessation of the smelting operations at Anaconda, as would also the values of the ores in reserve which have not as yet been mined, and which amount to an unestimated figure of many millions of dollars. “(27) The said reduction works since the beginning of operations thereat in the year 1902 alone has expended in labor the sum of $7,007,304.00; for coal, the sum of $4,293,455.87; for coke, $4,012,086.S2; for lime rock, $740.047.37; for machinery, $1,316,029.S3; for lumber, $53,S96.37. That from the time the said smelter began operations up to and including operations for the first six months of 1906 said reduction works has extracted from the ores treated there 500,947,365 pounds of copper, 25,898,554 ounces of silver, and 164,806 ounces of gold. That the copper produced at- said smelter is used principally in the manufacture of electrical appliances and machinery and in the manufacture of brass, bronze, and other metals; and the said supply from said smelter has constituted during the various years which said smelter has been operated from 8.2 to 11.5 per cent, of the entire world’s supply of copper, and from 17 per cent, to more than 20 per cent, of the entire supply of copper of the United States. That at the present time the demand for copper for use in manufacturing, industrial, and commercial pursuits is extremely great, and there are not now any known sources of copper in the world from which the deficit which would be caused by a suspension of the smelting plant at Anaconda could be supplied, as a result of which widespread distress and inconvenience would follow tlie cutting off of the supply of copper from such works, in addition to the general injury and damage which would be done the state of Montana in particular. “(28) .That the city of Anaconda is the county seat of the county of Deer Dodge, and the total assessed value of the real and personal property of the said county of Deer Dodge in the year 1904 was $8,120,820. That of such amount the sum of $1,058,573 was assessed against the property of the Washoe Copper Company and the Anaconda Copper Alining Company, defendants. within said county. That during the years from 1902 to 1900 the defendants in this action hare paid upon tlieir property in Deer Dodge county from 51.0 per cent, to 57.4 per cent, during each year of the total amount collected in taxes by said county of Deer Dodge in the respective years. That an injunction against the operation of the said smelting works as prayed for in the complaint herein would render’ all of said property so assessed, .of the Anaconda Copper Mining Company and Washoe Copper Company, practically valueless, and would cause such a depreciation in other property now subject to assessment, with a corresponding reduction in the revenues of said county, that it would he Impracticable and impossible to continue tbe county organization and county government of tbe county of Deer Lodge with such sums as might lie raised by assessments upon property therein, and would result in an abandonment and disorganization of the county government. That the city of Butte is the county seat of the county of Silver Bow. That, of the total taxes collected by the county of Silver Bow for the year 1906, about 30 per cent, thereof was collected from the assessments levied upon the mines and net proceeds of mines, the ores of which are treated at the said Washoe Smeller, and which would be closed down by the closing of said smelter, and that the closing of said smelter would render practically all of said property valueless, and would cause such a depreciation of other properly in Silver Bow county now subject to assessment that it might be impracticable and impossible to continue the county organization of the county of Silver Bow with such revenues as said county would he able to obtain, and might cause the disorganization and abandonment of said county government. That the county of Deer Dodge, since 1902, has paid about, 6 per cent, of the total taxes collected by the state of Montana for state purposes, and the county of Silver Bow, during said period, about 25 per cent, of the total taxes collected by the state of Montana for state purposes, and that, if the injunction were granted as prayed for1 in the complaint herein, there would be such a depreciation in the amount of assessable property in said counties subject to assessment for state purposes as to materially impair the revenues of the state of Montana. “(29) The closing down of the said smelting works at Anaconda would, by the destruction of its principal market, the city of Anaconda, work destruction and irreparable injury to the complainant, and to others owning property within the said Deer Dodge Valley and vicinity, which injury would result directly in the loss of the market, for such products of such lands, and that 1he said lands would be very seriously depreciated in value by such closing, and that the damages which would tie so sustained by the complainant and the other owners of such land would, with respect to the closing, be greatly in excess of the damage they would sustain by reason of the continuance of the said smelter as the same is now operated, and 1hat the closing down of Die Butte mines, which would ho closed by the cessation of operations in said Washoe Smelter, would cause an irreparable injury to the farms of the Deer Dodge Valley by loss of their only remaining-near market, and cause a consequent further reduction in the value of said lands. “(30) That ii was stipulated by the parties complainant and defendants, during the presentation of defendants’ evidence, and it is therefore found as a.fact, that the defendants in this cause are each of them solvent and able to pay and respond for all damages which have been or may he sustained to property from the operation of the said Washoe Smelter. “(31) That the value of the matter in dispute in this suit exceeds the sum of $2,000 exclusive of interest and costs.” Most of tiie findings of the master were approved by the court; they being departed from only to some extent in a few instances, as will be seen from the following excerpt from the opinion of the trial judge; “The most important of the master’s findings are: That the sulphur in the smoke from the smelter stack has caused no damage or injury to the crops on complainant’s land since the remodeling of the Washoe Smelter in 1003; but that arsenic was deposited at times upon complainant’s farm in a way to injure the fodders grown thereon; that live stock was poisoned from the effects thereof, and that a portion of- the Deer Lodge Valley was less valuable for stock raising and grazing purposes than it otherwise would be, by reason of the operation of the smelter; that the complainant, Bliss, has suffered special damage in the sum of $300, in the depreciation of the rental value of his land; that the farmers in the Deer Lodge Valley constitute a neighborhood: that arsenical fumes emitted by the smelter more or less injuriously affect all hay, grass, and fodder in the neighborhood; that, if the smelter continues as now operated, the future crops will be more or less poisoned, and the live stock will be sickened; but that, if the smelter should close, the effect of the poisonous matter would cease; that there has been no injury to the soil of any permanent character; that in 1901 complainant’s land was worth not to exceed $8,000, and at the time of the suit it was worth not to exceed $4,000, because of the improper farming done, and because of the injury from the arsenical emanations from the smelter. He finds that iu 1904 the farmers of Deer Lodge Valley formed themselves into an association to procure evidence and prosecute claims and suits against the defendants on account of the maintenance and operation of the smelter; that this suit was brought mainly for the benefit of the Farmers’ Association; that Bliss himself was not a member thereof; and that the control of this action has been exercised by Smith, president of the Farmers’ Association, in the interest of the association. The findings set forth that the present processes used at the Washoe Smelter are the only practical ones that can be followed in the reduction of the ores treated; that there is no site in Montana that could be selected where operations could be carried on with less damage and inconvenience; that the mines in Butte have their ores smelted principally at the Washoe Smelter; that, if the smelter were to close, two-thirds of the mining operations in Butte would stop; that irreparable injury would be done to the complainant and others owning land in Deer Lodge Valley, because of the loss of markets for the products of their lands; that the value of their lands would be depreciated; and that the damage which would accrue to them would be greatly in excess of the damage they would sustain by reason of the continuance of the smelter as it is now operated. “Thereafter counsel for complainant and for defendants, respectively, filed exceptions and objections to the findings and report of the master. The exceptions amounted, in substance, to this: That some of the findings of fact were against the weight of evidence; that some were not supported by the evidence; that the findings were defective in not covering certain issues; and that some were upon immaterial and irrelevant issues. “The case, having been referred to the master without the consent of the parties, is conceded to be one where the findings reported are merely advisory, and where the court may adopt the information communicated by the master’s findings upon the evidence and may accept the same or disregard it, in whole or in part, according to its judgment, as to the weight of evidence. Such is the rule as declared by the Supreme Court in Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764, and as recognized by this court when it denied thiis complainant’s motion for an order to require the master to file his findings of fact without setting a time to receive exceptions to his report. Bliss v. Anaconda Copper Mining Co. et al. (C. C.) 150 Fed. 309. “Having accepted the view, therefore, that the case is for final decision upon the pleadings and proofs, counsel for the respective parties in their elaborate and able arguments have addressed themselves to the whole record, referring, however, to many of the findings of the master as correct and acceptable to both sides, yet alluding to others as foundation aids only upon the issues involved, not casting the burden upon either of the parties in their exceptions, and not, like the findings of an independent tribunal, to be taken as presumptively correct, only to be disturbed where clearly in conflict with the-weight of the evidence upon which they were made. “These considerations are the law applicable to the method of approaching the investigation of the record. The learned master himself took this view of the effect of the reference; and it is just to him to say that his work has been of such a helpful character that counsel, throughout their arguments, have recognized the vast amount of painstaking study which he has evidently given to the testimony, and have accorded to his findings the most respectful attention. “Two hundred and thirty-seven witnesses testified. The evidence covered a very wide scope, reaching out, not only to the substantive question whether the single complainant, Bliss, has suffered special injury because of the smelter fumes blowing over his land, but whether, as a truth, because of the fumes blowing over the farms of others, injury has been • done, and the Washoe Smelter is a public nuisance, as defined by the law. “Farmers and stock raisers from within the neighborhood of the Deer Lodge Valley gave evidence as to what they observed or knew, and scientists of the widest experience advanced their views in the general and technical diseases of live stock, and in agriculture, chemistry in its various technical branches, toxicology, pathology, pathological histology, anatomy, botany, bacteriology, zoology, mineralogy, metallurgy, and in forestry. “Exhaustive examinations of each technical expert followed careful special study and preparation in the particular subject testified to. and nearly every assertion claimed to rest upon scientific learning and research was challenged by cross-examination and disputed by experts produced upon the opposite side. Under the circumstances, we can well understand that jealous regard which many of them observed for nicety of distinction, and why, too, a number of them were exceedingly cautious in declining to give opinions which called for expert, knowledge one whit outside the technique of their respective specialties. Among the expert witnesses who testified may be mentioned: Prof. Joseph Blankenship, of the Agricultural College of Montana; Prof. Charles A. Doremus. of New York; Prof. M. J. Elrod, of the University of Montana; Dr. Robert .7. Formad, of the United States Bureau of Animal Industry; Prof. W. D. Harkins, of the University of Montana; Dr. M. E. Knowles, State Veterinarian of Montana; Dr. Duncan McNab MeEachran, of the Canadian government veterinarian service: Dr. V. A. Moore, of Cornell University: Dr. .Leonard Pearson, of the University of Pennsylvania and State Veterinarian of Pennsylvania ; Dr. 1). E. Salmon, formerly head of United States Bureau of Animal’Industry; Dr. Harry Snyder, of the University of Minnesota ; Dr. Ralph E. Smith, of the University of California ; Dr. Theobald Smith, of Harvard University; Dr. R. E. Swain, of LelnncL Stanford, Jr.. University; and Prof. F. W. Traphagen, of the Colorado School of Mines. “Exhibits, more than 800 in number, accompany the record. There are numerous specimens of bones, animal tissue, consisting, in part, of stomachs, noses, sections of arteries, livers, kidneys, etc.; flue dust; or normal and abnormal plant life of the Deer Lodge Valley; and of portions of trees and shrubs; while hundreds of photographs were used to illustrate varieties of conditions relevant to the issues. “To enter upon a detailed statement of the testimony, which alone covers over 25,000 pages, would be to extend this opinion far beyond what is necessary. It would require copious extracts from the direct and cross examinations, of many witnesses. Conflicts of reason would have to be set forth, apparent and real inconsistencies would have to be pointed out at length, and the train of reasoning which formed the bases for the seriously conflicting conclusions, and sometimes irreconcilable difference of opinion among scientific witnesses, could only be well and fairly set forth by lengthy and exact quotations from the elaborate, technical explanations. Therefore, to reduce the facts directly to as brief a statement as the record reasonably justifies, r have thought it proper to adopt the substance of those findings of the master which have not been excepted to, and in a narrative way of my own simply to state the case and to comment thereon as the weight of evidence warrants. “The Deer Lodge Valley in Montana, where complainant’s lands are situated, lies north and west from Butte, and northerly and easterly from Anaconda. The valley Is high (over 5,000 feet in altitude), between two ranges of the Rocky Mountains. It is generally regarded as extending from the Northern Pacific Railroad, near Garrison, southerly toward Butte for a distance of about 40 miles. Its average width is about 10 miles. The mountains about the valley have been extensively exploited by prospectors and miners. Settlements were made as far back as 1864, and during the years thereafter ranches were taken up by stockmen and farmers, so that now the valley is quite well settled; many farmers owning lands and homes therein. In the earlier days stock raising was the principal occupation of the ranchmen, but from 1880 on, as settlement increased, the ranges became poorer, fences became more common, larger herds of range stock were driven out to more open ranges, and, in a great measure, since about 1881, diversified farming has ■ superseded stock raising. The valley is quite well watered, and is generally adapted to dairying and stock farming, and to the growing of hay, grain, alfalfa, and such garden produce as grows in the mountain valleys of this latitude. The city of Anaconda is in the southwesterly part of the val: ley upon Warm Springs creek, a mountain stream, that flows into the Deer Lodge river. The Washoe Smelter,, which is said to be the cause of injury to complainant and others, stands on a slope of the mountains west of the valley, a mile and a half southeast of the city of Anaconda. “In 1888 and 1884, a corporation styled the Anaconda Mining Company, not a defendant, operated a smelter near to the site of the Washoe Smelter. The Anaconda Mining Company owned valuable properties in the vicinity of Butte, about 80 miles distant frojn Anaconda, and was working and developing mining claims, which produced large quantities of low-grade ores, only capable of successful treatment by reduction works. These ores were in large part of such a character that in order to reduce' the same, and extract the metal contents thereof, it was necessary to concentrate the same by the use of large quantities of water. It being deemed necessary for the Anaconda Mining Company to construct reduction works, extensive investigations were made by its agents for the purpose of fixing points where sufficient water could be obtained, and other natural facilities afforded for the operation of such proposed works, and a place near where the city of Anaconda now stands was chosen as the best site. ■ “The Anaconda Mining Company, without objection on the part of any one, proceeded to construct its smelting works, and expended in connection therewith several millions of dollars. In 1S84," when the works were completed, the company began to treat, and did treat, down to the year 1895, thousands of tons of ore per day. The works of the said company were located upon .the north bank of Warm Springs creek, at a point one mile in a northerly direction from the present Washoe Smelter, and are spoken of throughout the testimony of the witnesses as the ‘Old Works,’ in contradistinction to the Washoe Smelter. Between 1884 and 1895, the Anaconda Mining Company operated the works, but in 1895 transfer of the property was made by the Anaconda Mining Company to the Anaconda Copper Mining Company, a defendant herein. ' “Thereafter it was determined by the defendants to construct a new smelting plant upon more modern and economical lines than the old works had been constructed upon, for the purpose of reducing the ores mined by the defendant companies and other mining companies at Butte. Investigation was had, and the present site of the Washoe Smelter was chosen as being the most available and suitable within Montana, and the Washoe Smelter was constructed by the Washoe Copper Company, defendant, for the purpose of taking the place of the old works, heretofore referred to. The Anaconda Copper Mining Company transferred its smelting operations to the Washoe Smelter, and thereafter demolished the old works, and at the time of the hearing of the testimony in this suit had no other available means of smelting or reducing the ores then being treated and smelted by it than the Washoe Smelter. Several years were consumed in erecting the Washoe Smelter, and about $9,500,000 expended in its construction. The ores treated and smelted at Anaconda since 1884 are sulphide copper ores, containing large quantities of sulphur and arsenic, quantities of which substances, in various forms during the processes of smelting, have been and are being released and discharged into the atmosphere, and disseminated by the changing air currents over various and indeterminate areas of territory. About 7,000 tons of such ores are being treated each day at the Washoe Smelter. “Between February and September, 1003. the defendants remodeled the Washoe Smelting Plant. Before the remodeling, the sulphur and arsenic fumes had been carried out into the atmosphere by means of four chimneys, each of which was about 225 feet in height, and constructed on a level approximately with the smelting plant; but, in the remodeled construction, defendants built a large brick stack, and connected the same by means of flues with the smelting plant. Prior to 1902 there never was any complaint by farmers or property owners that there was any damage being done by the smelter fumes. “Between February, 3902, and February, 3903, when the construction of the new flues and stack was commenced, many of the farmers of the Deer I.®dge Valley complained that such quantities of sulphur and arsenic were discharged into the air through the several smokestacks, with which the smelting plant was then being operated, that the crops and live stock in the valley were being poisoned and injuriously affected, to the great damage of the owners. Claims for damages on account of such poisoning, aggregating several hundreds of thousands of dollars, were presented by the farmers to the defendant Anaconda Copper Mining Company. The company’s representatives investigated the matter, and reported that damage was being done to the farmers, whereupon the defendant Anaconda Copper Mining Company made settlements and paid out to different persons sums amounting in all to more than 8330.000. The company, intending, as far as possible, to prevent any further damage, and any further claims for damage, had investigations made to determine methods and means by which the noxious substances emanating from the ores in smelting could be caught and retained from the gases and smoke, and that the remainder might be so scattered and disseminated as to cause no damage, if possible. As a result of such investigations, it was determined that the best way to accomplish the purpose was to construct large flues with dust chambers to collect the solid particles, so far as possible, from the smoko, and to erect a high stack upon an elevation at some distance from the smelting plant, in order that the fumes escaping into the atmosphere might be discharged at as high an elevation as possible, and thus became widely disseminated and diluted before coming in contad, with any of the soil in the valley. “Tn order to carry out the results readied through the investigations, the use of the old smokestacks at the smelting plant was discontinued, and the defendant companies began to build a large stack, and to construct enormous flues to connect the stack with the various portions of Hie smelting plant wherein gases and other emanations were created in the operation of reducing the ores treated. In the execution of the plans, an elevated point was chosen as the site for the chimney, and a new chimney was put up, 300 feet above base, and at an elevation of about 1,100 feet above the Deer Lodge Valley proper. The diameter of the chimney at its base is 31 feet and. 6 inches, and its diameter at the top 30 feet inside. The chimney is connected with the smelting plant proper by a double system of flues running from the base toward the smelting plant for a distance of about 3,000 feet. Those double flues are connected with the chimney at opposite sides, at the base of the stack, and are constructed partly by excavating outs in the hill, lining the same with brick, and by arched overhead construction, and are 60 feet in width and about 35 feet in height. At the end of the 1,000 feet of construction of double flues, and connected therewith, is a single flue, which is 60 feet in width and 35 feet in height The single flue is about 1,300 feet long, and at the end farthest from the stack is connected with separate flues and dust chambers, running to what are known as the reverberatory, the roaster building, the blast furnaces, and tbe converter plant, respectively; these being the several plants in which all the gases and emanations from the smelting operations arc produced. Under the main flue and the double flues, tunnels have been excavated, through which cars run, and the flue dust catching capacity of these large flues remains practically unimpaired. “The respective plants in which the gases and fumes are generated are connected with, this large flue by dust chambers and separate flues, which are of the following dimensions: A blast furnace chamber 250 feet long by 40 feet in height, by 40 feet in width; a roaster dust chamber 200 feet long, 40 feet in height, by 40 feet in width; a converter dust chamber 200 feet long by 40 feet in height and 40 feet in width; a reverberatory dust chamber of the same dimensions as the blast furnace flue. All of the smoke and gases and other emanations from the smelting plant pass through these various dust chambers and flues up to the main stack, and go to the top of the stack, and thence into the atmosphere. “There is a dust catcher at the rear of the blast furnace building, the Mc-Dougall building, and the converter building, its purpose being to remove the dust from the' smoke, the dust being removed for its valuable metal contents, and to prevent its going out to do damage to land. “The company also constructed an arsenic plant adjacent to the large flue, containing three furnaces, with a capacity of about 10 tons each, for treating arsenic, for the purpose of separating the arsenic which collects and settles in the main part of the flue from a portion of the flue dust before the flue dust is returned for treatment to the smelting plant. “Arsenic is a by-product of the ores treated for commercial purposes. The portion of the dust which is high, about 90 per cent, in arsenic, goes to the arsenic plant, and as much as 2 tons a day is collected and sold for commercial purposes. The portion of the dust not treated for arsenic, approximately 160 tons daily, goes directly back to the reverberatory smelting furnaces in the form of flue dust and is treated for the extraction of copper, silver, and gold. Some of the arsenic found in the ores treated in the blast furnaces and roasters goes out in slág, and part in volatile substances that is left in the smoke goes up the chimney and out into the air. “The only possible conclusion from the evidence is that, as a result of these briefly described improvements, the defendants built their plant in accordance with the best-known methods and processes -for accomplishing the purposes intended, and that the endeavor of the defendants has been, through these methods, to render the smoke, fumes, and emanations from the smelter harmless. Furthermore, as the case is submitted, the evidence discloses that the steps taken by the defendants are far greater and more extensive in character than those taken by any other copper smelter, and that the effect of the remodeling at the plant and the use of the flues, dust chambers, and stack described has been to prevent and to discontinue, proportionally to the ore treated, the discharge into the atmosphere of much of the dust containing the noxious substances complained of, which, before the improvements, had been discharged into the air from the smokestacks of the plant; and that a resulting effect has been that the fumes and whatever dust the same contains, which was not removed therefrom, have been disseminated and scattered by air currents at a great height over a large area of country, thus rendering less harmful in proportion to the ores treated the smoke, fumes, and emanations from the plant than was the case before the improvements were made. “Profs. Swain and Harkins, expert chemists, made some experiments by Pitot tubes, introduced for 10 hours into the big stack 50 feet above the base, to ascertain the volume of smoke thrown out from the stack every 24 hours, and the milligrams of arsenious oxide contained in one cubic foot of the smoke. But Prof. Swain stated, in substance, that it was impossible to carry out the experiments as attempted by him, without introducing some errors, and that' the slightest mistake in the chemical analyses in trying to arrive at the amount of arsenic would be multiplied by millions and millions. So much depended, too, in the experiments, not only upon accuracy in obtaining velocity and the ratio of volume of the sample taken to the total volume going out of the stack, but also upon the character of ore treated and upon the temperature and other conditions at the very time of the experiments, that the court is not warranted in saying what was the exact volume of gas, and what its correct analysis is; and, as the case develops, it does not become of great importance. “At this point we may well turn to the evidence concerning complainant’s relation to the case. He owns 320 acres of land about five miles easterly from the Washoe Smelter. Before he acquired his farm it had been occupied and cultivated by bis predecessors in interest since about the year 1866 or 18G7. The lands of complainant’s farm are not; of the best class of lands in the Deer Bodge Valley. They are known as cold lands; are in part low, and moist and partly contain alkali; are best fitted for raising wild and redtop bays, for stock grazing and for dairy purposes; and are not very well adapted for crops of timothy or other cultivated hay or grain. Moreover, the complainant has not taken good care of Ms premises, but has permitted them to run down, and has allowed a part of the land to remain without seeding, so that foxtail and other weeds have been allowed to grow, to ihe substantial depreciation of the value of the land. “Mr. Bliss acquired his farm in this way: About March, 1903, while he was in business in Butte, his health was not good, and he desired to leave 1he state of Montana. In making business arrangements looking to that end. he accepted title to the farm in Deer Dodge county, in lieu of the sum of $8,000 to be applied upon the general transfer of his property. When he bought the farm, a contract of sale had been made between his predecessor in interest and the complainant, a man named Daniel James and one John Smith, who was at that time in possession of the farm, and who had used it for pasture purposes, under and by virtue of which said contract the said Smith was to purchase the ranch at a stipulated sum. The complainant, Bliss, entered into an agreement with Smith, by which the terms and conditions of the contract of sale were changed, so that Smith, instead of becoming a purchaser from James, was to become a purchaser from complainant, upon payment to the complainant of $5,000, and assuming the burden of a certain mortgage which bad theretofore been given by the predecessor in interest of the complainant, secured by the said premises, in the sum of $3,000. It was in this way that the valuation of $8,000 was put upon complainant’s farm. The valuation, however, was a fair one in 1903, though since then ihe value has fallen to about $4.280. The investment in the farm was made by complainant under the belief that he would be able to sell it in accordance with the provisions of the contract of sale which had been entered into with respect to the property, it was not Mr. Bliss’ intention to live upon the place. lie never has lived upon it, and never has attempted to improve or cultivate or farm ii, or to raise any live stock upon it. Moreover, he knew when he bought that the farmers in the Deer Dodge Valley, including the occupant in possession of the farm, had made complaint against the defendant companies, on account of the Washoe Smelting and Reduction Works. “Reverting to the value of the Bliss land: Inasmuch as complainant, in 1904, rented the ranch to K. D. Smith for $750. and the making of some improvements worth about $200, the rental value of that year was practically 12 per cent, of the then value of the land. Estimating 12 per cent, of the value as a fair rental, if it had not been damaged through any cause, complainant ought to have received $950 rental in 1905; whereas, the best offer ho had in that year was $500 a year for a two or three year lease. This offer represented 12 per cent, of approximately $4,200, which sum is therefore a just estimate of the value of the place in 1905 and 1900 and 1907. From these figures it is shown that the depreciation in value of the land was 88,800, and in rental value $450 per annum, or a total of $900 for 1905 and 3900. “It is very hard to reach a satisfactory conclusion as to the principal special causes for the depreciation in value of complainant’s land. Farmers who have known the land for 80 years differ radically; some ascribing the deterioration to poison of fodders by smelter fumes, and consequent danger to live stock and to crops, while others say that the value is reduced because in 1902, 1908, and 190-1 the natural hay meadow was plowed and never seeded thereafter; that the land has been neglected, has much alkali, is injured by sunflowers, foxtail, and other weeds; and that there lias been no injury at all to the pasture or to animal life thereon by Ihe smelter smoke. The experts also disagree in most positive terms as to the condition of the fodder and the soil. But, after considering the evidence concerning some of the live stock that fed upon the pastures of the ranches in the immediate vicinity of the Bliss place, together with that hearing upon the condition of some of the animals that were upon the pasture in the Bliss ranch itself, my opinion concurs with the master’s in finding that both of the causes ascribed — lack of proper farming and smelter fumes — existed and contributed more or less to the lessened value. “The fact is deducible, though, that the lesser injury was done by the smelter, and for these reasons: , As heretofore stated, when Mr. Bliss bought his land, its principal value was for dairying purposes. It is entirely certain, too, that thereafter, iri 1905, while he owned the place, the offer to rent that he received was made by a man who wanted it for a dairy. Now if it were true that the cattle and horses of the dairymen who might rent would be exposed to poison in eating the grass in the pastures, and to the consequent sickness, falling off of milk production, loss of calves, and other effects of ingesting grass or hay that has been poisoned with arsenic, we naturally inquire why it was that Boone, who knew all the conditions that existed about the place in 1904, and whose good faith in offering to rent from Mr. Bliss was beyond question, wanted to rent the farm for dairying purposes and was willing to pay $500 a year rental for several years. The answer would seem to be a simple one, in the light of ordinary human experience. Common knowledge tells us that the last place a dairyman would seek would be a farm where cattle would be exposed daily to the peril of poison from arsenic in the pasture where they would feed; while, on the other hand, there would be nothing unusual in his taking a farm adapted for pasture and dairy purposes if the only objection was that it had been badly cultivated, or was unsuited for general agriculture. Thus we are irresistibly forced to the conviction that as a fact, viewed from the standpoint of an experienced dairyman, the injury to Mr. Bliss’ pasture from arsenic was not of the most serious character; and hence it follows that the larger depreciation must be attributed to some cause other than injury from poisoned fodders. “And in suppbrt of this there is further evidence of telling force: A dairyman named Sweeney, of years of experience in Minnesota and Montana, who also knew the Bliss ranch well, rented part of it. in 1905, from Mr. K. D. Smith, president of the Farmers’ Association, and agent of Mr. Bliss. The dairyman testified that he had CS head of cattle on the Bliss ranch; that they did well; that every milk cow had a calf; that the calves were the ‘finest’ he had had since he had lived in the valley; that his 60 milk cows gave a general average of 2% gallons of milk a day, per cow; that the cattle ran in the pasture; that he had lived near the Bliss place since 1903, when the new stack was operated, and had not been injured in any way by smoke; and that he had made'money in his business until -March, 1906, when he had sold his cattle at $40 a head to another dairyman named Verlaine, who lived upon an adjoining ranch. “But, furthermore, Wolfe, a dairyman who was called by the complainant, and who had rented the northern part of the Bliss ranch from Smith, agent, in 1906, admitted that his 24 cows on the Bliss place gave an average-quantity of 2% gallons of milk a day for each cow. He said that he took, them up to the stables in the fall, and that he fed them meal and some alfalfa which was raised upon a ranch only a mile away from the Bliss ranch, and that he had lost one calf, which was sick when he went to the place, and one after he went there, and that two of his cows aborted after he went there. It is in evidence that the calf that died after he was on the place had white scours caused by feeding upon sour milk. Still further: Another dairyman named Blaine, who, like the others, concerning whom mention has been made, was familiar with the conditions and locality, and he went to the Bliss ranch in June, 1906; that Wolfe’s cattle looked well; - that Wolfe wanted $60 a head for them; that, he (Blaine) agreed to buy the cattle from Wolfe at $55 per head, and tried to rent the Bliss place .for dairying; but that Mr. Smith, president of the Farmers’ Association, ordered-him off-the ranch and prevented the consummation of his plans. “In • the light of this evidence, how can the court find that there was very serious injury done to the fodders on the place by arsenic? Much less, too, can a conclusion be reached apportioning the damages. “No summarv of the facts would be complete without reference to the attitude of many of the farmers of Deer Lodge county. Some time during the latter part of .1904, about 100 (approximately one-lialf) of the farmers and residents of that part of the Deer Lodge Talley, called by complainant the ‘Smoke Zone,’ adjaqent to tile city of Anaconda, representing an ownership of over 50,000 acres of land, formed an association for the purpose of procuring evidence and prosecuting claims and suits against the defendants in this action, on account of the maintenance and operation of the Washoe Smelter. Mr. IC D. Smith, who owned the ranch adjoining complainant's place, was elected president, and ever since 1904 has acted as the head of said association. Bliss, this complainant, is not and never has been a member of the said Farmers’ Association, and appears to be the only nonresident owning farming lands in the so-called ‘Smoke Zone.’ Although he is the sole complainant herein, the snit has been prosecuted mainly for the benefit of the members of the Farmers’ Association. It appears that, before the present suit was instituted, the farmers, seeking settlement for damage claims, wrote to the representatives ol' the defendant Anaconda Copper Mining Company. The company, through its agent, replied, asking the Farmers’ Association to specify by bill of particulars the damages claimed by each and every farmer who felt that his property had been injured by the smelter fumes. To this letter the Farmers’ Association replied at length, demanding cash purchase of their lands before May 1, 1905, in the following language (italics mine): “ ‘Anaconda, Montana, March 4, 1905. “ ‘Anaconda Copper Mining Company, Anaconda, Montana — Gentlemen: The Deer Lodge Valley Farmers’ Association, consisting of 107 members, representing over ninety per cent, of the lands and property of the Deer Lodge Valley, comprising practically all of Deer Lodge county and the southerly portion of Powell county, did on February 21, 1905, call a meeting of said association to be held at the Willow Glen schoolhouse in Deer Lodge county, at which nearly all the members of the said association were present. The undersigned committee, consisting of nine members, were duly elected by said meeting for the purpose of receiving all claims for damages resulting from the operation of your smelting plant, known as the Washoe Smelter. “ ‘At said meeting it was understood by all the members of said association that they would present their claims for the lowest cash settlement tohieh they uxiuld be willing to consider by way of compromise for all of said damages a/nd that said committee should be empowered to exclude any unjust claim or claims for damages, as well as reduce the amount of any claims which would be considered too high after an investigation by said committee. * * * “ ‘The claims which the committee approved are presented for settlement after a very careful investigation, and, as the committee was selected from all portions of the valley, the committee were in a position to pass on most of these claims from personal knowledge of the property of the claimants. In fixing the damage, if any part or portion appeared unjust or was in doubt,, the committee eliminated that part or portion of such claim. It would therefore follow that the committee would not care to consider any counter proposition from your company on approved claims. “ ‘As to the claims which are presented without recommendation, if your company does not see its way clear to adjust them on the .basis on which they are presented, you are at liberty to enter into personal negotiations with these claimants. These personal negotiations, however, and the delay arising therefrom, shall not in any maimer interfere with the association from filing suits in equity and bringing actions at law for damages, it being the sense of the association, as expressed through the committee, that unless an early settlement can be reached, that suits in equity will be filed and actions at law commenced, which would not prevent a settlement unless the-company should consider such action on the part of the farmers to be a withdrawal of the offer of compromise. No suits of any character will be filed before the 7th day of April, 1905, but from that date it will be optional with the members of the association to institute legal proceedings unless the company has signified, through Us proper officers, acceptance of the settlements proposed. “ ‘Claims have been presented for damages aggregating $2,300,000.00 as the damages actually sustained by members of this association. These claims have been reduced to about $1,750,000.00 and for this amount the commit lea has instructed suit to be brought in the individual names of‘the parties, ■unless a settlement is reached. “ ‘The cause of this reduction has been owing to the fact that the company settled with most of the farmers two years ago for personal damages: that claims for damages to crops and personal property have been eliminated except for the past two years, excepting in three instances, which are N. J. Bielenberg, Quinlan Bros., and August De Hosier. These claims have been included for a greater period than two years for the reason that no settlement was reached between these parties and the companies two years ago. The farmers, however, contend, after having been advised by counsel, that five years is the statutory period in which actions for damages of this character can be maintained. Whether or not the company will accept this contention will be immaterial, for the reason that all claims except the three mentioned have been restricted to the two year period. “ ‘All unjust, inequitable and slight claims for damages have been rejected. This also accounts for the difference between $2,300,000.00 and $1,750,000.00. “ ‘When the farmers were called upon to place the lowest cash valuation of the damages idUch they had sustained, they presented to your committee damages aggregating $1,536,876.00. Your committee after careful and thorough investigation reduced these claims to $1,120,731.00 approved claims, a/nd $127,979.50 claims to be submitted without recommendation. It is understood and agreed that if the company malces settlement of these claims as presented, this includes title to all of this property, including land, waiter rights and improvements, and that the farmers will surrender possession of these properties not later than November 1, 1905, provided settlements are made and money paid on or before May 1. 1905. “ ‘The real property damage included in this settlement consists of 60,525 acres of patented lands, together with all water rights and improvements, all being under fence, and generally all improved farms, for which is demanded the sum of $918,147.00, which insures the company title to all of these lands, water rights and improvements for the sum of 17 cents per acre. The committee also suggests that if a settlement can be reached, that the company shall be allowed in every instance to withhold whatever amount of money may' be necessary to perfect title or remove liens or incumbrances. That in a few instances, some of the farmers have indicated that if the company would deed bade the land and improvements, they would be willing to allow a certain stated amount by way of reduction in the amount presented, if allowed to Joeep the property. “ ‘Almost all of the claims for personal property damaged were rejected, as nearly all the stock were settled for two years ago, and the committee refused to allow any damages except on new stock which has been brought into the Deer Lodge Yalley since the settlement. In place of any new stock having been brought in, nearly all of the stock has been, removed from the valley, owing to the general sickness and death of the stock. “ ‘The committee also desires that no settlement be made, with the individual members of the association, and that m the event of a settlement that the same be made through the Daly Bank & Trust Company, of Anaconda, Montana, through the committee of farmers, as certain advances, attorney fees and expenses had been incurred which it would be impracticable to collect if individual settlements were made in the absence of any member or members of the committee. * * * “‘The farmers are anxious to have an early disposition of the matter on the part of the company, as they will attempt to protect the coming crop provided settlements cannot be made. “ ‘The committee by way of explanation, desires to call the attention of the company to the fact that the farmers have not presented their claims for damages since the settlement two years ago up to the present time, ijpr the reason that when said settlement was made, the company promised and tlie fanners believed that the construction of a large stack would prevent further injury and the farmers decided to wait until they became fully satisfied as to what would be the result of the operation of the smelter after the construction of a large stack. It has now become apparent to the farmers of Peer Lodge Valley that stock raising and farming cannot exist there so long as the smelter is being operated on its present large extensive scale, and treating the class and character of ores which are produced h.v the mines of Butte. The farmers also feel that, having settled in the valley Iong'i>rior to the smelting plant, they have prior rights which the smelting interests are bound to respect, and which should be taken into careful consideration l>y your company in attempting to reach an amicable settlement. “ ‘The members of the association and the committee have kept constantly in view the fact that the company, in operating its smelter, has at all times used the latest and most improved methods for smelting, and that the damages which have arisen have been 1he natural and usual result of the smelting operations. That the company two years ago made prompt settlement of the damages which had been occasioned by the operation of tlie smelter; that the company immediately thereafter spent a large sum of money in good l'aith in attempting to avoid further damages to the farmers of Deer Lodge Valley. The farmers have at all times been anxious to remain on good terms witli the smelting interests, fully realizing the importance of the mining industry to the state of Montana, and that mining cannot be conducted without smelting and the conducting of smelting plants, and that there is not a single farmer who is a member of this association who is desirous of in any manner interfering with the operations by the company of its mining” properties or its smelting plant, until it becomes apparent that the company intends to continue its smelting operations without regard to tlie total destruction of tlie stock raising and farming interests of tlie Deer Lodge Valley. “‘Acting in view of these important considerations, the committee has felt that tile farmers should stand at least one-third of the entire loss accruing to them by reason of the operation of your smelting plant, in order that an amicable settlement between the farming interests and the smelting interests may lie reached. It has therefore been the effort of the committee in adjusting these claims to xiresent them at approximately two-thirds of the damages sustained, and not to approve a claim where (he individuals would not; submit to the one-third reduction.’ “This letter was signed by nine persons, as members of a committee of the Fanners’ Association. “The defendants appear to have made no reply at all to this demand, and this suit was instituted on May 4, 1905. It does not appear that any action at law has ever been filed by complainant, or that any judgments for damages have been obtained by any members of the Fanners’ Association, though two or three suits are pending for damages claimed to have been done before the new stack was lmilt. It is a circumstance that, although no member of the Farmers’ Association is a party to this suit, yet tlie association has been directly responsible for the presentation of the evidence, and, through assessments levied upon its different members lias raised funds through a committee. Bliss, the complainant, prior to bringing this suit, put his farm in the hands of Mr. Smith, president of the Farmers’ Association, for rental purposes, appears to have paid little attention to tlie matter, and lias not contributed any portion of the expenses of conducting the same, except the rent of his ranch which was turned over to his counsel. He has really given control to the Farmers’ Association, in tlie interest of prosecuting this suit, and has allowed his name to lie used to try a ‘test case.’ admitting that he is the person through whom the other farmers are trying to establish their contentions. “Mr. Bliss himself refused to consider an offer of purchase made to him in June, 1906, by an agent of tlie defendant, having given as a reason for such action the pendency of this suit, and that he had yielded management of his place to Mr. K. D. Smith, and to Mr. Clinton, who was counsel for the Farmers’ Association. “Now, Inasmuch as we have ascertained that some damage, the amount of which is not susceptible of correct ascertainment from the evidence, has been done to the complainant’s farm by the operation of the Washoe Smelter, attention is next appropriately addressed to what, if any, abnormal conditions existed in the Deer Lodge Valley before the evidence in the present suit was submitted, which are due to acts of these defendants? It is established that there was more or less spotting on the vegetation, caused by the smoke from the stack. The spotting is explained by one of the expert botanists as due to the dropping of substances in the smoke stream on the vegetation, which kill the immediate section they fall upon. Technical botanists disagree radically as to the extent of the area so spotted; some called by defendants confining it to within five miles of the stack, while those called by complainant say it was observable as far away as 13 miles northwesterly. By the botanical evidence, including the exhibits, it is made apparent how very difficult to distinguish between the spotting of vegetation by sul-phur and certain other injuries, for instance, alkali, sun scald, insect, hail, or fungus growth. To one unskilled in technical plant life, the only way to resolve the divergent views of the scientists is to form an opinion of the existing conditions, as they actually appeared to intelligent, practical farmers and dairymen, and as practical agricultural results may reflect upon the matter, and then to consider and correlate the scientific evidence to such conditions. This I have done with great care, and my best judgment is that there has been no substantial injury done to Mr. Bliss’ land, or to the crops thereon, by the sulphur discharged into the atmosphere since the big stack was built, and that there has been no general, substantial; harmful effect from the smoke upon the quantity of the crops produced upon the Bliss or other lands, and that no permanent injury has been done to complainant’s or other lands in the valley. There was evidence showing past injuries to coniferous timber on the hills back of the smelter, and it was made quite clear that damage is now being done in the hills right back of the smelter along Mill creek, where the smoke spreads through a draw, the bottom of which approaches the level of the top of the chimney. But, apart from this special damage in this immediate vicinity, the weight of the evidence is to the effect that the principal damage to timber was done before the new stack was operated — some by the fumes, and some, which is attributed to smoke, was done by fires at different times in years gone by. “Let us now briefly inquire into the conditions of animal life upon the farms within a few miles of the smelter. After the Washoe Smelter commenced to operate, many horses, that were in pastures in the valley, suffered from sore noses. The sore noses were observed in some horses on the Bliss ranch. Stated in ordinary language, the sore nose ailment consists of a sort of ulcer, from one to three inches in length, on the septum in the direction of' the upper lip, and appears as if it were produced by a burn, or an irritating medicinal blister, or acid; the ulcer often containing a large piece of dead skin tissue, in a few instances involving the lining membrane of the nose and penetrating the partition between the nostrils. The horses affected, generally speaking, also had garlicky breaths, rough coats, and suffered from diarrhea; some were thin; some were quite easily exhausted; and many appeared to be unthrifty. The ulcers would heal with ordinary stable care, and the animal would nearly always recover if taken away from the valley pastures. Numbers of horses so affected were killed for examination, and post mortem investigations disclosed lesions affecting the stomach, intestines, liver, kidneys, spleen, heart, respiratory organs, and membranes •of the brain. Chemical analyses of certain animal tissues were also made by experts, and more or less arsenic trioxide found. Many cattle were affected. None of the cattle had sore noses; witnesses saying that this was because cattle can clean their nostrils with their tongues, while horses cannot. Some of the symptoms manifested in cattle were garlicky breaths, rough coats, coughs, tucked-up bellies, scouring and drooling. Eliminating the sore nose, the lesions found in the cattle examined after death were generally similar to those found in the horses. In one of a number of steers that had been kept by defendants for experimental purposes upon the Bliss pastures, which was killed for examination by Dr. Formad, of the government -..ervice, there were found vascular changes, epithelial changes, and connective tissue changes which were evidently caused by irritant poison. “By again reasoning from facts seen and testified to by plain witnesses, and weighing what things were so actually seen with what experts have said and with what experiments have been made, out of the mass of evidence 1 must conclude that J.he lesions observed were caused by the irritant or corrosive poison arsenic. This arsenic was deposited to a greater or lesser extent upon the fodders of the pastures, and when ingested by live stock iia.used ailment and sickness. The most rational view is that the volume of the smoke stream witli its arsenic contents is at times carried by air currents upon tbe lands adjacent to tbe smelter; that sometimes the volume is much more dense than at other times, depending upon atmospheric conditions; but that when the smoke is dense and low there is a precipitation of more or less arsenic upon the fields; that a sufficient quantity is precipitated to poison the pastures; and that animals feeding thereon are poisoned. Naturally, owing to variable winds, there is no rule of distribution of the smoke, >io that there is no uniform extent of the results oí the smoke upon animal life. Hundreds of animals which graced in the vicinity near to the smelter have never shown the slightest symptoms of poison; cows In the city of Anaconda have thrived in the highest degree; perhaps but a few animals out of a large number grazing in the same field have been affected at all. Yet, after all, when the facts as well as expert opinions are assembled and harmonized, the strength of the whole proof is such that it practically excluded any general cause for animal wnthrifHness other than arsenical poisoning. “But, while the conclusion just reached is the only accurate one under the evidence, still it must not be taken that it has been arrived at without overruling a strong challenge to every single issue pertaining to live stock conditions. To some of these matters it is proper to advert briefly. For instance, it is not to be inferred that the complainant has sustained his contention that the sickness in animals has been fatal, or that it has been so general through the Doer Lodge Yalley as to make the raising of live stock either impossible or unprofitable in all parts thereof. Oompiniiumt called as witnesses less than half of the farmers in the Farmers’ Association; whereas, defendants introduced the testimony of a number of farmers, not members of the association, who have lived for years in the vicinity of the smell,or, within the so-called ‘Smoke Zone,’ and who said that they had had no trouble with their stock or crops since 1903, and that their ranches were profitable. Nor can it be doubted that, upon the cross-examination of many of complainant’s witnesses, it developed that there had been not a little confusion be-iween live stock conditions which existed prior io 1903 and those that have existed since. These dates are most material, because without doubt great damage was done by the smoke before 1903 (partly to remove the cause of which the smelter was remodeled, and the high stack built), and because tbe gist of the present suit is to close the smelter to prevent future damage reasonably certain to continue. “It would appear, too, as showing that tbe sickness is not fata], that, notwithstanding tbe somewhat abnormal condition of animal life that has existed since 100.'!, the percentage of death rate among live stock through the valley in 3900 was normal, in that, out of about, 9,334 head of cattle and 1,(532 horses accounted for, the total loss was 54 cattle and 38 horses. Animals seem to sicken slowly, and often fail to show their true condition without careful examination. As apposite to this statement, the student of animal diseases and of pathology and toxicology will be especially interested in reading of the elaborate experiments made by tbe experts in tbe case, and will be enlightened by the precision of learning displayed in their testimony. But it is the whole evidence, lay and expert, practical and theoretical, that has led to the finding of arsenical poisoning, as heretobefore ascertained. “A fair conclusion of the fact is that there has been exaggeration by some of the complainant’s witnesses of conditions since 1903, and, as already indicated, much carelessness of statement in defining injury done before and since the new stack was put into use. It is to be remarked, too, that the evidence tends to show .an improvement in animal conditions in 1906 over 1905, but exactly why this is so does not appear. It may be that there is less stock near to tlie snaelter, and that the animals that were poisoned in 1908, before the new stack was built, continued to be ill through 1904 and 1905, and then recovered, or it may be that in 1900 defendants, by the construction of another arsenic furnace, or otherwise, took additional measures to eliminate arsenic from the flue dust at the smelter. No satisfactory reason can be gathered, and the mere fact that there was a betterment was left standing, not to be overlooked, though among the things that aid in final solution. “Fortunately, I have been helped to a better understanding of much of the testimony in the record — indeed, of the whole case — by a visit of two days to the valley, during which time I rode many miles in an automobile in various directions from the smelter. The trip was made in. August, 1905, in company with the master in chancery, counsel for complainant and defendants herein, and one or more expert witnesses for the respective litigants. As I had asked the several counsel to call my attention to anything they thought worthy of particular notice, it is fair to say that I had an excellent opportunity to gain a general, though, of course, somewhat superficial, insight into conditions. Upon the first day, which was bright, the smoke from the big stack rose high into the air, and seemed to be carried far away, so high that its diffusion would seem to have been too general to do injury to any land; but on the second day the weather was rainy and the clouds were lower. The smoke then was more dense, and its stream was carried down toward the Bliss ranch and southerly, and northerly for a few miles toward the center of the floor of the valley, and was there dissipated. The trip impressed one main thing very firmly upon me that neither the eye nor the training of an experienced or scientific agriculturalist was required to ascertain. It was that the allegation of complainant’s bill, to the effect that the Deer Lodge Yalley and the country adjacent to the smelter is barren and desert like, is grossly inaccurate. It is true that the land and vegetation lying -within, say, a quarter of a mile of the smelter, is visibly affected. But outside of this limited area there was the appearance of healthy, natural conditions of successful cultivation and of such crop growths as are usually seen in the valleys of the state. The harvest was going on. We saw hundreds of healthy looking shade and fruit trees about farm houses, while the grain fields and pastures looked as others in Montana generally do during or just after harvest. We walked over a portion of complainant’s place, noticed the foxtail and inferior quality of the grasses growing; and, except for the smoke on the second day, there was nothing in the physical appearance of the complainant’s farm or the valley that indicated unusual or abnormal conditions. Prof. Jones, of Utah, one of the botanical experts, representing complainant, showed me some spots on vegetation just beside the smelter, and in gardens upon ranches and also upon some leaves of trees growing on a ranch about 10 miles away, which he said were due to smoke. I saw spots also upon apples on the trees at another ranch; but there is evidence tending to show that the marks on the fruit were due to hail. We saw cattle and horses in the fields and particularly noticed a number of fine/ looking cows within the pasture on complainant’s place. My attention was also called to several horses that had been driven into a corral at the Staffanson ranch for me to see; one or two had sore noses, and one or more sick and paralyzed; but just when these animals became sick is uncertain, for a witness called by the defendants testified concerning them as follows: “ ‘Q. Did you see some horses that were exhibited to Judge Hunt that had sore noses on that trip? A. I saw a bunch of horses in Mr. Staffanson’s corral that they had picked especially, I think, for Judge Hunt’s benefit, that they showed there, and I saw Dr. Cheney point out a black horse that we paid Hi Staffanson the full price for as a horse being ‘smoked,’ when Judge Hunt was with us. Q. When had the companies paid for that horse? A. they paid for it some time in 1903, paid Staffanson. Q. Was this collection of prize horses the derelicts that had been left over from 1902 and 1903? A. I know some of them were. There was a brown mare from Tom Boland’s, that we paid Duncan for. That was one of the left over horses. And several there from Mr. Staffanson’s I could not name them, that had been set-tied for. They liad evidently picked every poor horse in the country that they could get, and brought to that corral. They did not show any good ones, though there were some in the stable.’ “I also saw a small band of cattle that were at a corral in another part of the valley. A few of them looked unthrifty and as if they had not shed their winter coats. "The purely equitable defenses next demand attention. To particularize some facts: When the site of the old works was chosen, the land now occupied by the city of Anaconda was vacant and unoccupied; but, at the time of 'the commencement of .the construction and the employment of many persons in the construction work, a community was established, and in time the city of Anaconda grew until if now has a population of about 12,000. Thia city owes its growth and prosperity to the conduct of the smelting business at the Washoe Smelter, and its population is dependent for subsistence, directly or indirectly, upon the continued operation of the smelter. It is a well-built city, where many people have made homes for themselves; _ has a superior class of business buildings; and had an assessed valuation in 1906 of $3.300,000. The people living there have made their investments, believing that the smelting works would continue to operate, and. as would be natural, the products of the Deer Dodge Valley — hay, vegetables, garden truck, grain, alfalfa, live stock, and other farm products — have generally found ready market at good prices In Anaconda. In 1905, though, there were some complaints made against Deer Dodge Valley hay, and sales were not as ready as they would have been had buyers not believed the hay was ‘smoked’; but in 1906 there was quick sale for it all at current market prices. “It is proven that, even if the defendants could find a more suitable location for the smelter in order to avail themselves of it, a new railroad track system would have to be built to convey the ores from the mines at Butte, and, in the construction of new works which would take five years to build, the salvage from the present plant would not bo worth more Hum a million dollars. Furthermore, the natural advantages for a, smelting plant, on account of the favorable grades from the mines at Butte to the Washoe Smelter, and on account of the water and lime rock and other facilities necessary in the economical and profitable operation of a smelting plant, could not be found elsewhere, and, as a result, transportation cost would be increased,, and mining of a very large percentage of the ores now treated at the Washoe Smelter could not be successfully carried on. No known site exists in Montana where the operations of the Washoe Smelter can he carried on with less damage and inconvenience to surrounding property and inhabitants than the present site. “As further evidence of the importance of the defendants’ works to the communities of the state, it is proven that the total assessed valuation of the properly in Deer Dodge county, within which Anaconda is situated, in 1004, was SS,120,826; that of such amount $4,058,573 was assessed against, the property of the defendants; that from 1902 to 1906 the defendants have paid gnore than 51 per cent, of the total taxes of the county; and that if an injunction were to bo issued, as prayed for, the property of the defendants would be practically valueless, and necessarily there would be such a reduction in the assessable property within the county as to make it impracticable to continue the county organization of Deer Dodge county. “To show the great harm that would be done by the closing of the smelter, it is established that Butte, with a present population of over 70,000, has grown within the last 30 years from a. mining camp, because of the development of the copper mines, many of which belong to and are operated by the defendants herein. Practically the whole population of Butte depends upon the continued operation of the copper mines, and about two-thirds of all of the ores mined at Butte are treated and reduced at the Washoe Smelter. “The effect of stopping the works at Anaconda would he to deprive Silver Bow county, wherein Butte is situated, of at least 30 per cent, of the total taxes collected, and as a consequence there would be a great depreciation in the value of all property iu that county, which is now subject to assessment, and that, because .of the revenues paid to the state by the counties of Silver Bow and Deer Dodge, the income of the state would be materially affected. “It is in evidence, also, that the defendants use vast quantities' of. coal, boke, and'lumber, which are supplied from points within Montana, other than Butte and Anaconda, and that in supplying them employment to a large percentage of the population is furnished; that during 1006 there were 4,54S men employed in the mines which furnished ore to the Washoe Smelter; that in the same year there were about 2,500 men employed in the reduction works; that the railroads operating within Montana derive their earnings largely from the freight handled in connection with the operations of the defendant companies; that in the first six months of 1906 the defendant companies paid to the men employed directly by them, including the money paid out by the companies which ship ores for treatment to the Washoe Smelter, over $5,000,000; that the railroad freight paid during the first six months of 1906 exceeded $1,400,000; and that the defendant companies paid out for material, largely furnished from different points within Montana and elsewhere, yearly amounts of about $4,000,000. “As further evidence of the magnitude of the interests involved, it appears that the defendants’ works, since 1902, have expended over $7,000,000 in labor, "over $4,000,000 for coal, over $4,000,000 for coke, over $740,000 for lime rock, over $1,300,000 for machinery, and over $53,000 for lumber; that up to June 30, 1906, the ores treated at the Washoe Smelter yielded over 590,000,000 pounds of copper, over 25,000,000 ounces of silver, and over 164,000 ounces of gold; and that annually from 17 to 20 per cent, of the supply of copper in the United States has been produced by the Washoe Smelter.”