The Coeur d'Alene press. (Coeur d'Alene, Idaho) 1892-1907, 1905-06-17

court, has handed down an opinion
in the case of Timothy NJ. MoCarty
ct al VS., the Bunker Hill X Sullivan
Mining X Concentrating company ct
al, involving the alleged poisoning
of lands along the Occur d'Alene
river below the company mill, deny
ing the injunction asked for by the
plaintiffs. In his decision Judge
Beatty takes occasion to severely re-
buke the bringing of what is con-
sidered an unfounded action. Some
of his structures upon the attorneys
and parties interested in bringing
the suit are exceptionally severe.
The plaintiffs in the suit asserted
they had taken up lands along the
Occur d'Alene river in 1890 and
1891 and claimed that lead from the
mill Of the defendant company had
permeated the taiIings and poisoned
the waters OF the river down the
stream. Overfiows had left poison
Gus deposits on the adjacent land, it
was alleged, and this had destroyed
vegetation and had poisoned grass
and hay and caused the death 81
domestic animals which ate il. The
same fatal effect had followed the
drinking Of the water, so it was
claimed. 1t was also alleged the
river had been allied up with deposits
from the mill until it was no longer
navigable.
Judge Beatty, in company with the
attorneys in the case, visited the
scene Of the alleged damage on May
"A, looking into conditions at a
number Of the farms which il was
claimed had been practically destroy.
ed by the poisonous deposits from the
river. The two dams Of the com.
pany at Osborn and Pine Creek we're
visited
CHANNEL NOT FILLED UP.
"After most careful observation, -
says Judge Beatty in his opinion,
mo justification appeared for the
charge that the channel OF the river
had been so filled with mining de-
posits and debris that il is no longer
we'll defined or that it has been filled
more than 90 feet, or that large
deposits Of such debris have been
made upon the lands.
The debris, it is stated, consists Of
tailings graduated from small pebbles
down to fine sediment, and that but
little OF it can Be carried by the cur
rent below the dams.
The banks were found t. be every
where from four to six feet above the
water on the date mentioned, and the
current was deep enough to float a
battleship,' soundings showing 80
feet. Others had shown 40 The
captain Of a steamboat, had reported
the water as deep as it was in 1854.
Continuing, the opinion says:
The wild assertions Of complain.
ants are without Justification They
cannot shelter themselves behind the
tiimsy veil that they believed them
because so told. \ man must have
some reason for his belief before as
sorting it as a truth. 1t seems by
some to be considered admissible
practice in litigation to assert any
thing, regardless Of the truth. that
will constitute non -demurable
case.
IT is the duty that counsel owe to
the courts to see that their clients
present to them only the truth
Courts will eUdeavor TO see that no
man shall succeed through mis-
representation It must be conclud
ed either that these complainants
intended to deceive the court, or
were themselves deceived By their
own culpable negligence. In either
event a court Of equity would not be
justified in granting the relief they
ask ="
Judge Beatty enters into the ques-
ton Of the contradictory affidavits
filed regarding the presence Of
poisonous substances in the waters of
the river, as asserted by the chemists
on either side, aud concludes that
the court would be unable to justify
itself from these afiidavits 10 issuing
restraining order.
1t Is also pointed out that to issue
the restraining order asked for would
mean "the closing down Of every
mill and mine, of every shop, store
OF place Of business, in the Occur d.
AIenes. There are about 10000
people, the majority Of whom are
laboring people, dependant upon the
mines for their livelihood.
Not only would their present
occupation cease, but all these people
must remove to other places, for the
mines constitute the sole means Of
occupation and when they finally
close, Wallace aud Warduer. Gem
a