The first ground upon which a rehearing is asked for is: That the Court overlooked the undisputed facts in the statement that "after the installation of the chlorination process, practically all the tailings were affected by that process," the fact being, as contended by appellant, that, after the installation of that process, the defendant discharged into the stream the natural tailings from its stamps, as it had done as far back as 1879; and that, after the installation of that process, only from one-twelfth to one-fifteenth of the natural tailings from the stamps have been arrested and treated by that process.
The undisputed evidence is that, after the installation of the chlorination process, practically all of the crushed ore was subjected to a mechanical process, which separated from it practically all the sulphides contained therein. These sulphides, contained in the concentrates, were then carried to the chlorination mill and, after being roasted, were subjected to the chemical process of chlorination to extract the gold. Therefore, the tailings from the stamps contained practically no sulphides, and were not of the same character *Page 8 as had been previously discharged. The testimony was conflicting as to whether there was any damage done to plaintiff's lands prior to the installation of the chlorination process. The plaintiff's witnesses generally testified that no appreciable damage was done until after the installation of that process, while some of the defendant's witnesses testified that the damage began before its installation.
There was no dispute, however, upon the point that whatever damage was done was caused by the sulphides contained in the tailings. The defendant so contended in evidence at the trial, and so states in its petition for rehearing.
Inasmuch as the sulphides are admittedly the only deleterious element in the tailings, and inasmuch as the undisputed evidence shows that practically all the sulphides were separated from the ore and subjected to the process of chlorination, the statement that, after the installation of that process practically all the tailings were affected by that process, was, from a practical view of the case, substantially correct, for the deleterious element in the tailings were uppermost in the mind of the Court.
The next ground taken is that the Circuit decree does not clearly define the scope of the injunction which is allowed, in that it is not certain, from the language of the decree, whether the defendant is enjoined from discharging into the stream only the tailings from its chlorination mill, or whether it is also enjoined from discharging therein the tailings from its stamps, which have not been subjected to the chlorination process.
It will be noticed that this Court, in its opinion, quoted the language of the Circuit decree, granting plaintiff's motion for "injunction to stop the nuisance complained of and now found to exist." These words were used by the Circuit Judge in stating his conclusion, but he had previously said: "There is no question but that the defendant has used the stream in its mining operation for more than twenty *Page 9 years, but the sharp issue was made that within recent years, that of the statutory period, the defendant installed what the witnesses called a chlorinating process, which process is ruinous to vegetable life. On that issue the jury found for the plaintiff." This language of the Circuit decree, in view of the fact that the record shows that the real contest in the Circuit Court was as to the injurious effects of the tailings from the chlorination process, must be construed as enjoining only the discharge from the chlorination mill; and the questions whether the tailings which were not subjected to the chlorinating process were or were not injurious to the plaintiff's land, and whether the defendant has acquired a prescriptive right to discharge such tailings into the stream are left open.
The appellant further contends that, in holding that when the existence of a nuisance has been established by the verdict of a jury, the party injured is entitled, as a matter of right, to an injunction to prevent its continuance, the Court overlooked the principles announced in State v. Water Power Co., 82 S.C. 181. That case was different from this, in that that it was an action by the State to enjoin the obstruction of a navigable stream, for which there could be no way of estimating damages to the public, and relief could be obtained only by injunction. But, in that case, the principle announced in this case was recognized. At page 193, the Court said: "It is well established that an individual has a right to injunction against threatened, repeated, or continued injury to his property rights." And, again, on page 194, "The right of the State and the proposed violation by the defendants of that right, being perfectly clear, the Court cannot refuse to enforce the State's right by enjoining the defendant's proposed obstruction on the ground that the right of navigation of the Columbia Canal may be of small value in comparison with the great value to the city of Columbia of the obstruction it proposes *Page 10 to erect. The Court's discretion is not broad enough to permit it to refuse to protect either private or public property or rights, because the invasion of such property or the violation of such right would be of benefit to an individual or to a portion of the public. Mason v. Apalache Mills, 81 S.C. 561,62 S.E., 399." The principle announced in the opinion herein is not only sustained by the cases cited in the opinion, but by numerous others. Some of these are:Kennerty v. Etiwan Phosphate Co., 17 S.C. 411; Simonds v. Haithcock, 18 S.C. 604; McClellan v. Taylor, 54 S.C. 430,32 S.E., 527; Ragsdale v. Southern Ry., 60 S.C. 381,38 S.E., 609.
To allow the defendant to say that, because it has injured the lands of the plaintiff to the extent of having completely destroyed their usefulness for agricultural purposes, and because the plaintiff has recovered a judgment for full damages therefor up to the date of the verdict, it should not be enjoined from further trespassing upon the plaintiff's rights, would, in effect, allow the defendant to take the property of the plaintiff for its own use, without the plaintiff's consent, in violation of the inhibition of the Constitution, that private property shall not be taken for private use, without the consent of the owner.
Observation and experience teach us that nature is a wonderful restorer, and it is altogether probable that, in the course of years, the plaintiff's lands, which have been so injured as to be thought by some of the witnesses to be ruined, will be restored to fertility by the processes of nature. But, be that as it may, they belong to the plaintiff, and the defendant has no right to continue its trespass thereon. The plaintiff has the right to have the waters of the stream flow through her land unpolluted, so that the cattle in her pasture will drink thereof, and the testimony tends to show that stock will not drink of the water when polluted by the tailings in question. *Page 11
For these reasons the petition for a rehearing should be refused, the injunction allowed by the Circuit Court being limited as therein intended and as hereinbefore indicated.
MR. CHIEF JUSTICE JONES did not sit in this case.