trail smelter

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REPORTS OF INTERNATIONALARBITRAL AWARDS

RECUEIL DES SENTENCESARBITRALES

Trail smelter case (United States, Canada)

16 April 1938 and 11 March 1941

III pp. 1905-1982VOLUME

NATIONS UNIES - UNITED NATIONSCopyright (c) 2006


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L X .TRAIL SMELTER CASE K

PARTIES: United States of America, Canada.

SPECIAL AGRE EM ENT: Con vention of Ottaw a, A pril 15, 1935 .

ARBITRAT ORS: Charles W arren (U.S.A.) , Rob ert A. E. Green-shields (Canada), Jan Frans Hostie (Belgium).

AWARD: April 16, 1938, and March 11, 1941.

Canadian company.Smelter operated in Canada.Fumes.Damagescaused on United States territory.Recourse to arbitration.Date ofdamages.Evidence.Cause.Effect.Indirect and remote damage.Violation of Sovereignty.Interpretation of Special Agreement as toscope.Preliminary correspondence.Interest.Future rgime applic-able.Appointment of technical consultants.Law applicable.Nationallaw. M atters of procedure. Con vention, Article IV. Reference toAmerican law.Provisional decision.Certain questions finally settled.Res judicata.Error in law.Admissibility of revision.Powers of tribunal.Discovery of new facts.Denial.Costs of investigation.Claim forindemnity.Such costs no part of damage.Claim for request to stop thenuisance.Law applicable.Coincidence of national and internationallaws.Responsibility of States.Air and water pollution.Protection ofsovereignty.Institution of rgime to prevent future damages.Indemnityor compensation on account of decision or decisions rendered.

1 For bibliography, index and tables, see end of this volume.


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1907

Special agreement.CONVEN TION FOR SETTLEM ENT OF DIFFICULTIES ARISING FROM OPE RATIO N OF

SMELTER AT TRAIL, B.C. 1Signed at O ttawa, April 15, 1 935; ratifications exchanged Aug. 3, 1935

The President of the United States of America, and His Majesty the Kingof Great Britain, Ireland and the British dominions beyond the Seas,Emperor of India, in respect of the Dominion of Canada,Considering that the Government of the United States has complained tothe G overnm ent of Ca nad a th at fumes discharged from the smelter of theConsolidated Mining and Smelting Company at Trail, British Columbia,have been causing damage in the State of Washington, andConsidering further tha t the Internatio nal Jo int Comm ission, establishedpursuant to the Boundary Waters Treaty of 1909, investigated problems arisingfrom the operation of the smelter at Trail and rendered a report andrecommendations thereon, dated February 28, 1931, andRecognizing the desirability and necessity of effecting a permanent settle-ment,Have decided to conclude a convention for the purposes aforesaid, and tothat end have named as their respective plenipotentiaries:Th e President of the U nited States of Am erica :PIERRE DE L. BOAL, Charg d'Affaires ad interim of the United Statesof America at Ottawa;His Majesty the King of Great Britain, Ireland and the British dominionsbeyond the Seas, Em peror of India, for the Dom inion of Canada :The Right Honorable RICHARD BEDFORD BENNETT, Prime Minister,President of the P rivy Council and Secretary of State for ExternalAffairs ;Who, after having communicated to each other their full powers, foundin good an d d ue form, have agreed upon the following Articles :

ARTICLE I.The Government of Canada will cause to be paid to the Secretary of Stateof the United States, to be deposited in the United States Treasury, withinthree months after ratifications of this convention have been exchanged, thesum of three hundred and fifty thousand dollars, United States currency, inpaym ent of all dam age which occurred in the United States, prior to the firstday of Ja nu ar y, 1932, as a result of the operation of the Trail Smelter.

ARTICLE II.The Governments of the United States and of Canada, hereinafter referred

to as "the Governments", mutually agree to constitute a tribunal hereinafterreferred to as "the Tr ib un al", for the purpose of deciding the questions1 U. S. Treaty Series No. 893.


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1 9 0 8 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)referred to it und er the provisions of Article II I . The Tr ibu na l shall consistof a chairman and two national members.

The chairman shall be a jurist of repute who is neither a British subject nora citizen of the Un ited States. H e shall be chosen by the Governm ents, or,in the event of failure to reach agreement within nine months after the ex-change of ratifications of this convention, by the President of the PermanentAdministrative Council of the Permanent Court of Arbitration at The Haguedescribed in Article 49 of the Convention for the Pacific Settlement of Inter-national Disputes concluded at Th e H ague on O ctober 18, 1907.The two national members shall be jurists of repute who have not beenassociated, directly or indirectly, in the present controversy. On e memb ershall be chosen by each of the Governments.The Governments may each designate a scientist to assist the Tribunal.ARTICLE III .

Th e Tr ibu na l shall finally decide the questions, hereinafter referred to as"the Questions", set forth hereunder, namely:( 1 ) W hether damage caused by the Trail Smelter in the State of Washingtonhas occurred since the first day of Jan ua ry, 1932, and, if so, wha t indem-nity should be paid therefor?(2) In the event of the answer to the first part of the preceding Questionbeing in the affirmative, whether the Trail Smelter should be requiredto refrain from causing damage in the State of Washington in thefuture and , if so, to what extent?(3) In th e light of the answer to the preceding Question, wh at measures orrgime, if any, should be adopted or maintained by the Trail Smelter?(4) What indemnity or compensation, if any, should be paid on accountof any decision or decisions rendered by the Tribunal pursuant to thenext two preceding Questions?

ARTICLE IV.The Tribunal shall apply the law and practice followed in dealing withcognate questions in the United States of America as well as international lawand practice, and shall give consideration to the desire of the high contractingparties to reach a solution just to all parties concerned.

ARTICLE V.The procedure in this adjudication shall be as follows :1. Within nine months from the date of the exchange of ratifications of thisagreement, the Agent for the Government of the United States shall presentto the Agent for the Government of Canada a statement of the facts, togetherwith the supporting evidence, on which the Government of the United Statesrests its complaint and petition.2. Within a like period of nine months from the date on which this agree-ment becomes effective, as aforesaid, the Agent for the Government of Canadashall present to the Agent for the Go vernment of the U nited States a statement

of the facts, together with the supporting evidence, relied upon by the Govern-ment of Canada.3. W ithin six months from the date on which the exchange of statementsand evidence provided for in paragraphs 1 and 2 of this article has been com-


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 0 9pleted, each Agent shall present in the m anner prescribed by paragraph s 1 and2 an answer to the statement of the- other with any additional evidence andsuch argument as he may desire to submit.

ARTICLE VI.When the development of the record is completed in accordance with Arti-cle V hereof the Governments shall forthwith cause to be forwarded to eachmember of the Tribunal a complete set of the statements, answers, evidenceand arguments presented by their respective Agents to each other.

ARTICLE VII.After the delivery of the record to the members of the Trib unal in accordancewith Article VI the Tribunal shall convene at a time and place to be agreedupon by the two Governments for the purpose of deciding upon such furtherprocedure as it may be deemed necessary to take. In determining upon suchfurther procedure and arranging subsequent meetings, the Tribunal will con-sidei the individual or joint requests of the Agents of the two Governm ents.

ARTICLE VII I .The Tribunal shall hear such representations and shall receive and considersuch evidence, oral or docum entary, as may be presented by the Governments

or by interested parties, and for that purpose shall have power to administeroaths. The Tribunal shall have aulhority to make such investigations as itmay deem necessary and expedient, consistent with other provisions of thisconvention.ARTICLE IX.

Th e Ch airm an shall preside at all hearings and other m eetings of theTribunal and shall rule upon all questions of evidence and procedure.In reaching a final determination of each or any of the Questions, theChairman and the two members shall each have one vote, and, in theevent of difference, the opinion of the majority shall prevail, and the dissentof the Chairman or mem ber, as the case may be, shall be recorded. In theevent that no two members of the Tribunal agree on a question, the Chairmanshall make the decision.

ARTICLE X.The Tribunal, in determining the first question and in deciding upon theindem nity, if any, w hich should be paid in respect to the years 1932 and 1933,shall give due regard to the results of investigations and inquiries made insubsequent years.Investigators, whether appointed by or on behalf of the Governments, eitherjointly or severally, or the Tribu nal, shall be permitted at all reasonable times

to enter and view and carry on investigations upon any of the properties uponwhich damage is claimed to have occurred or to be occurring, and their reportsmay , either jointly or severally, be submitted to and received by the Tribu na lfor the purpose of enabling the Trib una l to decide upon any of the Questions120


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1 9 1 0 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)ARTICLE XI.

The Tribunal shall report to the Governments its final decisions, togetherwith the reasons on which they are based, as soon as it has reached its conclu-sions in respect to the Questions, and within a period of three m onths after theconclusions of proceedings. Proceedings shall be deem ed to have been con-cluded when the Agents of the two Governments jointly inform the Tribu naltha t they have nothing additional to present. Such period may be extendedby agreement of the two Governments.Upon receiving such report, the Governments may make arrangements forthe disposition of claims for indemnity for damage, if any, which may occursubsequently to the period of time covered by such report.ARTICLE XII.

The Governments undertake to take such action as may be necessary inorder to ensure due performance of the obligations undertaken hereunder, incompliance with the decision of the Tribunal.ARTICLE X I I I .

Each G overnm ent shall pay the expenses of the presentation and conduct ofits case before the Tribunal and the expenses of its national mem ber andscientific assistant.All other expenses, which by their nature are a charge on both Governments,including the honorarium of the neutral member of the Tribunal, shall beborne by the two Governments in equal moieties.ARTICLE XIV.

This agreement shall be ratified in accordance with the constitutional formsof the contracting parties and shall take effect immediately upon the exchangeof ratifications, which shall take place at Ottawa as soon as possible.IN WITNESS WHER EOF, the respective plenipotentiaries have signed this con-vention and have hereunto affixed their seals.Done in duplicate at Ottawa this fifteenth day of April, in the year of ourLord, one thousand, nine hundred and thirty-five.

[seal]PIERRE DE L. BOAL.[seal] R. B. BENNETT.


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 1 1

TRAIL SMELTER ARBITRAL TRIBUNAL.DECISION

REPORTED ON APRIL 16, 1938, TO THE GOVERNMENT OF THE UNITED STATES OFAMERICA AND TO THE GOVERNMENT OF THE DOMINION OF CANADA UNDER THECONVENTION SIGNED APRIL 15, 1935.This Tribunal is constituted under, and its powers are derived from andlimited by, the Convention between the United States of America and theDominion of Canada signed at Ottawa, April 15, 1935, duly ratified by thetwo parties, and ratifications exchanged at Ottawa, August 3, 1935 (herein-after termed "the Convention").By Article II of the Convention, each Government was to choose one memberof the Trib una l, " a jurist of rep ute ", and the two Governments were to choosejointly a Chairman who should be a "jurist of repute and neither a Britishsubject nor a citizen of the United States".The members of the Tribunal were chosen as follows: by the United Statesof Am erica, C harles W arren of Massachusetts ; by the D ominion of Can ada,Ro bert A. E . Greenshields of the Province of Qu ebe c; by the two G overnmentsjointly, Jan Frans Hostie of Belgium.Article II, paragraph 4, of the Convention provided that "the Governmentsmay each designate a scientist to assist the Tribunal"; and scientists weredesignated as follows: by the United States of America, Reginald S. Dean ofMissouri; and by the Dominion of Canada, Robert E. Swain of California.The Tribunal desires to record its appreciation of the valuable assistancereceived by it from these scientists.The duty imposed upon the Tribunal by the Convention was to "finallydecide" the following questions:(1) W hether damag e caused by the T rail Sm elter in the State of Washing-ton has occurred since the fiist day of January, 1932, and, if so, whatindemnity should be paid therefor?(2) In the event of the answer to the first part of the preceding questionbeing in the affirmative, whether the Trail Smelter should be requiredto refrain from causing damage in the State of Washington in the futureand, if so, to what extent?(3) In the light of the answer to the preceding question, what measures orrgime, if any, should be adopted or maintained by the Trail Smelter?(4) What indemnity or compensation, if any, should be paid on accountof any decision or decisions rendered by the Tribunal pursuant to thenext two preceding questions?


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19 12 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)The Tribunal met in Washington, in the District of Columbia, on June 21,22 , 1937, for organization, adoption of rules of procedure and hearing of

preliminary statements. From Ju ly 1 to Ju ly 6, it travelled over and inspectedthe area involved in the controversy in the northern part of Stevens Countyin the State of Washington and it also inspected the smelter plant of the Con-solidated Mining and Smelting Company of Canada, Limited, at Trail inBritish Columbia. It held sessions for the reception and consideration of suchevidence, oral and documentary, as was presented by the Governments or byinterested parties, as provided in Article VIII, in Spokane in the State ofWashington, from Ju ly 7 to Ju ly 29, 1937; in Wash ington, in the Districtof Columbia, on August 16, 17, 18, 19, 1937; in Ottaw a, in the Province ofOn tario, from August 23 to September 18, 1937; and it heard argumentsof counsel in Ottawa from October 12 to October 19, 1937.On Ja nu ar y 2, 1938, the Agents of the two Governments jointly informedthe Tribu nal that they had nothing additional to present. Un der the pro-visions of Article X I of the Convention, it then became the du ty of the T ribu na l"to report to the Governments its final decisions .... and within a period ofthree m onths after the conclusion of the proceed ings" , i.e., on A pril 2, 1938"After long consideration of the voluminous typewritten and printed recordand of the transcript of evidence presented at the hearings, the Tribunalformally notified the Agents of the two G overnm ents tha t, in its opinion,unless the time limit should be extended, the Tribunal would be forced togive a permanent decision on April 2, 1938, on the basis of data which it con-sidered inadequ ate and unsatisfactory. Acting on the recom mendation of theTribunal and under the provisions of Article XI authorizing such extension,

the two Governments by agreemen t ex tended the time for the report of finaldecision of the Tribunal to three months from October 1, 1940.The Tribun al is prepared now to decide finally Question N o. 1, propoundedto it in Article III of the Convention; and it hereby reports its final decisionon Question No. 1, its temporary decision on Questions No. 2 and No. 3, andprovides for a temporary rgime thereunder and for a final decision on thesequestions and on Question No. 4, within three months from October 1, 1940.W herever, in this decision, the T ribu na l has referred to decisions of Americancourts or has followed American law, it has acted pursuant to Article IV asfollows: "The Tribunal shall apply the law and practice followed in dealingwith cognate questions in the United States of America . . . ."In all the consideration which the Tribunal has given to the problemspresented to it, and in all the conclusions which it has reached, it has beenguided by that primary purpose of the Convention expressed in the words ofArticle IV, that the Tribunal "shall give consideration to the desire of the highcontrac ting parties to reach a solution just to all parties con cerned" , and furtherexpressed in the opening paragraph of the Convention as to the "desirabilityand necessity of effecting a permanent settlement" of the controversy.The controversy is between two Governments involving damage occurringin the territory of one of them (the Un ited States of Am erica) an d alleged to bedue to an agency situated in the territory of the other (the Dominionof Canada), for which damage the latter has assumed by the Convention

an internation al responsibility. In this controversy, the Trib unal is notsitting to pass upon claims presented by individuals or on behalf ofone or more individuals by their Government, although individuals maycome within the meaning of "parties co ncerned", in Article IV and of


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 1 3"interested parties", in Article VIII of the Convention and although thedamage suffered by individuals may, in part, "afford a convenient scale forthe calculation of the reparation due to the State" (see Jug dm ent No. 13,Perm anen t Court of Internationa l Justice , Series A, No . 17, pp . 27, 28).

PART ONE.By way of introduction to the Tribunal's decision, a brief statement, ingeneral terms, of the topographic and climatic conditions and economichistory of the locality involved in the controversy may be useful.Th e Colum bia River has its source in the Dominion of Ca nad a. At aplace in British Columbia named Trail, it flows past a smelter located in agorge, where zinc and lead are smelted in large quantities. From Tra il,

its course is easterly and then it swings in a long curve to the InternationalBoundary Line, at which point il is running in a southwesterly direction;and its course south of the boundary continues in that general direction.The distance from Trail to the boundary line is about seven miles as thecrow flies or about eleven miles, following the course of the river (and pos-sibly a slightly shorter distance by following the contour of the valley). AtTrail and continuing down to the boundary and for a considerable distancebelow the boundary, mountains rise on either side of the river in slopes ofvarious angles to heights ranging from 3,000 to 4,500 feet above sea-level,or between 1,500 to 3,000 feet above the river. The width of the valleyprope r is between one and two miles. On both sides of the river are aseries of bench lands at various heights.More or less half way between Trail and the boundary is a place, on theeast side of the river, known as Columbia Gardens; at the boundary on theAmerican side of the line and on the east side of the river, is a place knownas Boundary; and four or five miles south of the boundary on the east bankof ihe river is a farm nam ed after ils owner, Stroh farm. These three placesare specially noted since they are the locations of automatic sulphur dioxiderecorders installed by one or other of the Governm ents. Th e town of No rth-port is located on the east bank of the river, about nineteen miles from Trailby the river, and about thirteen miles as the crow flies, and automaticsulphur dioxide recorders have been installed here and at a point on the westbank northerly of No rthpo rt. It is to be noted that mountains extendingmore or less in an easterly and westerly direction rise to the south between

Trail and the boundary.Various creeks are tributary to the river in the region of Northport. asfollows: Deep Creek flowing from southwest to northwest and entering theriver slightly north of Northport; opposite Deep Creek and entering on thewest side of the river and flowing from the northwest, Sheep Creek; northof Sheep Creek on the west side, Nigger Creek; south of Sheep Creek onthe west side, Squaw Creek; south of No rthpo rt, on the east side, flowingfrom the southeast, Onion Creek.About eight miles south of Northport, following the river, is the town ofM ar bl e; and about seventeen miles, the town of Bossburg. Th ree milessouth of Bossburg is the town of Evans; and about nine miles, the town ofM arcus . South of Marcus and about forty-one miles from the bo unda ryline is the town of Kettle Falls which, in general, may be stated to be thesou thern limit of the area as to which evidence was presented. All theabove towns are small in population and in area.


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1 9 14 U.S.A./CANADA (TRAIL SMEI.TER ARBITRATION)At Marble and to the south, various other creeks enter the river from thewest sideR attlesnake Creek, Crown Creek, Flat Creek, and Fifteen Mile

Creek.Up all the creeks above mentioned, there extend tributary valleys, differ-ing in size.While, as stated above, the width of the valley proper of the river is fromone to two miles, the width of the valley measured at an altitude of 3,000feet above sea-level, is approximately three miles at Trail, two and one-halfmiles at Boundary, four miles above Northport, three and one-half milesat M arble . Nea r Bossburg and southward the valley at the same altitudebroadens out considerably.As to climatic conditions, it may be stated that the region is, in general,a dry one though not wh ai is termed "arid ". Th e average annu al precipita-tion at N orth po rt from 1923 to 1936 inclusive averaged slightly belowseventeen inches. It varied from a minim um of 9.60 inches in 1929 to amax imum of 26.04 inches in 1927. Th e average crop-year precipitation overthe same period is slightly over sixteen inches, with a variation from aminim um of 10.10 inches in 1929 to a maximu m of 24.01 in 1927. T herainfall in the growing-season months of April, May and June at Northport,has been in 1932, 5.43 inches; in 1933, 3.03 inches; in 1934, 2.74 inches;in 1933, 2.02 inches; in 1929, 4.44 inches. The average snowfall was re-ported in 1915 by United States Government agents as fifty-eight inches atNo rthpo rt. Th e average hum idity varies with some regularity from day today. In Ju ne , 1937, at N orthp ort, it had an average max imum of 74 percent at 5 a.m. and an average minimum of 26 per cent at 5 p.m.Th e range of tem peratu re in the different m onths as it appears from therecords of the years 1934, 1935, and 1936, at Northport was as follows: Inthe months of November, December, January and February, the lowesttem pera ture was 1 (in Ja nu ar y, 1936), and the highest was 60 (in Novem -ber 1934); in the growing-season months of April, May, June and July, thelowest temperature was 12 (in April, 1936), and the highest was 110 (inJu ly, 1934); in the remaining months of August, September, October an dMarch, the lowest temperature was 8 (in October, 1935), and the highestwas 102 (in August, 1934).The direction of the surface wind is, in general, from the northeast downthe river valley, but this varies at different times of day and in differentseasons. The subject of winds is treate d in detail in a later part of thisdecision and need not be considered further at this point.The history of what may be termed the economic development of thearea may be briefly stated as follows: Previous to 1892, there were fewsettlers in this area, but homesteading and location of farms received animpetus, particularly on the east side of the river, at the time when the con-struction of the Spokane and Northern Railway was undertaken, which wascompleted between the City of Spokane and N orthp ort in 1892, and extendedto Nelson in British Colum bia in 1893. In 1892, the town of North po rtwas founded. Th e population of N oith por t, according to the U nite dState: Census in 1900, was 787; in 1910, it was 476; in 1920, it was 906; andin 1930. it was 391. Th e population of the area which may be termed, ingeneral, the "Northport Area", according to the United States Census in1910, was 1,448; in 1920, it was 2,142; and in 1930, it was 1,121. Th epopulation of this area as divided into the Census Precincts was as follows:


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 19151900 1910 1920 1930

Boundary 74 91 73 87Northport 845 692 1,093 510Nigger Creek 27 97 29Frontier 103 71 22Cummins 244 89Doyle 187 280 195Deep Creek 65 119 87 81Flat Creek 52 126 137 71Williams 71 103 60 37

(It is to be noted that the precincts immediately adjacent to the boundaryline were Frontier, Nigger Creek and Boundary; and that Frontier andNigger Creek Precincts are at the present time included in the NorthportPrecinct.)The area of all land in farms in the above precincts, according to theUnited States Census of Agriculture in 1925 was 21,551 acres; in 1930,28,641 acres; and in 1935, 24,772 acres. The area in crop land in 1925 was3,474 acres ; in 1930, 4,285 acres ; and in 1933, 4,568 acres. The farm popu-lation in 1925 was 496; in 1930, 603; and in 1935, 466.

In the precincts nearest the boundary line, viz-, Boundary and Northport(including Frontier and Nigger Creek prior to 1935 Census), the area ofall land in farms in 1925 was 5,292 acres; in 1930, 8,040 acres; and in 1935,5,666 acres. The area in crop land in 1925 was 798 acres; in 1930, 1,227acres; and in 1935, 963 acres. The farm population in 1925 was 149; in1930, 193; and in 1935, 145.About the year 1896, there was established in Northport a business whichhas been termed the "Breen Copper Smelter", operated by the LeRoiMining and Smelting Company, and later carried on by the NorthportSmelting and Refining Company which was chartered in 1901. Thisbusiness employed at times from five hundred to seven hundred men,although, as compared with a modern smelter like the Trail Smelter, theextent of its operations was small. The principal value of the ores smeltedby it was in copper, and the ores had a high sulphur content. For someyears, the somewhat primitive method of "heap roasting" was employedwhich consisted of roasting the ore in open piles over woodfires, frequentlycalled in mining parlance, "stink piles". Later, this process was changed.About seventy tons of sulphur were released per day. This Northport

Smelting and Refining Company intermittently continued operationsuntil 1908. From 1908 until 1915. its smelter lay idle. In March, 1916,during the Great War, operation was resumed for the purpose of smeltinglead ore, and continued until March 5, 1921, when it ceased business andits plant was dismantled. About 30 tons of sulphur per day were emittedduring this time. There is no doubt that damage was caused to someextent over a more or less restricted area by the operation of this smelterplant.The record and evidence placed before the Tribunal does not disclose indetail claims for damage on account of fumigations which were madebetween 1896 and 1908, but it does appear that there was considerablelitigation in Stevens County courts based on such claims. It also appearsin evidence that prior to 1908, the company had purchased smoke easementsfrom sixteen owners of land in the vicinity covering 2,330 acres. It furtherappears that from 1916 to 1921, claims for damages were made and suits


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1 9 1 6 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)were broug ht in the courts, and add itional smoke easements were purchasedfrom thirty-four owners of land covering 5,556.7 acres. These varioussmoke easements extended to lands lying four or five miles north and threemiles south and three miles east of Northport and on both sides of the river,and they extended as far as the boundary line.In addition to the smelting business, there have been intermittent miningoperations of lead and zinc in this locality, but they have not been a largefactor in adding to the population.The most important industry in the area in the past has been the lumberindustry. It had its beginning with the building of the Spokane & Northe rnRailw ay. Several saw mills were constructed an d operated , largely forthe purpose of furnishing ties to the railway. In fact, the growing treesyellow pine, Douglas fir, larch, and cedarwere the most valuable asset tobe transformed into ready cash. In early days, the area was rathe r heavilywooded, but the timber has largely disappeared and the lumber business isnow of small size. It appears from the record in 1929 that, within a radiuscovering some thirty-five thousand acres surrounding Northport, fifteenout of eighteen sawmills had been abandoned and only three of the smalltype were in operation. Th e causes of this condition a re in dispute. Adetailed description of the forest conditions is given in a later part of thisdecision and need not be further discussed here.As to agricultural conditions, it may be said that farming is carriedon in the valley and upon the benches and mountain slopes and inthe tribu tary valleys. Th e soils are of a light, sandy na ture , relativelylow in organic matter, although in the tributary valleys the soil is moreloamy and fertile. In some localities, particu larly on the slopes, na tur alsub-irrigation affords sufficient moisture; but in other regions irrigation isdesirable in order to produce favorable results. In a report ma de byDr. F. C. Wyatt, head of the Soils Department of the University of Alberta,in 1929, it is stated tha t " tak en as a unit, the crop rang e of these soils is wideand embraces the crops suited to the climate conditions. U nd er good cul-tural operations, yields are goo d." At the same time, it must be noted tha ta large portion of this area is not primarily suited to agricu lture. In a reportof the United States Department of Agriculture, in 1913, it is stated that"there is approximately one-third of the land in the Upper Columbia Basinunsuited for agricultural purposes, either because it is too stony, too rough,too steep , or a com bination of these factors. To utilize this large prop ortio nof land and to meet the wood needs of an increasing popu lation, the U pp erColumbia Basin is forced to consider seriously the problem of reforestationand conse rvation." M uch of the farming land, especially on the benches,is land cleared from forest growth ; most of the farms contain from an eighthto a quarter of a section (80-160 acres); and there are many smaller andsome larger farms.

In general, the crops gtown on the farms are alfalfa, timothy, clover, graincut green for hay, barley, oats, wheat, and a small amount of potatoes.Wild hay is cut each year to some extent. Th e crops, in general, are grownfor feed rath er tha n for sale, though there is a certain am ount of wheat andoats sold. M uch of the soil is app aren tly well suited to the pred om inantcrop of alfalfa, which is usually cut at present twice a year (with a small thirdcrop on some farm s). Much of the present alfalfa has been rooted for anumber of years.Milch cattle are raised to a certain extent and they are grazed on the wildgrasses on the hills and mountains in the summer months, but the dairying


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 19 1 7business depends on existence of sufficient land under cultivation as anadjunct to the dairy to provide adequate forage for the winter months.

In early days, it was believed that, owing to soil and climatic conditions,this locality was destined to become a fruit-growing region, an d a few orch ardswere planted. For several reasons, of which it is claimed tha t fumigationis one, orchards have not thrived. In 1909-1910, the U ppe r Co lumbiaCompany purchased two large tracts, comprising about ten thousand acres,with the intention of developing the land for orchard purposes and sellingof timb er in the me antim e, and it established a large orchard of about900 acres in the town of M arb le. Th e project, as early as 1917, proveda failure.In 1896. a smelter was started undei American auspices near the localityknown as Tra il. In 1906, the Consolidated Mining and Smelting Com panyof Canada, Limited, obtained a charter of incorporation from the Canadianauthorities, and that company acquired the smelter plant at Trail as it thenexisted. Since that time, the Can adian Comp any, without interrup tion,has operated the Smelter, and from time to time has greatly added to theplant until it has become one of the best and largest equipped smelting plantson this con tinen t. In 1925 and 1927, two stacks of the plan t were erectedto 409 feet in height and the Smelter greatly increased its daily smelting ofzinc and lead ores. This increased product resulted in more sulphu rdioxide fumes and higher concentrations being emitted into the air; and itis claimed by one Government (though denied by the other) that the addedheight of the stacks increased the area of damage in the United States. In1916, about 5,000 tons of sulphur per month were emitted; in 1924, about4,700 tons; in 1926, about 9,000 tonsan amount which rose near to 10,000tons per mo nth in 1903. In other words, about 300-350 tons of sulph urwere being emitted daily in 1930. (It is to be noted th at one ton of sulphuris substantially the equivalent of two tons of sulphur dioxide or SO Z.)From 1925, at least, to the end of 1931, dam age occurred in the State ofWashington, resulting from the sulphur dioxide emitted from the TrailSmelter.As early as 1925 (and there is some evidence earlier) suggestions weremade to the Trail Smelter that damage was being done to property in thenorth ern pa rt of Stevens County. The first formal complaint was made, in1926, by one J . H . Stro h, whose f&rm (mentioned above) w as located a fewmiles south of the bo unda ry line. H e was followed by others, and the Sm elterCom pany took the m atter up seriously and made a more or less thorough andcomplete investigation. This investigation convinced the Trail Smelterthat damage had been and was being done, and it proceeded to negotiatewith the property owners who had made complaints or claims with a viewto settlement. Settlements were made with a num ber of farmers by thepay ment to them of different am ounts. This condition of affairs seems tohave lasted during a period of abou t two years. In Ju n e. 1928, the CountyCommissioners of Stevens County adopted a resolution relative to the fumiga-tions; and on August 25, 1928, there was brought into existence an associa-tion known as the "Citizen s' Protective Association". Due to the creationof this association or to other causes, no settlements were made thereafterbetween the Trail Smelter and individual claimants, as the articles of asso-ciation contained a provision that "no member herein shall make anysettlement for damages sought to be secured herein, unless the writtenconsent of the m ajority of the Board of Directors shall have been firstobtained".


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1 9 18 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)It has been contended that either by virtue of the Constitution of the Stateof Washington or of a statute of that State, the Trail Smelter (a Canadian

corporation) was unable to acquire ownership or smoke easements overreal estate, in the State of W ashington, in any mann er. In regard to thisstatement, either as to the fact or as to the law, the Tribunal expresses noopinion and makes no ruling.The subject of fumigations and damage claimed to result from them wasfirst taken up officially by the Gov ernm ent of the Un ited States in Ju n e, 1927,in a communication from the Consul General of the United States at Ottawa,addressed to the Government of the Dominion of Canada.In December, 1927, the United States Government proposed to theCanadian Government that problems growing out of the operation of theSme lter at Trail should be referred to the Internatio nal Jo int Comm ission,Un ited States an d Ca nad a, for investigation and report, pursuan t to Arti-cle IX of the Convention of Ja nu ar y 11, 1909, between the United Statesan d Great Britain. Following an extensive correspondence between the twoGov ernments, they joined in a reference of the m atter to that Commissionund er date of August 7, 1928. It may be noted th at Article IX of the Con-vention of Ja nu ar y 11, 1909. provides tha t the high co ntracting parties m ightagree th at "any other question or matters of difference arising between theminvolving the rights, obligations or interests of either in relation to the other,or to the inhabitants of the other, along the common frontier between theUnited States and the Dominion of Canada shall be referred from time totime to the Intern ationa l Jo int Commission for examination and report. . . .Such reports shall not be regarded as decisions of the question or matters sosubmitted either on the facts or on the law, and shall not, in any way, havethe character of an arbitral award."The questions referred to the International Joint Commission were five innumber, the first two of which may be noted: First, the extent to whichproperty in the State of Washington has been damaged by fumes fromSm elter at T rail, B .C. ; second, the am ount of indem nity which wouldcompensate United States interests in the State of Washington for pastdamages.The International Joint Commission sat at Northport to take evidenceand to hear interested parties in October, 1928; in Washington, D.C., inApril, 1929; at Nelson in British Columbia in November. 1929; and finalsittings were held in W ashington, D .C , on Ja nu ary 22 and Februa ry 12,1930. Witnesses were hea rd ; reports of the investigations made by scien-tists were put in evidence; counsel for both the United States and Canadawere heard, and briefs submitted; and the whole matter was taken underadvisement by the Com mission. O n Feb rua ry 28, 1931, the Re port of theCommission was signed and delivered to the proper au thorities. Th ereport was unanimous and need not be considered in detail.Paragraph 2 of the report, in part, reads as follows:

In view of the anticipated reduction in sulphur fumes discharged fromthe Smelter at Trail during the present year, as hereinafter referred to,the Commission therefore has deemed it advisable to determine theamount of indemnity that will compensate United States interests inrespect of such fumes, u p to and including the first day of Ja nu ar y, 1932.The Commission finds and determines that all past damages and alldamages u p to an d includ ing the first day of Ja nu ar y next, is the sumof $350,000. Said sum, however, shall not include any dam ageoccurring after January 1, 1932.


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 1 9In paragraph 4 of the report, the Commission recommended a methodof indemnifying persons in Washington State for damage which might be

caused by operations of the Tra il Smelter after the first of Ja nu ar y. 1932,as follows :Up on the com plaint of any persons claiming to have suffered dam ageby the operations of the company after the first of Ja nu ar y, 1932, it isrecommended by the Commission that in the event of any such claimnot being adjusted by the company within a reasonable time, the Gov-ernments of the United States and Canada shall determine the amountof such damage, if any, and the amount so fixed shall be paid by thecompany forthwith.

This recom mendation, app arently, did not comm end itself to the interestedparties. In any event, it does not appear th at any claims were ma de afterthe first of Ja nu ar y, 1932, as contem plated in para grap h 4 of the repo rt.In paragraph 5 of the report, ihe Commission recommended that theConsolidated Mining and Smelting Company of Canada, Limited, shouldproceed to erect and put in operation certain sulphuric acid units for thepurpose of reducing the amou nt of sulphur discharged from the stacks. Itappears, from the evidence in the present case, that the General Manager ofthe company had made certain representations before the Commission asto the intentions of the com pany in this respect. Th ere is a conflict oftestimony as to the exact scope of these representations, but it is unnecessarynow to consider the matter further, since, whatever they were, the companyproceeded after 1930 to make certain changes and additions. W ith theintention and purpose of lessening the sulphur contents in the smoke emis-sions at the stacks, the following installations (amongst others) have beenm ade in the plant since 1931 ; three 112 tons sulphuric acid plants in 1931 ;ammonia and ammonium sulphate plant in 1931; two units for reductionand absorption of sulphur in the zinc smelter, in 1936 and 1937, and anabsorption plant for gases from the lead roasters in Ju ne , 1937. In ad ditio n,in an attempt to lessen injurious fumigations, a new system of control overthe emission of fumes durin g the crop-growing season has been in operation,partic ularly since May , 1934. It is to be noted that th e chief sulphu rcontents are in the gases from the lead smelter, but that there is still a certainam ou nt of sulphur content in the fumes from the zinc smelter. As a resultof the above, as well as of depressed business conditions, the tons of sulphuremitted into the air from the plants fell from about 10,000 tons per monthin 1930 to about 7,200 tons in 1931, and to 3,400 tons in 1932. Th e emissionof sulphur rose in 1933 to 4,000 tons, and in 1934 to nearly 6,300 tons,an d in 1935 to 6,800 tons. In 1936, it fell to 5,600 tons; and in Januaryto Ju ly , 1937 inclusive, it was 4,750 tons.

Tw o years after the signing of the Interna tiona l Jo int Comm ission'sReport of February 28, 1931, the United States Government on February 17,1933, made representations to the Canadian Government that existingconditions were entirely unsatisfactory and that damage was still occurring,and diplomatic negotiations were renewed. Correspondence was exchangedbetween the two countries, and although that correspondence has itsimportance, it is sufficient here to say, that it resulted in the signing of thepresent Convention.Consideration of the terms of that Convention is given more in detail inthe later parts of the Tribunal's decision.


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1 9 2 0 U.S.A./CAN ADA (TRAIL SMELTER ARBITRATION)P A R T T W O .

The first question unde r A rticle II I of the Convention which the Trib un alis required to decide is as follows:(1) Whether damage caused by the Trail Smelter in the State ofW ashington has occurred since the first day of Ja nu ar y, 1932, and , ifso, what indemnity should be paid therefor.

In the determination of the first part of this question, the Tribunal hasbeen obliged to consider three points, viz-, the existence of injury, the cause ofthe injury, and the damage due to the injury.The Tribunal has interpreted the word "occurred" as applicable todam age caused p rior to Ja nuar y 1, 1932, in so far as the effect of the injurymade itself felt after that date . Th e words "T rai l Sme lter" are interpre tedas meaning the Consolidated Mining and Smelting Company of Canada,Limited, its successors and assigns.In considering the second part of the question as to indemnity, the Tri-bunal has been mindful at all times of the principle of law which is set forthby the United States courts in dealing with cognate questions, particularlyby the United States Supreme Court in Story Parchment Company v.Paterson Parchment Paper Company (1931), 282 U. S. 555 as follows:"Where the tort itself is of such a nature as to preclude the ascertainmentof the amount of damages with certainty, it would be a perversion offundam ental principles of justice to deny all relief to the injured person,and thereby relieve the wrongdoer from making any amend for his acts.In such case, while the damages may not be determined by mere specu-lation or guess, it will be enough if the evidence show the exten t of thedam ages as a matte r of just and reasonable inference, although the resultbe only appr ox im ate ." (See also the decision of the Supreme Co urt ofM ichigan in Allison v. Chandler, 11 Michigan 542, quoted with approvalby the United States Supreme Court, as follows: "But shall the injuredparty in an action of tort, which may happen to furnish no element ofcertainty, be allowed to recover no damages (or merely nominal), becausehe cannot show the exact amount with certainty, though he is ready toshow, to the satisfaction of the jury, that he has suffered large damages bythe injury? Certainty, it is true, would thus be attained; but it would be thecertainty of injustice. . . . Jur ies are allowed to act upo n prob able andinferential, as well as direct and positive proof.")The Tribunal has first considered the items of indemnity claimed by theUn ited States in its S tatemen t (p. 52) "on accoun t of dam age occurringsin ce janu ar y 1, 1932, covering: (a) Damages in respect of cleared land andimprovements thereon; (b) Damages in respect of uncleared land andimprovements thereon; (c) Damages in respect of livestock ; (d) Damagesin respect of prop erty in the town of N ort hp ort; (g) Damages in respectof business enterprises".With respect to Item (a) and to Item (b). viz-, "Damages in respect ofcleared land and improvements thereon", and "Damages in respect ofuncleared land and improvements thereon", the Tribunal has reached theconclusion that dam age du e to fumigations has been proved to have occurredsin ce jan ua ry 1, 1932, and to the extent set forth hereafter.Since the Tribunal has concluded that, on all the evidence, the existenceof injury has been proved, it becomes necessary to consider next the cause ofinjury . Th is ques tion resolves itself into two partsfirst, the actu al caus-


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U.S.A./CANAD A (TRAIL SMELTER ARBITRATION) 1 9 2 1ing factor, and second, the manner in which the causing factor has operated.With reference to causation, the Tribunal desires to make the followingpreliminary general observations, as to some of the evidence producedbefore it.(1) Th e very satisfactory data from the autom atic sulphur dioxide record-ers installed by each of the Governments, covering large portions of eachyear from 1931 to 1937, have been of great value in this controversy. Theserecords have thrown much light upon the nature, the durations, and theconcentrations of the fumigations involved; and they will prove of scientificvalue in any future controversy which may arise on the subject of fumiga-tions.(2) The experiments conducted by the United States at Wenatchee inthe State of Washington and by Canada at Summerland in British Columbia,and the experiments conducted by scientists elsewhere, the results of whichhave been testified to at length before the Tribunal, have been of value withrespect to the effects of sulphur dioxide fumigations on plant life and on theyield of crops. While the Can adian exp eriments were more extensive thanthe American, and were carried out under more satisfactory conditions, theTrib un al feels that the nu m ber of experiments was still too limited to wa rran tin all cases so positive conclusions as witnesses were inclined to draw fromthem; and on the question of the effect of fumigations on the yield of crops,it seems probable that more extensive experimentation would have beendesirable, especially since, while the total num ber of experiments was large,the number devoted to establishing each type of result was in most casesrath er small. Moreover, conditions in experimen tal fumigation plots canrarely exactly reproduce conditions in the field; and there was some evidencethat injury occurred on various occasions to plant life in the field, underdurations and degrees of concentration which never produced injury toplant life in the experimental plots.(3) Valuable evidence as to the actual condition of crops in the field wasgiven by experts on both sides, and by certain non-expert witnesses. Unfor-tunately, such field observations were not made continuously in any cropseason or in all parts of the area of probable dam ag e; an d, even m ore unfor-tunately, they were not made simultaneously by the experts for the twocountries, who acted separately and without comparing their conclusionswith each other contemporaneously.(4) The effects of sulphur dioxide fumigations upon the forest trees,especially upon the conifers, were testified to at great length by able experts,and their studies in the field and in the experimental plots, with referenceto mortality, deterioration, retardation of ring growth and shoot growth,sulphur content of needles, production of cones and reproduction in general,have been of great va lue. As is usual in this type of case, though the poorcondition of the trees was not controverted, experts were in disagreement asto the causewitnesses for the United States generally finding the principalcause of injury to be sulphur dioxide fumigations, and witnesses for Canadagenerally attributing the injury principally to ravages of insects, diseases,winter and summer droughts, unwise methods of logging, and forest andground fires. It is possible that each side laid somewhat too great em phasison the causes for which it contended.

(5) Evidence was produced by both sides as to experimental tests of thesulp hur contents of the soils and of the waters in the area . These tests,however, were, for the most part, too limited in number and in location toafford a satisfactory basis from w hich to draw abso lutely positive conclusions.


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19 22 U.S.A./CANADA (TRA IL SMELTER ARBITRATION)In general, it may be said that the witnesses expressed contrary views andarrived at opposite conclusions, on most of the questions relating to cause of

injury.Th e Trib un al is of opinion tha t the witnesses were completely honest andsincere in their views and that the expert witnesses arrived at their conclu-sions as the integ ral result of their high techn ical skill. At the same time,it is apparent that remarks are very pertinent, such as were made by JudgeJohnson in the United States District Court (Anderson v. American Smelt-ing & Refining Co., 265 Federal Reporter 928) in 1919:Plaintiff's witnesses give it as their opinion and best jud gm ent tha tSO 2 was the cause of the injuries appearing upon the plants in thefield ; defendants' witnesses in like m ann er express the o pinion and giveit as their best jud gm ent tha t the injury observed was caused by some-

thing else other than SO 2. It must not be overlooked tha t witnesseswho give opinion evidence are sometimes unconsciously influencedby their environment, and their evidence colored, if not determined,by their point of view. Th e weight to be given to such evidence mustbe determined in the light of the knowledge, the training, the power ofobservation and analysis, and in general the mental equipment, of eachwitness, assuming, as I do, that the witnesses of the respective partieswere honest and intended to testify to the truth as they perceivedit. . . . Th e expert witnesses called by plaintiffs, who made a surveyof the affected area, made valuable observations; but seem to haveassumed as a basis for the ir conclusions that leaf markings hav ing theappearance of SO 2 injury were in fact SO 2 injuryan unwarrantedgeneralization. . . . It is quite evident that the testimony of witnesseswhose mental attitude is to account for every injury as produced bysome other cause is no more convincing than the testimony of witnesseswho attribute every injury similar in appearance to SO 2 injury toSO 2 as the sole and only cause. Th e exp ert witnesses of defend antsmanifested the same general mental attitude; that is to say, they wereable to find a sufficient cause operating in any particu lar case other thanSO 2, and therefore gave it as their opinion that such other cause wasthe real cause of the injury, or markings observed. Th e real value Ifind in the testimony of these opinion witnesses of the parties lies intheir description of appearances and statement of the surroundingcircumstances, rath er than in their ultima te expressed opinions. Ihave no doubt of the accuracy of the experiments made by the expertand scientific witnesses called by the parties.

On the basis of the evidence, the United States contended that damagehad been caused by the emission of sulphur dioxide fumes at the TrailSmelter in British Columbia, which fumes, proceeding down the valley ofthe Columbia River and otherwise, entered the United States. Th eDominion of Canada contended that even if such fumes had entered theUn ited States, they had caused no dam age after Ja nu ar y 1, 1932. T hewitnesses for both Governments appeared to be definitely of the opinionthat the gas was carried from the Smelter by means of surface winds, andthey based their views on this theory of the mechanism of gas distribution.Th e Trib un al finds itself unab le to accept this theory. It has, therefore,looked for a more probable theory, and has adopted the following as per-mitting a more adequate correlation and interpretation of the facts whichhave been placed before it.


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 2 3It app ears from a careful study an d com parison of recorder d ata furnishedby the two Governments, that on numerous occasions fumigations occur

practically simultaneously at points down the valley many miles apartthis being especially the fact during the growing season from April to Octo-ber. It also app ears from th e da ta furnished by the different recorders,that the rate of gas attenuation down the river does not show a constanttrend, but is more rapid in the first few miles below the boundary and moregrad ual further down the river. Th e Trib un al finds it impossible satis-factorily to account for the abo\e conditions, on the basis of the theorypresented to it. Th e Tr ibun al finds it further difficult to explain the timesand dura tions of the fumigations on the basis of any prob able surface-windconditions.The Tribunal is of opinion that the gases emerging from the stacks of theTrail Smelter find their way into (he upper air currents, and are carried bythese currents in a fairly continuous stream down the valley so long as theprevailing wind at that level is in that direction. Th e uppe r air conditionsat North port, as stated by the Un ited S tates Wea ther Bureau in 1929 (quotedin C anadian Docu men t A 1, page 9) are as follows :

The 5 a.m. balloon runs show the prevailing direction, since theWeather Bureau was established in Northport, to be northeast to analtitude of 600 metres above Ihe surface. Th e average velocity, up to600 metres level, is from 2 to 5 miles per ho ur. Above the 600 metreslevel the prevailing direction is southwest an d g radu ally shifts into thewest-southwest and west. Th e av erage velocities gradua lly increasefrom 5 miles per hour to about 30 miles per hour at the highest eleva-tion, about 700 metres.

It thus appears that the velocity and persistence of the upper air currentsis greater th an th at of the surface winds. Th e Tribu na l is of opinion thatthe fumigations which occur at various points along the valley are causedby the m ixing with the surface atmosp here of this up per air stream, of whichthe height has yet to be ascertained more fully. This mixing follows well-recognized meteorological laws and is controlled mainly bv two factors ofmajor imp ortance. These ar e: (a) differences in tem peratu re between theair near the surface and that at higher levelsin other words, the tempera-ture gradient of the atmosphere of the region; and (b) differences in the velo-city of the upper air currents and of those near the ground.A careful study of the time, duration, and intensity of the fumigationsrecorded at the various stations down the valley reveals a number of strikingand significant facts. Th e first of these is the coincidence in point of timeof the fumigations. The most frequent fumigations in the late spring, sum-mer, and early autumn are diurnal, and occur during the early morninghours. These usually are of short dura tion. A characteristic curve expres-sing graphically this type of fumigation, rises rapidly to a maximum andthen falls less rapidly but fairly sharply to a concentration below the sensiti-vity of the recorder. Th e dom inant influence here is evidently the heatingaction of the rising sun on the atmosphe re at the surface of the earth. Thisgives rise to temperature differences which may and often do lead to amixing of the gas-carrying atmosph ere with that near the surface. W henthis occurs with sufficient intensity, a fumigation is recorded at all stationsat which the sulphur dioxide reaches, a concentration that is not too low to bedete rmined by the recorder. Obviously this effect of the rising sun may be


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1 9 2 4 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)different on the east and the west side of the valley, but the possible bearingof this upon fumigations in the valley must await further study.

Another type of fumigation occurs with especial frequency during thewinter mon ths. These fumigations are not so definitely diurn al in charac terand are usually of longer du ration . Th e Trib un al is of the opinion thatthese are due to the existence for a considerab le period of a sufficient velocityof the gas-carrying air current to cause a mixing of this with the surface at-mosphere . W hethe r or not this mixing is of sufficient ex tent to prod uce afumigation will depend upon the rate at which the surface air is diluted bysurface winds which serve to bring in air from outside the contaminatedarea. Th e fact that fumigations of this type are more common du ring thenight, when the surface winds often subside completely, bears out this opin-ion. A fumigation with a lower velocity of the gas-carrying air curren twould then be possible.The conclusions above together with a detailed study of the intensity ofthe fumigations at the various stations from Columbia Gardens down thevalley, have led to deductions in regard to the rate of attenuation of concen-tration of sulphur dioxide with increasing distance from the Smelter whichseem to be in accord both with the known facts and the present theory. Th econclusion of the Tribunal on this phase of the question is that the concen-tration of sulphur d ioxide falls off very rapid ly from Trail to a point abo ut16 miles dow nstream from the Sm elter, or 6 miles from the bo un dary line,measured by the general course of the river; and that at distances beyondthis point, the concentration of sulphur dioxide is lower and falls off moregradually and less rapidly.The attention of the Tribunal has been called to the fact that fumigations

in the area of probable damage sometimes occur during rainy weather orothe r periods of high atmospheric hu midity. It is possible that this is mo rethan a mere coincidence and that such w eather conditions are. in general,more favorable to a fumigation, but the Tribunal is not prepared at presentto offer an opinion on this subjec t.The above conclusions have a bearing both upon the cause and upon thedegree of damage as well as upon the area of probable damage.The Tribunal will now proceed to consider the different classes of damageto cleared and to uncleared land.(1) With regard to cleared land used for crops, the Tribunal has foundthat damage through reduction in crop yield due to fumigation has occurredin varying degrees during each of the years, 1932 to 1936; and it has foundno proof of damage in the year 1937.It has found that damage has been confined to an area which differedfrom year to year but which did not (with the possible exception of a verysmall number of farms in particularly unfavorable locations) exceed in theyear of most extensive damage the following limits: the two precincts ofBoundary and Northport, with the possible exclusion of some propertieslocated at the eastern end of Boun dary P recinct and at the western end ofNorthport Precinct; those parts of Cummins and Doyle Precincts on or closeto the benches of the river; the part of M arble Precinct, n orth of the sou thernlimit of Sections 22, 23 and 24 of T. 39, R. 39, and the part of Flat CreekPrecinct, located on or close to the benches of the river (all precints beingas defined by the United States Census of Agriculture of 1935).The properties owned by individual farmers alleged by the United Statesto have suffered damage are divided by the United States in its itemizedschedule of damages, into three classes: (a) properties of "farmers residing


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 2 5on their farm s"; (b) properties of''farmers who do not resideon their farm s" ;(ab) prop erties of "farmers w ho'were driven from their farm s"; (c) propertiesof large owners of land . Th e Tribu nal has not adopted this division.The Tribunal has adopted as the measure of indemnity to be applied onaccount of damage in respect of cleared land used for crops, the measure ofdamage which the American courts apply in cases of nuisance or trespass ofthe type here involved, viz-, the am ount of reduction in the value of use or ren-tal value of the land caused by the fumigations. In the case of farm lan d,such reduction in the value of the use is, in general, the am oun t of the reduc-tion of the crop yield arising from injury to crops, less cost of marketing thesame, the latter factor being under the circumstances of this case of negligibleimportance. (See Ralston v. United Verde Copper Co., 37 Federal Re-porte r 2d, 180, and 46 Fede ral Repo rter 2d, 1.) Failure of farmers to in-crease their seeded land in proportion to such increase in other localities,may also be taken into consideration.T he difference between p robab le yield in the absence of any fumigationand actual crop yield, varying as it does from year to year and from place toplace, is necessarily a somewhat uncertain amount, incapable of absoluteproof; and the Tribunal has been obliged to base its estimate of damagelargely on the fumigation records, meteorological data, statistical data as tocrop yields inside and outside the area of proba ble dam age, and o ther Censusrecords.As regards the problems arising out of abandonment of properties by theirowners, it is to be noted that pracrically all of such properties, listed in thequestionnaire sent out by the former Agent for the United States,M r. Metzger, appea r to have been aband oned p rior to the year 1932. How -ever, in order to deal both w ith this problem and with the problem arising outof failure of farmers to increase their seeded land, the Tribunal, not having toadjudicate on individual claims, estimated, on the basis of the statisticaldata available, the average acreage on which it is reasonable to say thatcrops would have been seeded and harvested during the period under consi-deration but for the fumigations.As regards the special category of cleared lands used for orchards, theTri bu na l is of opinion th at no dam age to orchards by sulph ur dioxide fumiga-tion within the damaged area during the years in question has been proved.In addition to indemnity which may be awarded for damage throughreduction in the value of the use of cleared land measured by decrease incrop yield, it may be contended that special damage has occurred for whichindemnity should be awarded by reason of impairment of the soil contentsthrough increased acidity caused by sulphur dioxide fumigations actingdirectly on the soil or indirectly through increased sulphur content of thestreams an d other waters. Evidence has been given in support of this con-tention. Th e Trib una l is of opinion that such injury to the soil up to thisda te, due to increased acidity an d affecting harmfully the production of cropsor otherwise, has not been provedwith one exception, as follows: Thereis a small area of farming property adjacent to the boundary, west of theriver, that was injured by serious increase of acidity of soil due to fumiga-tions. Such injury, though caused, in pa rt, prior to Ja nu ar y 1, 1932, mayhave produced a continuing condition which cannot be considered as a lossfor a limited timein other words, in this respect the nuisance may be con-sidered to have a more permanent effect, in which case, under Americanlaw (Sedgwick on Damages 9th Ed. (1920) Sections 932, 947), the measure ofdamage was not the mere reduction in the value of the use of the land but

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19 26 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)the reduction in the value of the land itself. Th e Tribu nal is of opinion thatsuch injury to the soil itself can be cured by artificial means , and it h asawarded indemnity with this fact in view on the basis of the data available.In addition to indemnity which may be awarded for damage throughreduction in the value of the use of cleared land measured by decrease incrop yield, the Tribunal, having in mind, within the area as determinedabove, a group of about forty farms in the vicinity of the boundary line, hasawarded indemnity for special damage for reduction in value of the use orrental value by reason of the location of the farmers in respect to the fumiga-tions. (See Baltimore and Potom ac R. R. v. Fifth Baptist Church (1883),108 U.S. 317.)Th e Tr ibu na l is of opinion tha t there is no justification, unde r doctrinesof American law, for assessing damages to improvements separately fromthe land in the m ann er contended for by the Un ited States. Any injury toimprovem ents (other than physical injury) is to be compensated in the awardof indemnity for general reduction in the value of the use or rental value ofthe property.There is a contention, however, that special damage has been sustainedby some owners of improvements on cleared land, in the way of rust anddestruction of m etal work. Th ere was some slight evidence of such dam ag e,and the Tribunal has included indemnity therefor in its final award; butsince there is an entire absence of any evidence as to the extent or monetaryam oun t of such injury, the indem nity canno t be considered as mo re than anominal amount for each of such owners.(2) With respect to damage to cleared land not used for crops and to alluncleared (other than uncleared land used for timber), the Tribunal hasadopted as the measure of indemnity, the measure of damages applied byAmerican courts, viz-, the amount of reduction in the value of the use orrental value of the land. Th e Tri bu na l is of opinion that th e basis of esti-mate of damages contended for by the United States, viz-, applying to thevalue of uncleared land a ratio of loss measured by the reduced crop yieldon cleared land, has no sanction in any decisions of American courts.(A) As regards these lands in their use as pasture lands, the Tribunal isof opinion that there is no evidence of any marked susceptibility of wildgrasses to fumigations, and very little evidence to prove the respectiveamounts of uncleared land devoted to wild grazing grass and barren orshrub land, or to prove the value thereof, which would be necessary in orderto estimate the value of the reduction of the use of such land . Th e T ribu na l,however, has awarded a small indemnity for damage to about 200 acresof such lands in the immediate neighborhood of the boundary.It has been contended that the death of trees and shrubs due to fumiga-tion has had an injurious effect on the water storage capacity of the soil andhas even created some soil erosion. Th e Trib un al is of opinion tha t whilethere may have been some erosion of soil and impairment of water storagecapacity in a limited area near the boundary, it is impossible to determinewhether such damage has been due to fires or to mortality of trees andshrubs caused by fumigation.(B) As regards uncleared land in its use as timberland, the Tribunal hasfound that damage due to fumigation has occurred to trees during the years1932 to 1937 inclusive, in varying degrees, over areas varying not only fromyear to year bu t also from species to species. It has not seemed feasible togive a determination of the geographical extent of the damage except in sofar as it may be stated broadly, that a territory coinciding in extent with the


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 2 7Bayle cruises (hereinafter described) may be considered as an average area,although the contours of the actually damaged area do not coincide for anygiven species in any given year w ith that area and the intensity of the dam agein a given year and for a given species varies, of course, greatly, accordingto location.In comparing the area covered by the Bayle cruises with the Hedgcockmaps of injury to conifers for the years under consideration, the Tribunalis of opinion th at damage nea r the bo unda ry line has occurred in a somewhatbroader area than th at covered by the Bayle cruises, but tha t on the otherha nd , injury, except to larch in 1936, seems to have been confined belowMarble to the immediate vicinity of the river.It is evident th at for m any years prior to Ja nu ar y 1, 1932, mu ch of theforests in the area included in the present Northport and Boundary Precinctshad been in a poor condition. West and east of the Colum bia River, therehad been the scene of a number of serious fires; and the operations of theNorthport Smelting and Refining Company and its predecessor from 1898to 1901, from 1901 to 1908, and from 1916 to 1921, had und oub tedly had aneffect, as is apparent from the decisions in suits in the courts of the State ofWashington on claims for damages from fumigations in this area 1. It is un -controverted that heavy fumigations from the Trail Smelter which destroyedand injured trees occu rred in 1930 and 1931 ; and there were also serious fumi-gations in earlier years. In the Ca nad ian Do cument A 1, termed " T heDeans' R epo rt", being a report made to the International Join t Commissionin September, 1929, it is stated (pp. 29, 31):

Since a cruise of the timber in the Northport area has not been madeby a forest engineer of either Government, this report does not makeany recomm endations for settlements of timber dama ge. How ever,a brief statement as to the timber situation is submitted.Present condition. Practically the entire region was covered withtimber w hen it was first settled. Probab ly 90 per cent of the mer-chantable timber has now been removed. Th e timber on about one-third of the area has been cut only in part, that is to say only the morevaluable species have been logged, and on a large part of the rest of thearea that has been cut-over are stands too small to cut at time oflogging.These so-called residual stands, together with the remaining virgintimber, make up the timber resources of the Northport area at thepresent tim e. Heavy toll of these has been taken this season by twolarge forest fires still smouldering as this report is being written. . . .Government forest pathologist'; are working to determine the zone ofeconomic injury to timber, but their task, a difficult one at best, is incom-plete. Mu ch additional data must be collected and after that all mustbe compiled and analyzed, hence no attempt is made to submit a mapwith this repo rt delimiting the zone of injury to forest trees. Admit-tedly, however, serious damage to timber has already taken place andreproduction is impaired.1 See Henry VV. Sterrett v. Northport Smelting and Refining Co. (1902), 30Washington Reports 164; Edwin J. Rowe v. Northport Smelting and Refining

Co. (1904), 35 Washington Reports 101 ; Charles N. Park v. Northport Smeltingand Refining Co. (1907), 47 Washington Reports 597; John O. Johnson v.Northport Smelting and Refining Co. (1908), 50 Washington Reports 507.These cases were not cited by counsel for either side.


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1 9 2 8 U.S.A./cANAD A (TRAIL SMELTER ARBITRATION)"The Deans' Report" further mentioned a cruise of timber made by theConsolidated Mining and Smelting Co., in 1927 and 1928, "by a forest

engineer from British Columbia", and that "it is our opinion that the timberestimate and evaluation are qu ite satisfactory. Howev er, before settlementsare made for such smoke damage, the work should be checked by a forestengineer, preferably of the American Government since it was first done bya C ana dian . . . . It is believed, however, tha t a satisfactory check can bema de by one man and an assistant in abou t three mo nths. . . . Th e checkcruise should be made not later than the summer of 1930."It is to be further noted that in the official document of the State of Wash-ington enti t led Forest Statistics, Stevens County, Washington, Forest Survey R eleaseM o. 5, A June, 1937. Progress Release, there app ears a m ap ent i t led Forest Survey,Stevens County, Washington, 1935, on which four types of forest lands aredepicted by varied colorings and linings, and most of the lands in the areanow in question are described as"Principally Non-Restocked Old Burnsand Cu t-Overs; Rocky and Subalpine Areas," and "P rincipally Imm atureForestRecent Burns and C ut-O vers ". And these terms are defined asfollows (page 23) : "W ood land that portion of the forest land neither imm e-diately or potentially productive of comm ercial timb er. Included in thisclassification are: subalpinestands above the altitude range of merchant-ability; rocky, non-commercialarea too steep, sterile, or rocky to producem erch antab le tim be r." This description of timber as inaccessible, fromthe standpoint of logging, is further confirmed by the report made byG. J. Bayle (the forest engineer referred to in "The Deans' Report") ofcruises mad e by him prior to 1932 (Can adian Docu men t C 4, pp . 5,6) tothe effect that mu ch of the timber is "far away from tra nsp orta tion ", "o fvery little, if any, com mercial va lue ", "sale p rice would not bring the costof operating ", "scattered", "located on steep slopes". On page 9 of theForest Survey Release No. 5, above referred to, it is further sta ted :

As a consequence of the recent serious fires principally in the northportion of the county, 52,402 acres of timberland have recently beendeforested, m any of which are restocking. Also concentrated in thenorth end of the county are 77,650 deforested acres representingapproximately 6 per cent of the timberland area on which the possi-bilities of na tura l regeneration are slight. M uch of this latter deforesta-tion is thought to be the effect of alleged smelter fume damage.(a) Th e Trib una l has adopted as the measure of indemnity, to be appliedon account of damage in respect of uncleared land used for merchantabletimber, the measure of damages applied by American courts, viz-, tha t sincethe destruction of merchantable timber will generally impair the value of theland itself, the measure of damage should be the reduction in the value ofthe land itself due to such destruction of timber; but under the leading Ame-rican decisions, however, the value of the merchantable timber destroyed is,in general, deemed to be substantially the equivalent of the reduction in thevalue of the land (see Sedgwick on Damages, 9th Ed. 1920, Section 937a).The Tribunal is unable to accept the method contended for by the UnitedStates of estimating damage to uncleared timberland by applying to the

value of such land as stated by the farmers (after deducting value of thetimber) a ratio of loss measured by the reduced crop yield on cleared land.T he Tr ibu na l is of opinion, here as elsewhere in this decision, tha t, in accord-ance with American law, it is not restricted to the method proposed by the


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 19 2 9United States in the determination of amount of damages, so long as itsfindings remain within the amount of the claim presented to it.

As. in estimating d am age to timberland which occurred since Ja nu ar y 1,1932, it was essential to establish the amount of timber in existence onJanuary 1, 1932, an unnecessarily difficult task has been placed upon theTribunal, owing to the fact that ihe United States did not make a timbercruise in 1930 (as recommended by " Th e Deans' Re po rt") ; and neither theUnited States nor the Dominion of Canada caused any timber cruise to bema de as of Ja nu ar y 1. 1932. Th e cruises by witnesses supp orting the claimof the United States in respect of lands owned by t!ie State of Washingtonwere m ade in 1927-1928 and in 1937. Th e cruises by Bay le (a witness forthe Dominion of Canada) were made, partially in 1927-1928 and partiallyin 1936 and 1937. The affidavits of landowners filed by United Statesclaimants in 1929 contain only figures for a d ate prior to such filing. Sincethe Bayle cruise of 1927-1928 appears to be the most detailed and compre-hensive evidence of timbe r in the a rea of prob able dam age , the Tri bu na lhas used it as a basis for estimate of the am ou nt and value of timber existingJa nu ar y 1, 1932, after m aking du e allowance for the heavy d estruction oftimber by fire, fumigation, insects, and otherwise, which occurred betweenthe m aking of such cruise of 1927-1928 and Ja n ua ry 1, 1932, and after mak ingallowance for trees which became of me rchan table size between said dates.The Tribunal has also used the Bayle cruises of 1936 and 1937 as a basis forestimates of the am oun t and value of timber existing on Ja n ua ry 1, 1932.

(b) W ith regard to dam age due 1o destruction and imp airment of growingtimber (not of merchantable size), the Tribunal has adopted the measure ofdamages applied by Am erican cou rts, viz-, the reduction in value of the landitself due to such destruction an d im pairm ent. Growing timberland has avalu e for firewood , fences, etc., as well as a value as a source of future me r-chantab le timb er. No evidence has been presented by the Un ited States asto the locations or as to the total amou nts of such growing tim ber existing onJan ua ry 1, 1932, or as to its distribu tion into types of conifersyellow p ine,Douglas fir, larch or other trees. While some destruction or im pairm ent,deterioration, and retardation of such growing timber has undoubtedlyoccurred since such date, it is impossible to estimate with any degree ofaccuracy the am ount of dam age. The Tribu nal has, however, taken suchdamage into consideration in awarding indemnity for damage to land con-taining growing timber.(c) With respect to dam age due to the alleged lack of repro duction, theTri bu na l has carefully considered the contentions presented. Th e conten-tion made by the United States that fumigation prevents germination ofseed is, in the opinion of the Trib un al, not sustained by the evidence. Al-thoug h the experiments w ere far from conclusive, Hed gcock's studies tendto show, on the co ntrary, tha t, while seedlings were injured after germ inationowing to drough t or to fumes, the actual g ermina tion did take place.With regard to the contention made by the United States of damage dueto failure of trees to prod uce seed as a result of fumigation, the Tr ibu na l isof opinion t ha t it is not proved tha t fumigation prevents trees from producingsufficient seeds, excep t in so far as the paren t-trees may be destroyed ordete riorated themselves. This view is confirmed by the Hedgcock studieson cone produc tion of yellow pine. Th ere is a rath er striking correlationbetween the percentage of good, fair, and poor trees found in the HedgcockCensus studies and the percentages of trees bearing a norm al am ount of cones,trees bearing few cones, and trees bearing no cones in the Hedgcock cone


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19 30 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)prod uction studies. In so far, however, as lack of cone production sinceJa nu ar y 1, 1932, is due to dea th or imp airme nt of the parent-trees occurringbefore that date, the Tribunal is of opinion that such failure of reproductionboth was caused and occurred prior to Ja nu ary 1, 1932, with one possibleexception as follows : From standard Am erican writings on forestry, it appearsthat seeds of Douglas fir and yellow pine rarely germinate more than oneyear after they are shed \ bu t if a tree was killed by fum igation in 1931,germina tion from its seeds migh t occur in 1932. It appe ars, however, tha tDouglas fir and yellow pine only produce a good crop of seeds once in anum ber of years. Hence, the Tr ibu na l concludes that the loss of possiblereproduction from seeds which might have been produced by trees destroyedby fumigation in 1931 is too specu lative a m atte r to justify any aw ard ofindemnity.It is fairly obvious from the evidence produced by both sides that thereis a general lack of reproduction of both yellow pine and Douglas fir over afairly large area, and this is certainly due to some extent to fumigations.But, with the data at hand, it is impossible to ascertain to what extent thislack of reproduc tion is due to fumigations or to other causes such as firesoccurring repeatedly in the same area or destruction by logging of the cone-bearing trees. It is further impossible to ascertain to what exten t lack ofreproduction due to fumigations can be traced to mortality or deteriorationof the parent-trees w hich occurred since the first of Ja nu ar y, 1932. It maybe stated, in general terms, that the loss of reproduction due to the forestbeing depleted will only become effective when the amount of these treesper acre falls below a certain minimum 2. But the da ta at hand do notenable the Tribu na l to say where an d to wh at extent a depletion below thisminimum occurred through fumigations in the years under consideration.An even approximate appraisal of the damage is further complicated by thefact that there is evidence of reproduction of lodgepole pine, cedar, andlarch, even close to the boundary and in the Columbia River Valley, atleast in some locations. This substitution m ay not be due entirely to fumiga-tions, as it appears from standard American works on conifers that repro-duction of yellow pine is often pa tch y; tha t wh en yellow pine is substantiallydestroyed in a given area, it is generally supplanted by an othe r species oftrees; and that lodgepole pine in particular has a tendency to invade andtake full possession of yellow pine territory wh en a fire has occurred . Whilethe other species are inferior, their reproduction is, nevertheless, a factorwhich has to be taken into account; but here again quantitative data areentirely lacking. It is further to be noted th at the amo unt of rainfall is animp ortan t factor in the reproduc tion of yellow pine, and tha t where the nor-mal annual rainfall is but little more than eighteen inches, yellow pine doesnot app ear to thrive. It appea rs in evidence tha t the ann ual precipitationat N orth po rt, in a period of fourteen years from 1923 to 1936, averag edslightly below seventeen inches. W ith all these considerations in mind, the

1 See "Life of Douglas Fir Seed in the Forest Floor", by Leo A. Isaac, JournalofForestry. Vol. 23 (1935), pp. 61-66; "The Pine Trees in the Rocky MountainRegion", by G. B. Sudworth, United States Department of Agriculture Bulletin(1917); "Timber Growing and Logging Practice in the Douglas Fir Region",by T. T . Munger and W. B. Greely, United States Department of AgricultureTechnical Bulletin (1927). As to yellow pine and rainfall, see "Western YellowPine in Oregon", by T. T. Munger, United States Department of AgricultureTechnical Bulletin (1917).2 Applied Silviculture in the United States, by R. H. Westveld (1935).


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U.S.A./CANADA (TRAIL SMELTER ARBITRATION) 1 9 3 1Tr ibu na l has, however, taken lack of reproduc tion into account to some extentin awarding indemnity for damage to uncleared land in use for timber.

O n the basis of the foregoing statemen ts as to dam age and as to indem nityfor damage with respect to cleared land and uncleared land, the Tribunalhas awarded with respect to damage to cleared land and to uncleared land(other than uncleared land used for timber), an indemnity of sixty-twothousand dollars ($62,000); and with respect to damage to unclearedlan d used for timb er an indemnity of sixteen thousand dollars ($16,000) being a total indem nity of seventy-eight thousan d dollars ($78,000).Such indemnity is for the period from January 1, 1932, to October 1, 1937.There remain for consideration three others items of damage claimed inthe United States Statement: (Item c) "Damages in respect of livestock";(Item d) "Damages in respect of property in the town of Northport";(Item g) "Damages in respect of business enterprises".(3) W ith regard to "dam ages in respect of livestock", claimed by theUnited States, the Tribunal is of opinion that the United States has failedto prove tha t the presence of fumes from the Tra il Sm elter has injured eitherthe livestock or the milk or wool prod uctivity of livestock since Ja nuar y 1,1932, through im paired qu ality of crop or grazing. So far as the injury tolivestock is due to reduced yield of crop or grazing, the injury to livestockis due to reduced yield of crop or grazing, the injury is compensated for inthe indemnity which is awarded herein for such reduction of yield.(4) W ith regard to "damages in respect of prope rty in the town of No rth-po rt" , the same principles of law ap ply to assessment of indem nity to ownersof urban land as apply to owners of farm and other cleared land, namely,that the measure of damage is the reduction in the value of the use or rentalvalue of the prop erty, due to fumigations. Th e Tribu nal is of opinion thatthere is no proof of damage to such urban property; that even if there weresuch damage, there is no proof of facts sufficient to enable the Tribunal toestimate the reduction in the value of the use or rental value of such prop-erty; and that it cannot adopt the method contended for by the United Statesof calculating damages to urban property.(5) With regard to "damages in respect of business enterprises", thecounsel for the Un ited States in his Answer and Argum ent (p. 412) stated:"The business men unquestionably have suffered loss of business and impair-ment of the value of good will because of the reduced economic status of the

residents of the dam aged ar ea ." Th e Tri bu na l is of opinion that dam age ofthis nature "due to reduced economic status" of residents in the area is tooindirect, remote, and uncertain to be appraised and not such for which anindem nity can be aw arded. None of the cases cited by counsel (pp . 412-423)sustain the proposition that indemnity can be obtained for an injuryto or reduction in a man's business due to inability of his customers orclients to buy, which inability or impoverishment is caused by a nuisance.Such d am age, even if proved, is too indirect and remote to become the basis,in law, for an aw ard of indem nity. Th e Tribu nal is also of opinion tha tif damage to business enterprises has occurred since January 1, 1932, theburden of proof that such damages was due to fumes from the Trail Smelterhas not been sustained and that an award of indemnity would be purelyspeculative.(6) The United States in its Statement (pp. 49-50) alleges the dischargeby the Tra il Sm elter, not only of "smoke, sulphurou s fumes, gases", bu t


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19 32 U.S.A./CANADA (TRAIL SMELTER ARBITRATION)also of "waste m aterials" , and says that "t he Trail Smelter disposes of slagin such a manner that it reaches the Columbia River and enters the UnitedStates in that stream", with the result that the "waters of the ColumbiaRiver in Stevens Co unty are injuriously affected", thereby. No evidencewas produced on which the Tribunal could base any findings as regardsdama ge, if any, of this nature. Th e Dominion of Can ada has contendedthat this item of damage was not within the meaning of the words "d am ageca

trail smelter

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