enjoined). And see Teel v. Rio Bravo Oil Co. (1907) 47 Tex. Civ. App. 153, 104 S. W. 420 (bill need not allege negligence). But see Belton v. Baylor Female College (1896) - Tex. Civ. App., 33 S. W. 680 (decree denied, pollution not proved); Farb v. Theis (1923) Tex. Civ. App. —, 250 S. W. 290 (temporary decree against proposed cemetery denied).

Utah. North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co. (1898) 16 Utah, 246, 40 L.R.A. 851, 67 Am. St. Rep. 607, 52 Pac. 168 (pollution of canal by seepage from above enjoined).

Vermont.

Canfield v. Andrew

(1882) 54 Vt. 1, 41 Am. Rep. 828 (pollution from sawdust enjoined); Lawrie v. Silsby (1904) 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106 (nonriparian farmers entitled to injunction). But see Jacobs v. Allard (1869) 42 Vt. 303, 1 Am. Rep. 331 (sawdust, decree denied).

Virginia. Shoffner v. Sutherland (1910) 111 Va. 298, 68 S. E. 996 (sawdust enjoined); McKinney v. Emery & H. College (1915) 117 Va. 763, 86 S. E. 115 (sewage enjoined). But see French v. Chapin-Sacks Mfg. Co. (1915) 118 Va. 117, 86 S. E. 842 (decree denied, insufficient proof).

Washington. - Aberdeen v. Lytle Logging & Mercantile Co. (1910) 58 Wash. 368, 108 Pac. 945 (hauling logs across creek enjoined). But see McEvoy v. Taylor (1909) 56 Wash. 357, 26 L.R.A. (N.S.) 222, 105 Pac. 851 (decree denied, watering of horses and cows reasonable).

Wisconsin. Middlestadt v. Waupaca Starch & Potato Co. (1896) 93 Wis. 1, 66 N. W. 713 (manufacturer enjoined); Meiners v. Frederick Miller Brewing Co. (1890) 78 Wis. 364, 10 L.R.A. 586, 47 N. W. 430 (brewery enjoined); Behnisch v. Cedarburg Dairy Co. (1923) 180 Wis. 34, 192 N. W. 447 (dairy waste enjoined). But see Greene v. Nunnemacher (1874) 36 Wis. 50 (improper joinder of defendants).

England. Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. 71 (pollution through canal enjoined); Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. 279, affirmed with variations in

(1867) L. R. 2 Ch. 478 (pollution from dyeworks enjoined); Clowes v. Staffordshire Potteries Waterworks Co (1872) L. R.. 8 Ch. 125 (from construction of reservoir enjoined); Cowan v. Buccleuch (1876) L. R. 2 App. Cas. 344 (parties properly joined); Blair v. Deakin (1887) 57 L. T. N. S. 522 (manufacturer enjoined); McIntyre Bros. v. McGavin [1893] A. C. 268 H. L. (increased pollution enjoined); Stollmeyer v. Petroleum Development Co. [1918] A. C. 498, note P. C. (pollution from discharge of oil enjoined); Hulley v. Silversprings Bleaching & Dyeing Co. [1922] 2 Ch. 268 (pollution from

bleachery enjoined). And see Lingwood v. Stowemarket Paper-Making Co. (1865) L. R. 1 Eq. 77 (incidental point as to form of decree).

But see Elmhirst v. Spencer (1849) 2 Macn. & G. 45, 42 Eng. Reprint, 18 (degree against bleachery dissolved, insufficient proof); Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303 (decree against manufacturer refused, damages adequate); Baxendale v. McMurray (1867) L. R. 2 Ch. 790 (decree denied, alleged increase not proved); Fletcher D. Bealey (1885) L. R. 28 Ch. Div. 688 (decree denied, threatened pollution from vat waste not imminent). See also Kirk v. Todd (1832) L. R. 21 Ch. Div. 484 C. A. (as to nonsurvival of bill after defendant's death). Ireland. Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1 (pollution from convent sewer enjoined); Wallace v. M'Carton [1917] Ir. R. 377 (pollution from sewage enjoined).

Scotland. See Downie v. Moray (1824) 3 Sc. Sess. Cas. 1st series, 158, and Young v. Bowie (1824) 3 Sc. Sess. Cas. 1st series, 307, as cited in 4 Scots' Dig. col. 391 (discharge of sewage temporarily enjoined, but see a later decision of the former case in (1825) 4 Sc. Sess. Cas. 1st series, 167, as cited in the same column); Dunn v. Hamilton (1838) 3 Shaw & M. 356, affirming (1837) 15 Sc. Sess. Cas. 1st series, 853, as cited in 4 Scots' Dig. col. 400 (dyework apparently enjoined); Montgomery & Fleming v. Findlay (1853) 15 Sc. Sess. Cas. 2d series, 853, as cited in 4 Scots' Dig.

col. 391 (sewage enjoined); Buccleuch v. Cowan (1866) 4 Sc. Sess. Cas. 3d series, 475, and in (1866) 5 Sc. Sess. Cas. 3d series, 214, as cited in col. 390 of the same Digest (bill against paper makers, later decision on other grounds in (1876) L. R. 2 App. Cas. (Eng.) 344, supra); Rigby v. Downie (1872) 10 Sc. Sess. Cas. 3rd series, 568, as cited in 4 Scots' Dig. col. 390 (manufacture apparently enjoined); Buccleuch v. Brown (1874) 1 Sc. Sess. Cas. 4th series, 1111, as cited in 2 Scots' Dig. 1873-1904, col. 2384 (paper makers enjoined); Moncreiffe v. Perth Police Comrs. (1886) 13 Sc. Sess. Cas. 4th series, 921, as cited in that Digest in the same column (nature of pollution not indicated); Seafield v. Kemp (1899) 1 Sc. Sess. Cas. 5th series, 402, as cited in 2 Scots' Dig. 1873-1904, col. 2383 (pollution from distillery apparently enjoined). But see Fleming v. Gemmill [1908] S. C. 240, cited in Scots' Dig. 1904-1914, col. 1132 (as having refused an injunction).

Canada.

Hunter v. Richards (1911) 26 Ont. L. Rep. 458, 5 D. L. R. 116, affirmed in (1913) 28 Ont. L. Rep. 267, 12 D. L. R. 503 (pollution from mill enjoined); Fisher & Son v. Doolittle & Wilcox (1912) 22 Ont. Week. Rep. 445, 3 Ont. Week. N. 1417, 5 D. L. R. 549 (pollution from quarry débris enjoined); Bright v. Niagara Racing Asso. (1921) 20 Ont. Week. N. 46 (pollution from sewage during race meet enjoined); St. Johns v. Barker (1906) 3 N. B. Eq. Rep. 358 (pollution from hotel sewage enjoined); Atty. Gen. v. Ewen (1895) 3 B. C. 468 (fish offal enjoined). But see, as denying injunctions, Swan v. Adams (1876) 23 Grant, Ch. (U. C.) 220; Weir v. Claude (1889) 16 Can. S. C. 575, affirming (1888) Montreal L. R. 4 Q. B. 197, which reversed (1886) Montreal L. R. 2 S. C. 326; and Atchison v. Stratford Gas Co. (1922) 22 Ont. Week. N. 147.

In Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, the chancellor laid down the proposition that, "if the deprivation of the use of the water by diversion constitutes such an irreparable injury as

will be restrained by injunction, the deprivation of its use, by so corrupting it as to render it unfit for use, is an equally irreparable injury, entitling the party injured to the like preventive remedy." He immediately qualified the above proposition, however, by stating that "to entitle the party to the remedy by injunction in cases of private nuisance, the right must be clear, and the injury must be such as from its nature is not susceptible of being adequately compensated for by damages, or such as from its long continuance may occasion a constantly recurring grievance which cannot be prevented otherwise than by injunction."

In Merrifield v. Lombard (1866) 13 Allen (Mass.) 16, 90 Am. Dec. 172, the court said: "It is conceded in the present case that, by the mode in which the defendant conducts his business, a large quantity of poisonous and corrosive substances is permitted to run into the water of the stream on which the plaintiff's and defendant's manufactories are both situated, which defiles and corrupts the water to such an extent that the machinery of the plaintiff is corroded and destroyed, and the use of the water for reasonable and proper purposes is impaired and prevented. We know of no rule or principle of law by which such a mode of appropriation of a running stream, in the absence of any proof of a paramount right or title, can be justified or excused as against a riparian owner of land on the same stream below. No fact appears in this case from which any right by grant, prescription, or adverse use is shown to exist, by virtue of which the defendant can claim to use the stream otherwise than as a riparian owner, entitled to the natural and ordinary rights and privileges which usually and legally attach and belong to the owner of land on the banks of a watercourse. It is clear, therefore, that he has been guilty of an infraction of the plaintif's rights. The right of the latter to equitable relief is clear and unquestionable. The acts of the defendant tend to create a nuisance of a con

tinuous and constantly accruing nature, for which an action of law can furnish no adequate relief."

In Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480, where damages had been awarded to a lower proprietor, "with the liberty to renew his application for an injunction when so advised," it was held that a perpetual injunction should have been issued. The court said: "A court of equity has jurisdiction and should grant a perpetual injunction, when it is established by a trial that the defendant has created a private nuisance to the serious injury of the plaintiff, where that nuisance is permanent in its character, so that the injury continues; where complete and ample remuneration cannot be awarded in damages; or where the court can see that, to obtain complete and ultimate redress at law, several suits may become necessary; or where the injury is otherwise irreparable. It is enough that it 'be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance, cr permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented but by injunction.' In this case it appears, clearly, that the acts of the defendants created and continued a nuisance. In its character it was a continuing nuisance, and it was intended to be and was permanent. It was of considerable pecuniary damage to the plaintiff, and prevented the use by him of the water of the stream, and consequently the use of his land, as he had been accustomed to, and had the right to use it.... It was clearly a case where there was no possibility at law of recovering, in any one, or even a dozen actions, the pecuniary damages which the plaintiff had sustained, and was likely to sustain, from its continuance; and, in my judgment, it was not a case where the actual damages, even for the time that was passed, could be or were accurately ascertained. . . It will never do to allow one party either to take possession of, or to pollute, the property of

another by casting offensive substances upon it, and in a manner to show that it is intended to continue it permanently, and then only allow the injured party the liberty to sue in a justice's court. It is the duty of the court, in such a case, to effectually protect him, and to restore him to what he has lost by the wrongful act or acts."

And the inadequacy of the remedy at law and the prevention of a multiplicity of suits were apparently relied upon, in enjoining the pollution in Strobel v. Kerr Sait Co. (1909) 164 N. Y. 303, 51 L.R.A. 587, 79 Am. St. Rep. 643, 58 N. E. 142, 21 Mor. Min. Rep. 38, reversing (1897) 24 App. Div. 626, 49 N. Y. Supp. 1144, reargument denied in (1900) 165 N. Y. 617, 59 N. E. 1131.

In holding that the city was entitled to an interlocutory injunction against the pollution of a stream by a manufacturing concern, by reason of its maintenance of privies and hogpens, the court in Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96, said: "Anything that renders the water less wholesome than when in its ordinary natural state, or which renders it offensive to taste or smell, or that is naturally calculated to excite disgust in those using the water for the ordinary purposes of life, will constitute a nuisance, and for the restraint of which a court of equity will interpose."

In granting a preliminary decree which enjoined a manufacturer from polluting a stream so as to work serious injury to another manufacturer, where lime and other impure substances were were discharged, which spoiled the plaintiff's product, and the defendant was unable to account for the pollution in any other way, the court in Jessup & M. Paper Co. v. Ford (1887) 6 Del. Ch. 52, 33 Atl. 618, said: "Where a complainant shows a reasonable and well-founded apprehension of immediate, threatened, and irreparable injury and loss, it is a duty of courts of equity, in cases within their jurisdiction, to restrain the commission of such injury and infliction of such loss. . . . Where the

danger threatened is of such a nature that it cannot easily be remedied in case of a refusal of relief, and the answer does not deny that the act charged is contemplated, an interlocutory injunction will be allowed, unless the equities of the bill are satisfactorily refuted by the defendant."

In restraining a lumber company from depositing refuse material in a river, where it clogged the machinery of a cotton mill, it was said in Lockwood Co. v. Lawrence (1885) 77 Me. 297, 52 Am. Rep. 763: “Nuisances and injuries affecting waters, including the obstruction, diversion, or pollution of streams, afford frequent ground for equitable interference, on the principle of restraining irreparable mischief. The jurisdiction of equity in this class of cases may be regarded as ancient and well established. Especially is this true when the acts complained of are of such a character that irreparable injur, will result to the complainant without such interference, or when adequate compensation for the injury arising therefrom may not be obtained at law, or, if continued, would lead to a multiplicity of suits. Whenever this is admitted, or established by proof, a court of equity may, by injunction, restrain the continuance of such acts."

And, in restraining the pollution of a river by a manufacturer, the court in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, adopted the statement of the court below in (1893; C. C.) 53 Fed. 970, that "where the right of a riparian proprietor to the use and enjoyment of the flow of a stream of pure and wholesome water, free from corruption and pollution, has been actually invaded, and such invasion is necessarily to be continuing, and to operate prospectively and indefinitely, and the extent of the injurious consequences is contingent and of doubtful pecuniary estimation, the writ of injunction is not only permissible, but it affords the only adequate and complete remedy."

In Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ.

App., 163 S. W. 1023, the proposition was thus stated: "Riparian rights are property, which will be protected by the courts. And to a riparian proprietor whose right to the use and enjoyment of the flow of a stream of pure and wholesome water free from pollution has been actually, or is about to be, invaded, injunctive relief will be granted, where such invasion, or threatened invasion, will be continuing, and the extent of the injurious consequences is contingent and of doubtful pecuniary extent."

In Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, it was stated as a general proposition that where parties had established at law their right to pure water, "and another person comes and erects works on the same stream above their works, and by his manufacturing process so fouls the water of the stream as seriously and continuously to obstruct the effective carrying on of their manufacture; and if the granting of an injunction will restore or tend to restore those parties to the position in which they previously stood, and in which they have a right to stand, and if the injury complained of is of such a nature that damages will not be an adequate compensation, that is, such a compensation as will in effect, though not in specie, place them in the position in which they previously stood; and if, moreover (for there are several conditions), they use due diligence in vindicating their rights, they have, in general, a right to come to a court of equity and say, 'Do not leave us to bring action after action for the purpose of recovering damages, but interfere with a strong hand, and prevent the continuance of the acts we complain of, in order that our legal right may be protected and preserved to us'"-the court adding that in such a case it must have regard not only to the "dry strict rights" of the parties, "but also to the surrounding circumstances, to to the rights or interests of other persons which may be more or less involved;" and explaining that it used the term "continuously" as meaning 'frequent

ly recurring" rather than "never ceasing."

In 4 Scots' Dig. cols. 390 and 391, it is stated that Buccleuch v. Cowan (1866) 5 Sc. Sess. Cas. 3d series, 214, held that where, in an action at the instance of proprietors of lands on the banks of a private stream against paper manufacturers, whose works were situated at different places on the banks of the stream, to have the defenders interdicted from polluting the stream, separate issues as against each of the defenders were sent to trial before the jury, the presiding judge properly ruled that it was "sufficient to entitle a pursuer to a verdict on any one of the issues, to prove that the river is polluted by the mills belonging to the defenders generally, to the effect of producing a nuisance to him, and that the defenders in that issue materially contribute to the production of the nuisance to him."

III. Particular consideration.

a. Continuance of injury indicated by that already suffered.

In most of the decisions cited above, of which the following may be regarded as typical instances, the decree was based upon proof that the plaintiff had already suffered an actual injury from defendant's pollution, the conditions thereby being such that it could reasonably be inferred that a continuance of the injury would necessarily follow unless enjoined. Incidental reference to other cases of this sort will be found in many of the subdivisions herein.

Thus, in Snow v. Williams (1879) 16 Hun (N. Y.) 368, a farm owner was held to be entitled to a decree enjoining the discharge into a creek of the surplus whey and other refuse from a cheese factory, where it rendered the water unfit for use, the court observing that it was apparent that the farm would be materially lessened in value if the nuisance were permitted to continue.

In Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, granting an injunction to restrain the pollution of water which was used in making ice for domestic 46 A.L.R.-2.

purposes, it was said that, when a corporation obtains a standing in court by reason of its having suffered special damage, although it can only maintain its suit for an injunction on that ground, still the court will grant relief, not solely because the nuisance is private, so far as the complainant is concerned, but because the relief will inure to the public benefit.

The proprietor of a flour mill was held in Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, to be entitled to enjoin, as a public nuisance, a butcher from materially contributing to the pollution of the former's mill race by discharging into it offal from his slaughterhouse, where the pollution had made the former's employees sick, necessitated the closing of the mill at times, and lessened the value of the mill.

A hospital was held to be entitled to enjoin the contamination by a sewer of a stream the water of which was apparently used for drinking, in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, where the court said that the evidence established the fact that the defendant was materially contributing to the pollution of the stream in a manner calculated to do serious injury to the inmates of the hospital, and seriously to injure the plaintiff itself.

A concern which had built houses and a sewer on its tract of land was enjoined from polluting the stream into which the sewer emptied, at the instance of a landowner through whose land the stream passed, in the reported case (CARETTI V. BRORING BLDG. Co. ante, 1), the court being satisfied that the pollution caused by the sewer added materially to that which had previously existed, and prevented the use of his property for bathing purposes and for the watering of geese and cattle.

And in holding that a similar concern should be enjoined from maintaining its sewerage system in such a way as to make a stream unfit for a lower landowner's horses and cows, the court said in Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120