Atl. 69, that it was established that, before the construction of such system, the stream was always clear, and that it was still so above the sewer outlet.

In Canfield v. Andrew (1882) 54 Vt. 1. 41 Am. Rep. 828, the discharge of waste from a sawmill into a stream was enjoined, where it was shown to have injured the owner of another mill by clogging up his machinery, the court declaring that no one was allowed to deposit any substance in a running stream that would pollute its waters to the injury of a riparian proprietor below.

In Bowen v. Wendt (1894) 103 Cal. 236, 37 Pac. 149, one specially injured by the pollution of a creek from a slaughterhouse, having shown the water to be unfit for domestic use and for his cattle, was held to have been properly granted an injunction, the court considering the pollution to be a public nuisance.

In holding to be warranted a decree enjoining a paper manufacturer from materially polluting a stream, where it was shown that the discharges caused offensive odors, impaired the water and vegetation, materially lessened the comfort and happiness of plaintiff and others, and diminished the value of his land, the court in Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, declared that the conditions constituted a nuisance, and that the damages were immeasurable by a pecuniary standard.

The owner of a mill who threw sawdust or pumice into a brook, with the result that the owner of a pond below was unable to harvest ice fit for domestic use, was held to have been properly enjoined in Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986. And a decree was held to be warranted which enjoined the defendant from discharging oil and refuse through a ravine into a lake, where it injured plaintiff principally by preventing him from letting fishing privileges, fish having been killed, and from selling the privilege of cutting ice, in Fischer v. Missouri P. R. Co.

(1909) 135 Mo. App. 37, 115 S. W. 477.

The owner of a farm was held in McKinney v. Emory & H. College (1915) 117 Va. 763, 86 S. E. 115, to be entitled to enjoin, as a nuisance, defendant's pollution of a stream by sewage, where it rendered the water unfit for the use of live stock and other domestic purposes, destroyed the value of a spring, and seriously affected the operations and value of the farm, besides being a menace to the health and comfort of plaintiff's family.

In Richmond Mfg. Co. v. Atlantic De Laine Co. (1871) 10 R. I. 106, 14 Am. Rep. 658, where one manufacturer enjoined another, who was about a mile upstream, from polluting a river, the court said that there was no doubt of its power to issue the injunction, and that a proper case was made out for doing it, since at least a considerable proportion of the pollution was shown to have been caused by the respondent. And in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, a manufacturer likewise enjoined another, the court again taking the same view.

A farmer was held to be entitled to enjoin the continued pollution of a stream by sewage from a convent in Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1.

Buccleuch v. Brown (1874) 1 Sc. Sess. Cas. 4th series, 1111, is stated in 2 Scots' Dig. 1873-1904, col. 2384, to have granted a perpetual interdict against paper makers who were discharging polluting matter into a stream.

b. Injury merely threatened.

Generally as to right to enjoin threatened or anticipated nuisance, see annotations in 7 A.L.R. 749, and 26 A.L.R. 937 [Nuisances, § 114].

As to the defense that actual damage has not been shown, or that plaintiff has made no use of the stream, see subd. VI. c, infra.

In addition to granting injunctive relief in cases where the plaintiff has shown that he has already actually

suffered an injury, the courts have likewise frequently enjoined an injury which was merely threatened, from a pollution which either already existed or appeared to be imminent.

Thus, in Atty. Gen. v. Steward (1869) 20 N. J. Eq. 415, where owners of houses were granted a preliminary injunction to enjoin the proposed discharge into a stream, upon a certain contingency, of blood from a slaughterhouse which was being erected in the neighborhood, the chancellor explained why the injunction, which was sought to cover also other alleged injuries, could not be allowed except as indicated, and said that, if the defendants discharged the blood from a hundred slaughtered hogs into the creek daily, it could not be otherwise than that it must corrupt and pollute the stream for most of the purposes for which it might be used by those whose lands bordered on it below, and that he thought it might so affect the stream as to make its waters offensive to houses in the neighborhood. And, in making the same decree perpetual in (1871) 21 N. J. Eq. 340, he expressly adhered to his former reasoning, adding that there was no proof that the blood would be so diluted as to be harmless.

In Harris v. Mackintosh (1882) 133 Mass. 228, the court said, as to an alleged pollution of a stream by a manufacturer, which it was claimed would prevent the building of a house on a lot, the cutting of ice, or the pasturing of cattle, that the alleged acts tended to create a nuisance of a continuous nature, for which an action at law could furnish no adequate relief.

The proposed underdraining of a cemetery into a stream was enjoined in Barrett v. Mt. Greenwood Cemetery Asso. (1896) 159 Ill. 385, 31 L.R.A. 109, 50 Am. St. Rep. 168, 42 N. E. 891, reversing (1895) 57 Ill. App. 401, upon a showing that it would make one complainant's ice unmarketable, and would spoil the water of other complainants for pasturage and farming purposes, all of the complainants' lands being within 4 miles of the place where the proposed drain

would empty into the brook. And in Sutton v. Findlay Cemetery Asso. (1915) 270 Ill. 11, L.R.A.1916B, 1135, 110 N. E. 315, Ann. Cas. 1917B, 559, such an underdraining, which had been constructed, was enjoined at the instance of an owner of grazing land.

Upon a showing that the continuance of a sewer would seriously affect the health of plaintiff and his family, that he would lose some of his tenants thereby, and that the defendant was insolvent, the former was held to be prima facie entitled to enjoin the emptying of the sewer into a stream, in Manning v. Webb (1911) 136 Ga. 881, 72 S. E. 401.

A lower riparian owner who had not actually used the water of the stream for any domestic purpose was held to be entitled to enjoin the pollution of such water by sewage, since he had the right to use the stream in its natural purity, in Mann v. Willey (1900) 51 App. Div. 169, 64 N. Y. Supp. 589, affirmed without opinion in (1901) 168 N. Y. 664, 61 N. E. 1131.

So far as plaintiffs' unoccupied land on a stream was concerned, in Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, the pollution coming down the stream to that point was enjoined, without any showing of actual damage, the court stating that, while it was true that plaintiffs were not at the moment making use of the water for any purpose, they had a right to the user, and "a right to interfere with anything that injures that right of user in such a manner as that, if not interrupted for twenty years, the person so injuring the right would acquire a title."

The view that, although no actual damage from the pollution of the stream from defendant's factory was shown, plaintiff was entitled to an injunction, upon the ground that, unless it should be stopped, the interference with his right to have the stream in its natural purity might grow into a right by prescription, was taken in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210, and

also upon a subsequent appeal in (1899) 42 App. Div. 409, 59 N. Y. Supp. 203, which was reversed on other grounds in (1901) 167 N. Y. 462, 60 N. E. 757.

And in Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468, the court Isaid that it could not doubt "that the plaintiff is entitled to an injunction to restrain the defendant from continuing to pollute the stream, in order to prevent it from gaining a prescriptive right, even though such pollution does not interfere with any use of the water which the plaintiff is now making."

A decree was held to be warranted in Mann v. Des Moines Water Co. (1913) 121 C. C. A. 220, 202 Fed. 862, which enjoined the threatened pollution of a water supply by the removal of sand from the bed of a stream, where the sand served the purpose of filtering the water which passed through it into galleries, it being shown by water analyses that the removal of the sand materially impaired the filtering process by permitting impurities to pass through.

a

In holding plaintiff entitled to a modified injunction to restrain threatened injury from pollution, the court, in Storm King Paper Co. v. Firth Carpet Co. (1917) 184 App. Div. 514, 172 N. Y. Supp. 33, considered that plaintiff had not shown that its product had been actually injured.

The Cwner of a house was held to be entitled to enjoin the proposed construction, by the owner of a sewage system, of a septic tank of certain dimensions on land near the house, upon showing that a creek would thereby be polluted, in Cardwell v. Austin (1914) Tex. Civ. App. 168 S. W. 385.

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And the owner of land bordering on a river where the tide ebbed and flowed was held to be entitled to enjoin the threatened removal of a sand bar therein, where its removal would have the effect of permitting the salt water to come up to his land and thus render the water unfit for drinking, grazing and farming, in Houston Transp. Co. v. San Jacinto Rice Co.

In enjoining the continuance of a dam which caused polluted water from sewers to accumulate in a creek, where it was disputed whether disease had already resulted, it was said in New Castle City v. Raney (1888) 6 Pa. Co. Ct. 87, that, since the pollution was known to be dangerous to public health and to be increasing in degree, a preventive remedy should be granted without waiting for an epidemic actually to occur.

The threatened pollution of a stream was enjoined in Rarick v. Smith (1896) 17 Pa. Co. Ct. 627, 5 Pa. Dist. R. 530, where it was shown that upon a former occasion, when defendant manufactured dynamite, the stream had become so polluted as to kill fish and vegetation, as well as to affect its value as water power by corroding machinery, and that defendant intended to resume his former operations in the same way.

In Fisher v. Doolittle (1912) 3 Ont. Week. N. 1417, 22 Ont. Week. Rep. 445, 5 D. L. R. 549, Meredith, J. A., said that even if there had been no appreciable damage from the pollution, the fact that the wrong might in time grow into a right would be an abundant reason for stopping the wrong.

And Seafield v. Kemp (1899) 1 Sc. Sess. Cas. 5th series, 402, is stated in 2 Scots' Dig. 1873-1904, col. 2384, to have held that a riparian proprietor with a right to salmon fishing could prevent the pollution of the stream higher up, where it did not directly affect the water ex adverso of his lands, but did nevertheless injure spawning beds up the river to the prejudice of his fishing.

But in Atty. Gen. v. Steward (1869) 20 N. J. Eq. 415, supra, it was said that whether an injury would result from erecting a slaughterhouse so near to vacant lots held for sale for building purposes, for which the law would give redress before any buildings were erected, where defendant proposed to wash refuse into a stream if it should be found impracticable to remove it otherwise, should be deter

mined at law, and that the injury was not such as called upon the equity court to interfere until the question had been determined at law, at least not by a preliminary injunction.

So, in refusing to grant an injunction to restrain a threatened pollution of a river, in Fletcher v. Bealey (1885) L. R. 28 Ch. Div. (Eng.) 688, Pearson, J., asserting that the action was admittedly brought not to obtain damages for a past injury, but to prevent that which was feared as a future injury, being what was technically a quia timet action, thus laid down the necessary ingredients of such an action: "There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action." It appeared that the defendant, an alkali manufacturer, was dumping "vat waste" upon land about a mile and a half up the river and adjacent to a canal, that in time a highly dangerous liquid would flow from the heap of such waste, which would damage plaintiff, a manufacturer of fine papers, if it should get into the river; it being shown, further, that some of the land at the river bank was likely to slip into the river, carrying the heap with it, and that the wall which held the canal up was likely to fall in such a way as to force the heap into the river, and that in fact it had broken in places. But, notwithstanding all this, and that it was impossible to filter pollution of this sort, the court, conceding that the risk was increasing, held that the evidence was not sufficient to justify an injunction, taking the view that in time science probably would

discover some means for rendering the liquid innocuous, and that meanwhile it could be left out of the river by some contrivances, such as tanks and pumps. And it was said that the danger was not imminent, since it must be some years before enough liquid would get into the river to injure plaintiff, and it could be discovered in time to obtain relief then; the court also considering that the danger from the slipping of the bank and breaking of the canal wall was slight.

So, it was declared that "apprehended danger is indeed a ground for issuing an injunction, but it must be apprehended upon a state of facts which shows it to be real and immediate," in Brookline v. Mackintosh (1882) 133 Mass. 215, holding that there was no such danger where, although the river from which the plaintiff town's water supply was obtained was polluted at defendant's factory, about 4,000 feet upstream from plaintiff's filtering gallery, the town did not take the water directly from the river, and such pollution was not shown to have any perceptible effect on the water at the filtration plant below. And, in refusing to grant an injunction, the court recognized the possibility that the water below might become polluted, in case the plaintiff should decide to pump directly from the river, observing, however, it had no intention of doing so; and also recognized that the possible pollution upstream might increase in proportion as the defendant's operations increased.

In reference to such a pollution as would amount to a nuisance, as distinguished from a pollution expressly denounced by statute, the court in Durham v. Eno Cotton Mills (1907) 144 N. C. 205, 11 L.R.A. (N.S.) 1163, 57 S. E. 465, said that, before an injunction would issue, the plaintiff "must make out a case, not of theoretical and possible, but of actual and real, injury present or certainly impending," and that it was well settled in that state that equity would not restrain a private nuisance that was merely dubious, possible, or contingent.

And as a ground for claiming an injunction, the plaintiff town in Brookline v. Mackintosh (Mass.) supra, unsuccessfully contended that it had taken by implication any right, prescriptive or otherwise, to foul the river in the exercise of a manufacture. The court held that such an implication was not warranted, since the penalties provided by the statute under which it took its water supply applied only to water actually taken. And it further said that it was settled that "when a person is asserting a right which at the time does no damage, but which may operate by long continuance to destroy or diminish the right of the plaintiff, even if that right is not then exercised by the plaintiff and there is no present intention of exercising it, he will be restrained by injunction," and conceded that if the defendant, by his present conduct, would gain any right on his own part which he did not at that time possess, and which would prevent plaintiff taking the water directly from the stream, a good reason why he should be enjoined would be afforded. It held, however, that defendant could not acquire any such right, since a statute expressly prohibited the discharge of refuse into 2 stream at any point within 20 miles above where the water supply of a town was obtained, in such a way as to be deleterious to public health, and so impliedly prevented the prescription for such a use of a source of water supply from running. (See further reference to this case in subd. IV. infra.)

And, in holding to be unwarranted a decree which enjoined a dairyman from polluting a creek, it was said in Spring Valley Waterworks v. Fifield (1902) 136 Cal. 14, 68 Pac. 108, that it was a serious matter to destroy defendant's business by a judicial decree, and that it could not be done upon the mere surmise that certain of his acts might injure the plaintiff.

The refusal to enjoin a threatened pollution of a creek, by the proposed construction of a ditch for the purpose of drawing off water in a res

ervoir charged with alkali, was held to be warranted in Cushman v. Highland Ditch Co. (1893) 3 Colo. App. 437, 33 Pac. 344, where the evidence was conflicting as to whether the lands of the complainants, who appropriated the waters of the creek for irrigation, would be permanently injured, or whether the water would be purified by the flushing of the reservoir. The court observed that if, after the actual construction of the ditch, the complainants were able to show that the pollution would in fact permanently injure their land, they would then have the right to file a bill to restrain the use of the reservoir.

c. Purpose for which stream used.
1. By plaintiff.

Although as a rule the courts do not appear to differentiate particularly as to the nature of the use which the plaintiff makes of the stream, they have granted injunctions to protect plaintiff's use of the water for various purposes, some of the more common uses being noted in this subdivision. And the character of the use made by plaintiff is also indicated in many of the cases which are set out in other subdivisions. (See particularly subds. III. c, 2, and VI. d, infra.) While the reasonableness of plaintiff's use does not seem to have been discussed as a rule in the cases granting injunctions, it appears to have been generally held or assumed that the plaintiff's particular use or uses were reasonable.

As distinct equitable ground upon which the injunction was granted in Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, it appeared that defendant purchased its property with full knowledge of complainant's rights, the latter having notified the former, before purchasing. of the uses which he was making of the water, and that the former should not interfere with such uses; and, further, that, upon defendant applying for a corporate charter, complainant objected, until a proviso was inserted therein which stated that the corporation would not use the water