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parian owner, a trespass, and that another statute declared the contamination of a watercourse to be a private nuisance, was stressed in granting an injunction in Horton v. Fulton (1908) 130 Ga. 466, 60 S. E. 1059.

As to what parties may or may not sue to enjoin the pollution, see subd. VI. q, infra.

The owner and lessee of a hotel were enjoined from discharging sewage into a stream, at the instance of the city board of health, in State ex rei. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569, under a statute which gave the board the right to sue to abate such a nuisance instead of proceeding in a summary way, such board having adjudged that the act was a nuisance and the court taking the same view.

In enjoining the defendant from discharging factory refuse into a river from which a city obtained its water supply, under a statute which provided that no factory refuse "which either by itself or in connection with other matter will corrupt or impair, or tend to corrupt or impair, the quality of the water," should be placed "in any such river . . . above the point from which any city . . . shall or may obtain" its water supply, it was held in State ex rel. Board of Health v. Diamond Mills Paper Co. (1902) 63 N. J. Eq. 111, 51 Atl. 1019, affirmed on opinion below in (1902) 64 N. J. Eq. 793, 53 Atl. 1125, that the prohibition was against the placing of the refuse in the river anywhere above the point from which the city obtained its water, and that the injunction must issue, although it was conceded that there was no visible or appreciable deterioration of the water at the point where the city took its water, which was 6 or 8 miles below the point where the refuse was discharged. The vice chancellor overruled the contention that the solids, held in suspension in the water as it passed out of defendant's race way, soon sank to the bottom, leaving the water as pure as when it entered the mill.

And see in this connection, Com. v. 46 A.L.R.-3.

Kennedy (1913) 240 Pa. 214, 47 L.R.A. (N. S.) 673, 87 Atl. 605, infra, VI. c.

The defense that the pollution of the city's drinking water could not be traced to spigots in the city was overruled in State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, where the vice chancellor declared that the statute under which the proceeding was brought aimed at the pollution at the point of discharge into the stream, and pronounced against the threat and menace of pollution upon the banks of the streams; stating further, that the word "banks" need not be restricted to its literal meaning.

In Durham v. Eno Cotton Mills (1906) 141 N. C. 615, 7 L.R.A. (N.S.) 321, 54 S. E. 453, the decision that the city could enjoin the pollution of the river from which part of its water supply was obtained, by the direct discharge of mill sewage, was said to rest solely upon the statute, which provided that no person should discharge sewage into any river from which a public drinking-water supply was taken, unless the same should have been passed through some approved system of purification, and that the continual flow and discharge of such sewage might be enjoined upon the application of any person, the court observing that the statute was not intended merely to abate an existing nuisance, but to prevent that being done which was a menace to the public health, and which it was supposed might become a deadly peril and a public nuisance because fatal in its consequences. So far as the discharge of the mill sewage was concerned, the above decision was affirmed in (1907) 144 N. C. 705, 11 L.R.A. (N.S.) 1163, 57 S. E. 465.

Independently of its right as a riparian owner to enjoin the pollution. of the river, the city was held to be entitled to the injunction in St. John v. Barker (1906) 3 N. B. Eq. Rep. 358, upon the further ground that a statute provided that no sewer drain should empty into any source of water used for drinking or culinary purposes, the city having constructed a

dam in order to use the water from such river.

In holding that the plaintiff, to whom an injunction had been granted by reason of the proximity of the defendants' pleasure resort to a lake, where no actual pollution was shown, must pay the defendant damages, under the statute authorizing an injunction in such cases, the court in Rockville Water & Aqueduct Co. v. Koelsch (1916) 90 Conn. 171, 96 Atl. 947, said: "It may be doubted whether the finding of liability to pollution establishes the existence of such a real and immediate danger as would, in the absence of statute, be required to justify an injunction against a threatened nui

sance.

Passing that point, it must be conceded that a public pleasure resort and picnic ground is not necessarily a common-law nuisance. It may become one, if improperly conducted; but there is no allegation or finding that the defendants' resort was improperly conducted. The sole basis for the claim that the defendants' resort was abatable as a nuisance is found in its proximity to the waters of Snipsic lake. So that the true scope and effect of the plaintiff's claim of law is that any kind of a menace to the purity of the waters of its reservoir becomes, by virtue of the danger to the public health, a nuisance, which it has a right to have abated, without the payment of damages. We think this claim is too broad, and that § 6 of the Act of 1909 was intended to provide for the assessment of damages in cases like this, where the thing complained of as a nuisance or as dangerous to the public health would be unobjectionable except for its proximity to a source of water supply." And, after tracing the history of the legislation which extended the right to injunctive relief to cases where "such water is liable to pollution," the court observed, further: "The plaintiff's property right in having its water supply kept free from pollution is merely an incident of the public use to which its property is dedicated, and must be exercised in accordance with the Constitution and the statutes. We are not called upon

to determine whether the state might in the exercise of its police power, have forbidden the defendants to make any use of the reservoir for boating, for it has not attempted to do so."

In Durham v. Eno Cotton Mills (1906) 141 N. C. 615, 7 L.R.A. (N.S.) 321, 54 S. E. 453, supra, where mill sewage was discharged into the river at a point more than 15 miles above the point where the city's intake was located, the contention was overruled that the statute (already referred to) applied only to sewers maintained within the distance of 15 miles above the intake, this contention being based upon the fact that the statute required inspection of streams not more than 15 miles in length. In this connection the court pointed out that the inspection was intended as a guard against other sources of pollution than sewage, and that the statute did not require that the sewage discharged into the river should injuriously affect the water at the intake, but that it was sufficient if it polluted the river at the sewer's outlet.

A finding that a town was not entitled under a statute to enjoin the pollution of a pond from a glue factory, it having been alleged that waste was drained through a swamp into the pond, has been held to be warranted, where the contention that defendant had discharged its waste into the pond was negatived by the finding that analyses of the water failed to disclose any impurities from the factory, the evidence being not before the court upon the appeal, and where the pond had no feeder, nor any filter basin upon its shore, the statute having provided that an injunction might be issued in the event of the discharge of polluting matter into a feeder, or a filter basin, as well as into the pond itself. Rockport v. Elwell (1914) 219 Mass. 287, 106 N. E. 994.

A penal statute declaring to be misdemeanors various acts bearing upon the pollution of certain classes of streams of water was said, in Spring Valley Waterworks v. Fifield (1902) 136 Cal. 14, 68 Pac. 108, denying an

injunction, to have no direct bearing upon litigation involving the abatement of a nuisance.

As far as the pollution by mere surface washing into the river of dyestuffs and of privy excrement was concerned, it was held in Durham v. Eno Cotton Mills (1907) 144 N. C. 705, 11 L.R.A. (N.S.) 1163, 57 S. E. 465, that, since these forms of pollution did not pass through defendant's sewer, they were not within the meaning of the statute referred to in the earlier decision in (1906) 141 N. C. 615, 7 L.R.A. (N.S.) 321, 54 S. E. 453, infra, IV., and that, accordingly, as to such pollution the decree previously issued must be reversed, inasmuch as the evidence failed to prove the actual existence of a nuisance. The court observed that, as to such pollution, the city was not entitled to the injunction unless it could show special damage, or such a pollution as would render the water at the city's intake, and not merely at the outlet (where the polluting matter was discharged into the river), unfit for the uses to which it might be applied.

As to plaintiff's contention that defendant might acquire a prescriptive right to pollute unless enjoined, it was said in Brookline v. Mackintosh (1882) 133 Mass. 215: "But whether an individual could or could not, as against himself, grant a permission to do those acts expressly forbidden by statute, one standing in the position of the plaintiff could not. Prescription assumes that there has been a grant which by lapse of time has been lost. It necessarily assumes that there is someone having a capacity to grant. No board and no authority exists which has the power under the law to grant the right to corrupt or pollute the quality of the water for domestic uses, or to render it deleterious to health, in streams which are used as sources of supply to cities or towns. The plaintiff has certainly no such power; it is a corporation performing a public duty; the property which it holds is in public trust; it could not, either by express grant, or by submission to user, or by simple neglect, enable a person to complete

a title by prescription, when the acts done in the assertion of such a title are prohibited by statute. . . . The acts done by the defendant which corrupt or impair the quality of the water, if done without right after the passage of the Statute of 1878, are of this character. The provision in that statute, that prescriptive rights of drainage or discharge are not impaired or destroyed to the extent to which they lawfully exist at the date of the passage of the act, implies that none are to be gained thereafter in streams which are the source of water supply, if deleterious to health. We do not therefore perceive that any right can be gained against the plaintiff, or that it needs any injunction to protect its right to take the water directly from the stream, or that this right is now invaded."

In Brookline v. Mackintosh (Mass.) supra, it was said: "The plaintiff contends that the Statute of 1878, chap. 183, in prohibiting drainage or refuse matter from being put into the river so as to corrupt or impair the quality of water, makes it an offense to do so not only where the water supply is taken, but also at or near the factory, and that the evidence shows that the water is there corrupted. Even if this construction is correct, which we do not decide, the plaintiff cannot ask an injunction on that account, as such corruption at that place would not be an injury to it as a private nuisance, even if it might be to others, or even if, as a public nuisance, it is remediable by indictment."

V. Extent of relief.

It would seem that in most of the cases the courts are disposed to limit the granting of relief strictly to restraining, in general terms, the defendant's pollution of the stream, since as a rule they appear to be unwilling to incorporate into the decree any mandatory order, such as one for the closing of a manufacturing establishment, or to order a sewer or other source of pollution to be entirely discontinued; and the injunction is often upon the condition that it shall not be effective immediately, but only at

a later time, after the defendant shall have had a reasonable time to remedy the pollution.

Thus in the reported case (CARETTI .v. BRORING BLDG. Co. ante, 1), the injunction to restrain the discharge of sewage was granted only upon such a condition.

And the decree in French v. ChapinSacks Mfg. Co. (1915) 118 Va. 117, 86 S. E. 842, was limited to enjoining the defendant's discharge of an unnecessary amount of oil into the stream, which the court stated could be readily prevented, the decree being suspended for a time in order to give defendant the opportunity to stop such discharge.

A manufacturing concern was enjoined, under a statute, from discharging its refuse into branches of a river, and also from placing waste, or suffering it to remain, on the banks, the latter part of the injunction to become effective only after the concern should have had a reasonable opportunity to perfect a water neutralization treatment, in State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164. And see Wanamaker v. Bushnell (1913) 22 Pa. Dist. R. 926, infra, VI. 1.

In Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, a decree was granted upon the condition that it should not become effective until eight months after its issuance. And see Stollmeyer v. Petroleum Development Co. [1918] A. C. (Eng.) 498, note-P. C., infra, VI. 1. See also Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522.

Fleming v. Gemmill [1908] S. C. (Scot.) 340, is stated in Scots' Dig. 1904-1914, col. 1132, to have held that an interdict de plano should not be granted to prevent the pollution of the stream, under the circumstances of the particular case, before the defenders had had an opportunity of adopting remedial measures.

It is stated in 4 Scots' Dig. col. 391, that an interdict against an alleged nuisance, by forming a public sewer to be discharged into the Water of Leith, was granted, in so far as it

was intended to open it into the river, till the question was tried, in Downie v. Moray (1824) 3 Sc. Sess. Cas. 1st series, 158, referring also to Young v. Bowie (1824) 3 Sc. Sess. Cas. 1st series, 307. (But a later decision of the Downie Case (1825) 4 Sc. Sess. Cas. 1st series, 167, is cited in the same column as holding that the discharge of sewage in the particular case could not be objected to as a nuisance, but that it was to be done in the manner least injurious to plaintiffs.)

A decree which totally enjoined the operation of a sewage plant which polluted a stream was held to be too stringent, where defendant's land was entirely surrounded by plaintiff's land, and the effect of enjoining the operation of the plant entirely might be to convert defendant's property into a pesthouse, in Duncan v. UnionBuffalo Mills Co. (1918) 110 S. C. 302, 96 S. E. 522, the court holding that the injunction should extend only to the unlawful use of the plant.

A decree ordering the defendant to connect up with a sewer which was apparently being constructed was held to be unwarranted in Behnisch 7. Cedarburg Dairy Co. (1923) 180 Wis. 34, 192 N. W. 447, upon the ground that the court could not choose for defendant the method by which it should abate the pollution of the stream.

Although in Sutton v. Findlay Cemetery Asso. (1915) 270 III. 11, L.R.A. 1916B, 1135, 110 N. E. 315, Ann. Cas. 1917B, 559, the underdraining of the cemetery was enjoined, the court refused to enjoin as well the proposed use of the cemetery for burying bodies, being of the opinion that it was not satisfactorily shown that such proposed use would of itself inevitably create a nuisance, it being shown that the land was not low and swampy as alleged.

In Canfield v. Andrew (1882) 54 Vt. 1, 41 Am. Rep. 828, where plaintiff claimed not only injury to the operation of his mill, but also further injury to lands below the mill, the decree granted relief as to the former

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Spence v. McDonough (1889) 77 Iowa, 460, 42 N. W. 371, supra, III. c, 1, held to be unwarranted a decree which enjoined the damming of a stream in such a way that the water should become stagnant or foul in any manner, where the complaint was not based upon stagnation, but intimated that a general inhibition of fouling the stream so as to injure plaintiff might have been proper.

However, a canal company was ordered to fill up a ditch through which polluted water came to another ditch which was used by plaintiff, in 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.

The decree in New York v. Blum (1913) 208 N. Y. 237, 101 N. E. 869, affirming (1912) 151 App. Div. 923, 135 N. Y. Supp. 1104, which modified. (1911) 72 Misc. 243, 131 N. Y. Supp. 87, ordered that defendant should allow the plaintiff city, at its expense, to clean defendant's duck pond and put a filter at its outlet once a month.

An injunction carrying with it a penalty of a specified amount for each year in which the pollution should be continued was upheld against the contention that the amount was excessive, as well as that no penalty could be so imposed, in Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986.

The decree which was granted in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, apparently enjoined individual defendants from discharging sewage and water-closet contents, or other foul and offensive matter, from their respective houses into the sewerage system, as well as enjoining the

principal defendant from maintaining such system.

The denial of an injunction, in connection with an award of damages was made contingent upon the payIment in the future of such annual damages as might from time to time seem just, in Sussex Land & Live Stock Co. v. Midwest Ref. Co. (1923; C. C. A. 8th) 34 A.L.R. 249, 294 Fed. 597, affirming (1922; D. C.) 276 Fed. 932, infra, VI. b, 1.

In Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, the decree took the form of ordering that certain works, which it was agreed were necessary to prevent the pollution, be installed and kept in order at defendant's expense.

As to a reservation to the plaintiff of the right to bring a new suit to enjoin the continuance of the pollution, which the lower court included in its award of damages and refusal of an injunction, the appellate court in Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480, said that no such reservation could be necessary, and that the court had no power to deny such a right.

VI. Special defenses.

a. Necessity of prior adjudication at law of existence of nuisance. The equity courts have at times been unwilling to grant injunctive relief in respect to the pollution of a stream in doubtful cases unless a law court should have first adjudged that the conditions complained of constituted a nuisance.

See, for instance, Atty. Gen. v. Steward (1869) 20 N. J. Eq. 415, supra, III. b.

Thus, in Ingraham V. Dunnell (1842) 5 Met. (Mass.) 118, supra, after noting that the defendant relied upon a title to the brook by prescription, and upon an estoppel under a certain indenture, claiming as well that the pollution arose from the stagnation of the water in plaintiff's ponds rather than from any act of the former, the court said that the right to maintain such a defense was sufficiently doubtful to entitle him to a trial at law, and added that a court of equity was extremely unwilling to in

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