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terpose without a trial at law, especially where the alleged nuisance consisted in the exercise of a manufacture, and more especially where the works complained of were of great value

and a perpetual injunction might be ruinous.

In Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, one manufacturer was denied an injunction against another, where it was shown that, prior to the latter's operations, the stream had been polluted from various other sources, and it was not shown that the defendant's pollution affected the health of plaintiff's employees or the public, although it did appear that defendant's mill was the principal source of the pollution at plaintiff's factory,-the court taking the position that it should first be determined by an action at law that the defendant damaged plaintiff, and declaring that the extent of any such damage could be readily ascertained.

In dissolving a decree which enjoined the owner of a bleachery from polluting a stream which flowed through plaintiff's agricultural land, the Lord Chancellor considered in Elmhirst v. Spencer (1849) 2 Macn. & G. 45, 42 Eng. Reprint, 18, that, before asking for an injunction for a nuisance of this sort, the plaintiff should prove that he had sustained such a substantial injury as would entitle him to damages in an action at law. He also stated that the chancery court would not undertake to adjudicate upon the question of whether there was a nuisance, and expressed doubt whether any injury had resulted to plaintiff from defendant's works. And in this connection he called attention to the fact that there had been two assizes since the bleachery was started, in which plaintiff might have established his right, so he was not necessarily compelled to go into equity.

The point as to the necessity of a prior adjudication by a law court of the existence of a nuisance appears to have been raised in but few cases, however, and the equity courts seem to have generally granted the injunc

tive relief without such an adjudication.

In Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, the chancellor overruled the contention that the complainant's right was not clear, and that, therefore, it must first be established at law before an injunction would issue.

And in reply to the contention that, before equitable relief in relation to the underdraining of the cemetery could be granted, it must be determined in an action at law that this was in fact a nuisance, the court in Sutton v. Findlay Cemetery Asso. (1915) 270 III. 11, L.R.A.1916B, 1135, 110 N. E. 315, Ann. Cas. 1917B, 559, reversing (1914) 190 Ill. App. 455, said that in cases where, although the thing sought to be restrained was not a nuisance per se, the right to that relief was so clear as to be free from substantial doubt, the relief would be granted without first resorting to an action at law to declare the thing a nuisance, citing as likewise sustaining an injunction in a case of this sort without requiring a resort first to an action at law, Barrett v. Mt. Greenwood Cemetery Asso. (1896) 159 Ill. 385, 31 L.R.A. 109, 50 Am. St. Rep. 168, 42 N. E. 891.

b. Other remedy available.

1. At common law.

It will be noted that many of the decisions already set out stress the point that plaintiff's remedy at law for damages would not be adequate under the circumstances. See, for example, Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, supra, II.; Weston Paper Co. v. Pope (1900) 155 Ind. 394, 60 L.R.A. 899, 57 N. E. 719, supra, III. a; Desberger v. University Heights Realty & Develop. Co. (1907) 126 Mo. App. 206, 102 S. W. 1060, supra, III. c, 2; Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, supra. II.; Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480, supra, II. See also on the general proposition, Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, supra, II.

Thus in Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480, supra, II., where the plaintiff sought both damages and an injunction, and was merely awarded damages, his action having been regarded by the referee as one at law rather than in equity, the appellate court said that the plaintiff in such a case had his election as to which action he would bring, and that the courts would not elect for him which action he should prosecute,-declaring that the principles invoked by the plaintiff when he brought his action were not novel, but to a large extent found an analogy in the action of ejectment at law, and that the courts would not turn an action of ejectment, on the trial, into that of trespass.

And it was said in Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, that a continuing nuisance by polluting the waters of a stream might be proceeded against either at law or in equity, at the election of the injured party.

In Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986, the court said that certainly the privilege of bringing a multitude of actions for damages as they successively were inflicted was not an adequate remedy at law. The fact that there was a remedy by an action for damages, by indictment, was held not to preclude the issuance of an injunction, in Com. v. Kennedy (1913) 240 Pa. 214, 47 L.R.A. (N.S.) 673, 87 Atl. 605. The court considered that damages could be estimated only by conjecture, and not by any accurate standards, and that one injured ought not to be required to await the slow progress of legal redress.

The defense that damages could be ascertained, so as to give plaintiff an adequate remedy at law, was disposed of in Wanamaker v. Benzon (1916) 63 Pa. Super. Ct. 401, enjoining the continuance of pollution of a stream in such a way as to deposit sewage on plaintiff's lawn at times, by the assertion that plaintiff was entitled to enjoy his property in the way he wished, being not obligated to cover

the stream to accommodate others; the court stating, further, that the damage flowing from the continuance of the nuisance could not be ascertained in dollars and cents, since it affected plaintiff in ways which were not subject to any monetary standard, and that as long, as the nuisance continued, the damages were "irreparable," in the legal sense of the word.

One who has filed a bill against certain defendants to enjoin the continued pollution of a stream, and also an action for damages already suffered, will not be required to elect as to which of these two remedies he will rely upon, since the relief sought in each case is different. American Tar Products Co. v. Jones (1920) 17 Ala. App. 481, 86 So. 113.

Upon the ground that it was absolutely necessary to prevent a continued series of actions, an injunction was granted to a tenant for life of a dye works to restrain the fouling of a river by a waterworks company, in Clowes v. Staffordshire Potteries Waterworks Co. (1872) L. R. 8 Ch. (Eng.) 125.

The contention that the defendants and their lessees had been tried in a law court for the nuisance complained of, and that accordingly the equity court ought not to interfere, was overruled in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71.

And in Atty. Gen. v. Bradford Canal (Eng.) supra, one ground of defense was that of the pendency of an appeal in a law court, from a judgment that the defendants' lessees were guilty of a nuisance in respect to the same pollution, they having been indicted together with the defendants; but the court took the view that the decision at law was correct, and that the defendants should be enjoined notwithstanding such appeal. It was decided, however, that the decree should not become effective until eight months after its issuance.

But in Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, where the owner of a mill which was being operated by a lessee sought to enjoin the pollution of a brook by defendant's bleachery, the decision against the plaintiff

was based largely upon the ground that the plaintiff's remedy, if he were entitled to any, was by an action for damages.

The refusal to enjoin the pollution of a stream from salt water was held to be proper, upon the ground that plaintiff had an adequate remedy at law if his rights were violated, where it was practicable for him to obtain water for his furnace at other and convenient sources at a moderate and ascertainable expense, and because such injury as was done was unavoidable, in Salem Iron Co. v. Hyland (1906) 74 Ohio St. 160, 77 N. E. 751.

And see Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, supra, VI. a.

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, it was held that an injunction would not be issued against the use of land for development of oil, to prevent partial injury to pasture land lower down a creek into which some of the oil flowed, where the injury, although extending over a considerable period of time, was temporary, and was compensable by an award of damages, especially where the lower owner accepted money payments for injuries which he had suffered during the course of development of the oil property. In this case, however, the court made its denial of the injunction contingent upon the payment of such annual damages as might from time to time seem just.

(Generally, as to injury to adjoining or lower riparian owners by waste from oil wells, see annotation in 34 A.L.R. 263 [Waters, § 124].

In Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, where plaintiffs had recovered a judgment at law against defendants for polluting a stream, but with only a farthing damages, and it was shown that plaintiffs had threatened actions against other manufacturers, after which the latter had agreed to pay, at certain rates, for polluting the stream, the vice chancellor said that, if they desired to apply to defendants a certain

pressure in order to bring them to terms, plaintiffs ought to be left to that pressure which might be applied by means of an action or actions at law, apparently considering that if they should bring another action at law they might recover substantial damages. At any rate, he believed that the injury might in some way be compensated by money, and upon that ground refused to grant the injunction.

2. Under statute.

Nor will the availability of a statutory remedy, other than by injunction, ordinarily preclude the issuance of the injunction in a proper case.

Thus, the bare fact that a statutory remedy by indictment was provided in the case of a public nuisance by corrupting the water of a stream was held not to deprive the court of its equitable powers, in Barrett v. Mt. Greenwood Cemetery Asso. (1896) 159 Ill. 385, 31 L.R.A. 109, 42 N. E. 891, 50 Am. St. Rep. 168, reversing (1895) 57 Ill. App. 401.

And see Com. v. Kennedy (1913) 240 Pa. 214, 47 L.R.A. (N.S.) 673, 87 Atl. 605, supra, VI. b, 1.

In People v. Truckee Lumber Co. (1897) 116 Cal. 397, 39 L.R.A. 581, 58 Am. St. Rep. 183, 48 Pac. 374, enjoining the pollution of a river by sawdust and other deleterious substances, the court said that the fact that the destruction of fish was punishable as a misdemeanor did not imply that the legislature intended to make the criminal remedy exclusive of the civil one.

In reply to the contention that relief was afforded by a statute which conferred upon the state board of health full jurisdiction to determine as to the pollution of a water supply, it was said in Harris v. Mackintosh (1882) 133 Mass. 228, that, even if the riparian owner could avail himself of that statute, which was directed to the protection of the public, his remedy thereunder was not exclusive, and that he was not deprived of his ordinary remedy in respect to his individual injury.

A statute providing that, upon a

conviction for polluting a watercourse, it should be the duty of the court so convicting to issue an injunction against the further continuance of such pollution, was held to be merely cumulative, and not to interfere with the general equity jurisdiction to prevent and suppress nuisances, and so not to preclude the issuance of a decree to enjoin a threatened pollution of a stream, in Cardwell v. Austin (1914) Tex. Civ. App. 168 S. W. 385.

In reply to the defense which was set up by one who discharged sewage into a stream, that plaintiff had a remedy against the sanitary authority for its failure to drain the district effectually, the court said in Wallace v. M'Cartan [1917] 1 Ir. 377, granting an injunction, that there was no remedy against it by mandamus or action for mere nonfeasance, and that, while there might be another remedy under the Rivers Pollution Act, that statute preserved plaintiff's commonlaw right of action, and plaintiff was not compelled to resort to the statute, even if it were clear that it would afford him adequate and sure relief.

Replying to the contention that, under the public health act, plaintiff might have applied to the provincial board of health to remedy the pollution, the court in Bright v. Niagara Racing Asso. (1921) 20 Ont. Week. N. 46, said that it was not certain whether the board could have acted upon such an application, but that, if it had refused to act, its refusal could not deprive plaintiff of his right to restrain defendants from polluting the stream. The court observed that plaintiff might have enforced payment of the statutory penalties, but that he was not confined to that remedy.

In overruling the defense that, since the fishing acts provided penalties for any breaches of the law, no other penalty could be imposed by injunction, it was said in Atty. Gen. v. Ewen (1895) 3 B. C. 468, that where an act created a new offense and enacted a particular penalty the person proceeding under the statute was generally confined to the recovery of the

penalty in the mode prescribed, but that this rule was subject to two exceptions; namely, that whenever the illegal offense was threatened the court would interfere to prevent its being committed, and that under the Judicature Act the court was enabled to grant an injunction in all cases in which it should appear just and convenient, this being a general supplement to all the acts of Parliament.

In Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, where defendants were enjoined from allow-· ing polluted water to pass through their canal into a brook, at the instance of several inhabitants of the town upon the banks of the brook, it was contended that the defendants might compel the town to abate the nuisance, but the court was not sufficiently impressed with this contention to make any reference to it.

But in holding that it was not shown in the particular case that the public in general, or any considerable portion thereof, was affected sufficiently, as by having its health endangered, to enable the state to enjoin the alleged pollution as a public nuisance, it was said in State ex rel. Wear v. Springfield Gas & E. Co. (1918) Mo. App., 204 S. W. 942, that, if the nuisance were a public one, then the defendant was subject to indictment and punishment under the criminal law.

c. Actual damage not shown; plaintiff's

nonuser.

As already indicated in subd. III. b, supra, the courts have frequently issued injunctions where an injury was merely threatened from a pollution, which already existed or appeared to be imminent. Likewise, injunctions have at times been granted over the objection that actual damage has not been shown, or that plaintiff has made no use of the stream,-the courts generally holding in such cases that under the circumstances it was not necessary to prove actual damage.

So, in holding upon demurrer that a water company was entitled to perpetually enjoin as a continuing nuisance the pollution of a river by a

manufacturer, by discharging foreign substances into it, with the result that the water became discolored and unfit to drink, it was said in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 53 Fed. 970, that, if the plaintiff had neglected to use or appropriate the water, it would not present any such impediment as would warrant a court of equity in refusing relief. And the court in (1893; C. C.) 57 Fed. 1000, granted the injunction.

Likewise, in holding to be warranted a decree which enjoined the defendant's discharge of refuse from its factory into a river in such a way as seriously to affect plaintiff and his family in the enjoyment of their home further down the river, the court in Middlestadt v. Waupaca Starch & Potato Co. (1896) 93 Wis. 1, 66 N. W. 713, overruled the contention that no actual impairment of health was shown, nor any actual use of the water by plaintiff for household purposes. The court said: "It is too well settled to need discussion at this time that a riparian owner of property is entitled to have the water of a stream flow to and through or by his land in its natural purity, and that anything done which so pollutes such water as to impair its value for the purposes for which it is ordinarily used by persons so circumstanced, causing offensive odors to arise therefrom and injuriously affecting the beneficial enjoyment of adjoining property, may be restrained at the suit of the injured party; and neither distance from the source of pollution, nor public convenience, nor difficulty in avoiding the trouble, can either justify or excuse the wrong; nor is actual pecuniary loss necessary in order that an action may be maintained to restrain it."

And in overruling the contention. that actual damage was not shown, since plaintiff's employee did drink the polluted water, and it did not appear that its product was actually injured, it was said in Storm King Paper Co. v. Firth Carpet Co. (1918) 184 App. Div. 514, 172 N. Y. Supp. 33: "In its naked form the

proposition is that, in the absence of evidence of disease or death, or monetary loss from the presence of sewage precipitated in a stream by an upper riparian owner, a lower owner on the stream has no remedy; that is, sewage conveying death is irremediable, if an owner of property abstains from exercising his right to use it, or, in using, cannot prove noxious effects. Thereby defendant contends for immunity in sowing the germs of typhus pending its actual and recognized arrival. Persistent infringement of a right is not restrainable until it has wrought harm; let men sicken, and it may be die, before the court will prevent the cause; that is defendant's position. I find no warrant for such attitude in reason or authority. The asserted rule of perceptible, actual damage as a condition of restraint of a wrong, was condemned in Webb v. Portland Mfg. Co. (1838) 3 Sumn. 189, Fed. Cas. No. 17,322, and this court has consistently. followed the principles there stated." And the court concluded that "plaintiff may receive special and particular damage, apart from the rights of the public, by the discharge by the defendant of sewage into the creek, and that the use of the stream by the defendant in respect to such sewage is unreasonable and improper," although it also decided that the plaintiff was not already contributing to the pollution in a substantial degree.

The defense that the water was never used for human consumption was overruled in Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120 Atl. 69, the court stating that this fact afforded no justification for the defendant's acts.

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, supra, where defendant contended that much of the land irrigated by plaintiff's ditch was unfit for agricultural purposes at any event, the court took the view that, since crops grew on some of such land prior to the time when the defendant discharged the impure water into the

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