justice by the establishment and enforcement of sound principles, the prosperity of our people should be hindered or checked, but it would be not only a source of regret, but of reproach, if material prosperity were stimulated and encouraged by a refusal to give to any citizen a remedy for wrongs he may sustain, even though inflicted by forces which constitute factors in our material development and growth. Courts have no policies, and cannot permit consequences to influence their judgment further than to serve as warnings and incentives to thorough investigation and careful consideration of the causes submitted to them."

The Pennsylvania court itself indicated its disinclination to extend to the pollution of a public-water supply the rule laid down in the Sanderson Case, above referred to in Com. ex rel. McCormick v. Russell (1896) 172 Pa. 506, 33 Atl. 709. In the latter case, holding that where the company furnishing water to a borough sought to enjoin the pollution of a stream, the state was properly made a party plaintiff, the court apparently considered that the state would be entitled to the injunction if it should present sufficient proof, having queried: "Does a great municipality stand on the same ground, when the water supply for its multitudes of people is under consideration, as a single property owner must stand, under Pennsylvania Coal Co. v. Sanderson?" And, after suggesting a number of questions to be determined by the submission of evidence, it commented thus in reference to whether the rule above referred to should be applied: "There would seem, upon this view of the law, to be no remedy provided for the public or the water company. The latter must lose its plant, its business, and, for all practical purposes, its franchises. The former must suffer the pollution and the actual deprivation of its water supply. court can require the company to be diligent in its effort to procure for the municipality a sufficient supply of pure water if it can be had from sources reasonably accessible to its

plant, and it can restrain the collection of rents if such water is not furnished. It cannot, however, require the company to relocate its plant, or to seek a new supply to reach which would involve an expense greater than its entire capital stock. . . . For myself I can see no reason why our duty towards others ought not to place limits upon our rights of property similar to those which it has put upon our natural rights of person. 'Sic utere tuo ut non alienum lædas' expresses a moral obligation that grows out of the mere fact of membership of civil society. In many instances it has been applied as a measure of civil obligation, enforceable at law among those whose interests are conflicting. Whether it is capable of general application, and whether it is applicable when the interests of the public and those of an individual are irreconcilable, is an open field for inquiry, into which this case leads."

And in distinguishing the Sanderson Case and other cases, and granting an injunction, the court in Rarick v. Smith (1896) 17 Pa. Co. Ct. 627, 5 Pa. Dist. R. 530, said that, while it was true that the defendant was conducting a lawful business on his own property (dynamite manufacturing), it was not pretended that any of the ingredients were produced from the soil on which the works were operated; stating, further, that the substances were all brought from a distance outside, and that the business had no necessary relation to the land itself, and was not an ordinary or natural use of the land.

In reply to the contention that the private sewer in question occasioned less hazard to health than any other practicable method of disposing of the sewage, until the city should build public sewers, and that the hotel was a public necessity, it was said in Hutchinson v. State (1885) 39 N. J. Eq. 569, affirming (1884) 39 N. J. Eq. 218, that, if the hotel could not dispose of its necessarily accumulating filth without creating a nuisance, it was plain that its business must cease in that locality, until it could be con

ducted with due regard to public safety and comfort.

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

App., 163 S. W. 1023, where defendants claimed that the sand which was to be taken from the bar in the river was absolutely essential for building purposes, and that the particular bar was the only place where satisfactory sand could be procured, the court said that "the necessities of one man or any number of men cannot justify an injury to or the destruction of another's property, without his consent and without remuneration; so, if it be true, as alleged by appellants, that if this injunction be perpetuated the people of the city of Houston will be compelled to pay more for sand in building up their city, on the other hand, it is equally true, according to the finding of the jury, that, if the appellants are permitted to remove the bar in question, that appellee's land will be rendered materially less valuable, and possibly utterly worthless."

In MacNamara v. Taft (1908) 196 Mass. 597, 13 L.R.A. (N.S.) 1044, 83 N. E. 310, the court stated that no discharge of noxious waste, in quantities sufficient noticeably or appreciably to affect the quality of the water in the lands of a proprietor at a considerable distance below, was shown to be necessary in the business of manufacturing cloth, however convenient or profitable it might be to the manufacturer.

Independently of the ground of defendant's unreasonable use of the creek itself, the allowance of the injunction in Aberdeen v. Lytle Logging & Mercantile Co. (1910) 58 Wash. 368, 108 Pac. 945, was based upon the further ground that defendant was not actually using the creek at all in hauling logs across it, but was merely using the land, and that accordingly the pollution was not a necessary incident to defendant's business.

The argument was advanced in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, that the necessary result of the injunction would be seriously to stop the canal, and that defendants would have to go to Parlia

ment to avoid being indicted on that ground, but the court said that this did not appear to be of any weight.

But the distinction between an operation essentially dangerous, unhealthful, or otherwise greatly injurious, where the injury might be avoided by a more careful management or even by the removal of the works, and one lawful in itself, which could not be carried on elsewhere than where nature located it, or where public necessity requires it to be, was made in Barnard v. Sherley (1893) 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117, the court stating, as to the latter class, that "those liable to receive injury from it have a right only to demand that it shall be conducted with all due care, so as to give as little annoyance as may be reasonably expected, and any injury that may result, notwithstanding such care in the management of the work, must be borne without compensation. It is then a case in which the interests and convenience of the individual must give way to the general good." It was held that the sanitarium with the artesian water, in which the diseased persons were bathed, belonged to the latter class, and that, as due care was exercised in respect thereto, the owner of the pasture land into which such water drained could not enjoin the pollution.

And, in holding that issues should be framed for a jury as to the defendant manufacturer's claim of prescription by continuous use for over twenty years, or of estoppel by reason of the plaintiff's knowledge of or assent to the defendant's business, in Harris v. Mackintosh (1882) 133 Mass. 228, where the owner of a building lot was seeking to enjoin the alleged threatened pollution of a stream, and defendant had not conducted his business at the time when plaintiff bought the lot, and denied any pollution,-the court stated that the alleged nuisance consisted in the exercise of a necessary and useful manufacture, even if it were one attended by some disagreeable circumstances, and that no irreparable injury was threatened to the

plaintiff, since he had made no use of the lot for a residence or a pasture.

1. Plaintiff's injury small, as compared with defendant's if enjoined (“comparative injury” doctrine).

As to the necessity of defendant's use, see subd. VI. k, supra.

A defense which has been frequently invoked is the so-called "comparative injury" doctrine, which is the contention that plaintiff's injury is or would be small as compared with the defendant's in case the latter should be enjoined. While some of the courts appear to have been influenced by this doctrine so as to apply it to the extent of suspending the operation of an injunction, and occasionally injunctive relief has been denied altogether upon the theory that defendant's injury would be greater than plaintiff's, yet as a rule the courts of this country are reluctant to apply the doctrine, and many of the decisions apparently go to the length of repudiating the doctrine entirely.

See dictum in Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, supra, VI. a, apparently recognizing the doctrine.

In Elmhirst v. Spencer (1849) 2 Macn. & G. 45, 42 Eng. Reprint, 18, where the Lord Chancellor doubted whether plaintiff was actually injured at all from the pollution of the stream, he declared, in commenting on the insufficiency of the evidence: "Another consideration here is which side will suffer most, the defendants from the granting of the injunction, or the plaintiff from its being withheld. . . . There can be no doubt then as to the balance of inconvenience. If this injunction stands there will be a total cessation of the defendants' works, which would amount to the greatest injury."

And in Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, although the decision turned upon other grounds, it was said that to grant the injunction would have the effect of seriously injuring, if not ruining, the defendants, and that, weighing the injury that might accrue to the one party or the other by granting or re

fusing the injunction, if the decision were to turn upon that point alone, it would have to be refused. It may be noted that in this case the plaintiff had already recovered damages of a farthing from defendants for the pollution of the stream.

With respect to the matter of enjoining objectionable odors from a fish-oil factory, after refusing, on other grounds, to enjoin an alleged pollution of the river and bay, it was said in Tuttle v. Church (1892; C. C.) 53 Fed. 422, (appeal dismissed in (1894) 6 C. C. A. 685, 5 U. S. App. 671) that the effect of an injunction would be to close the defendants' works, destroy their business, and thereby cause the loss of a large amount of invested capital, while the injury to the plaintiffs (summer residents) was comparatively slight.

And the "comparative injury" doctrine was expressly recognized, in denying injunctive relief in respect to the partial and temporary pollution of pasture land by oil deposited in a creek, but allowing damages therefor, in Sussex Land & Live Stock Co. v. Midwest Ref. Co. (1922; D. C.) 276 Fed. 932, affirmed in (1923; C. C. A. 8th) 34 A.L.R. 249, 294 Fed. 597. But see Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, infra.

In State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, the vice chancellor stated that at a former hearing the pollution of the streams was established, but that as it was not appreciable in the city, which obtained its water supply therefrom, and as defendant was furnishing to the Federal government an exclusive product for the prosecution of the World War, the inconveniences of the parties, in the trying circumstances, were considered and the injunction was withheld. But the decree was issued a few months later, after the Armistice, upon a further hearing.

The contention that the granting of the injunction would work a great hardship upon the defendant, and also upon others owning houses connected with the sewer, and would menace the

health of people in that vicinity, was answered by the court in the reported case (CARETTI v. BRORING BLDG. Co. ante, 1) by declaring that, even though this were true, it would not prevent the issuance of an injunction if the conditions complained of were not changed. However, the court admitted that the sudden closing of the sewer would create a very serious situation, so in granting the injunction it decreed that it should be effective only unless, within a reasonable time, the defendant should so change its sewerage system as to avoid injuring the plaintiff.

In Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, where plaintiff's damage was not shown, the court said, in refusing the injunction, that it was no small matter to silence defendant's factory, which cost $120,000 and employed nearly 300 hands.

And in reply to the contention that the injury to defendants, owners of houses, would be greater than that to the plaintiff, if the former should be enjoined from discharging sewage into a stream so as to pollute plaintiff's meadow and lawn, the court in Wanamaker v. Bushnell (1913) 22 Pa. Dist. R. 926, stated that it could not apply that rule to the facts of the case, and that even when the damages were slight, as they were not in the present case, where the act complained of was such that, by its repetition or continuance, it might become the foundation or evidence of adverse right, a court of equity could interpose by injunction. However, it added that the rule of greater injury to the defendants might afford some reason for extending the time when the injunction should go into effect, and granted a decree upon the condition that it should not be operative for a year. And in this connection the court concluded that an injunction requiring an immediate disconnection of the houses with the existing sewers would be an undue hardship upon the defendants, and might prove disastrous to the health of their families and the community in general, and that to compel defendants to construct cesspools at once would lead to a large ex

penditure of money, which would undoubtedly be lost and wasted if the borough should construct its sewer system and disposal plant as contemplated.

In granting an injunction restraining an oil concern from polluting a stream used by an operator who was likewise engaged in boring for oil, but upon the condition that it be suspended for two years to give defendant ample opportunity to remedy the pollution, the court in Stollmeyer v. Petroleum Development Co. [1918] A. C. (Eng.) 498-P. C., said that it must grant the injunction, but that it would not be right to enforce it at once, since the loss to the defendant would be out of all proportion to the plaintiff's gain, taking into consideration an agreement by the defendant to pay from time to time such damages as might be shown.

Although it was said in Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480 (dictum), that, upon a preliminary application for an injunction to enjoin a pollution, the judge might find that the consequences of granting the preliminary injunction might be of much greater damage to the defendant than the injury alleged was to the plaintiff, and for that reason he might decline to interfere before the trial,—in holding that the plaintiff should have been granted a decree where damages alone had been awarded, the court said that it would seem that the main ground why the injunction was denied for the time being was the great injury which the defendant would sustain by the consequent destruction of the extensive cheese factory which he had erected; and, after observing further that plaintiff did not ask that the manufactory should be destroyed, and stating that the pollution could probably be avoided without any very great expense and without any real injury to the manufactory, it added in this connection: "But at all events the law does not allow one to appropriate or injure the property of another permanently, offensively, and annoyingly, and permit him also to compel the plaintiff to seek redress in successive suits at law; especially when it is so

difficult, as in this case, to give any exact proof of the actual damages."

In Whalen v. Union Bag & Paper Co. (1913) 208 N. Y. 1, 101 N. E. 805, reversing (1911) 145 App. Div. 1, 129 N. Y. Supp. 391, the court refused to apply, and seems to have shattered, the "balancing of injuries" doctrine, in holding the plaintiff farmer entitled to an injunction against the defendant pulp manufacturer, where the latter's mill represented an investment of over $1,000,000, and employed 400 or 500 operatives. The court said: "The setting aside of the injunction was apparently induced by a consideration of the great loss likely to be inflicted on the defendant by the granting of the injunction, as compared with the small injury done to the plaintiff's land by that portion of the pollution which was regarded as attributable to the defendant. Such a balancing of injuries cannot be justified by the circumstances of this case. It is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction shall issue. . . . One of the troublesome phases of this kind of litigation is the difficulty of deciding when an injunction shall issue in a case where the evidence clearly establishes an unlawful invasion of a plaintiff's rights, but his actual injury from the continuance of the alleged wrong will be small as compared with the great loss which will be caused by the issuance of the injunction. This appeal has been presented as though that question were involved in the case at bar, but we take a different view. Even as reduced at the appellate division, the damages to the plaintiff's farm amount to $100 a year. It can hardly be said that this injury is unsubstantial, even if we should leave out of consideration the peculiarly noxious character of the pollution of which the plaintiff complains. The waste from the defendant's mill is very destructive, both to vegetable and animal life, and tends to deprive the waters with which it is mixed of their purifying qualities. It should be borne in mind, also, that there is no claim on the part of the

defendant that the nuisance may become less injurious in the future. Although the damage to the plaintiff may be slight as compared with the defendant's expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule; for, if followed to its logical conclusion, it would deprive the poor litigant of his little property by giving it to those already rich. It is always to be remembered in such cases that 'denying the injunction puts the hardship on the party in whose favor the legal rights exists, instead of on the wrongdoer.' 5 Pom. Eq. Jur. § 530. In speaking of the injustice which sometimes results from the balancing of injuries between parties, the learned author from whom we have just quoted sums up the discussion by saying, "The weight of authority is against allowing a balancing of injury as a means of determining the propriety of issuing an injunction.'"

But, in refusing an injunction on another ground, it was declared in Driscoll v. American Hide & Leather Co. (1918) 102 Misc. 612, 170 N. Y. Supp. 121, affirmed without opinion in (1918) 184 App. Div. 916, 170 N. Y. Supp. 1026, that the consequences of its issuance would be nothing less than a public calamity, the court referring to the decision of the court of appeals in Whalen v. Union Bag & Paper Co. (N. Y.) supra, as an instance of the "fallacy of the argument that, because there is pollution, these defendants, from the very nature of their effluent, must have caused it;" and stating that in that case a sulphide mill representing an investment of more than $1,000,000 was restrained from polluting the same stream by discharging its mill effluent at a point upstream from these defendants, and that as a result that mill had been shut down ever since the year 1913.

In Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, where the defendant urged that the granting of the injunction would be ruinous to a vast amount of property owned by butchers and others, and destructive