to one of the most important branches of trade in the state, the court was of the opinion that the apprehension was not well founded, and answered the objection further by remarking: "The business of the appellant and those situated like him will certainly be destroyed, if the condition of things shown in this case is allowed to go on and increase, to say nothing of the interference with the comfort, health, and development of the whole neighborhood affected by the pollution of the stream. Certainly, there must be a remedy, and a prompt and thorough one, for such an evil, in and adjacent to a large and rapidly growing city; and we know of no remedy equal to the emergency, but that of the protective and preventive interference by injunction."

And in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, the court said: "This improvement company has expended large sums of money for the development and drainage of its property, and it is to be regretted if the location be such that no method of drainage can be reasonably adopted which will not affect the rights of others, but if we are to be governed by legal principles that are thoroughly and clearly established, in this state as well as elsewhere, there can be no doubt that the facts proven admit of but one conclusion, to be reached. . . . When then it is shown that the appellants not only empty into this stream substances which are offensive to taste and smell, but such as are liable to produce disease, can a court of equity hesitate to grant relief merely because the offenders may be subjected to loss or inconvenience?"

legitimately, influence a court of equity in the exercise of its discretion. But these considerations can exercise no influence in the determination of the present case. The legitimate ground for the allowance of the injunction is not so much the intrinsic value of the property sought to be protected, as its essential character and its importance to the complainants. . . . On the other hand, it will be observed that the injunction asked for is not designed to stop the defendants' works, or to interfere with their operations, but simply to restrain them from discharging offensive matter into the stream, and thereby polluting the waters which flow upon the complainants' land. There is no evidence in the cause that these refuse materials cannot, at small cost or inconvenience, be discharged elsewhere; and if they cannot, it was the defendants' own folly that subjects them to the greater cost and difficulty of guarding against an invasion of the complainants' rights."

In reply to the contention that the injury complained of was trifling, and that plaintiff might by a small outlay provide means for watering his stock without resorting to the creek, the court in Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, distinguishing that case from Jacobs v. Allard (1869) 42 Vt. 303, 1 Am. Rep. 331, said that it did not think that the comparatively small cost at which plaintiff might be able to supply water for his cattle from an independent source could be considered in connection with its right to have the stream remain uncontaminated. And the

court, citing other decisions, said that in most or all of them it was held that an injunction would be granted without regard to the magnitude of the interest enjoined, and that it was manifest that defendant's business could not be carried on in the magnitude described in the evidence, without infringing upon the rights of the lower landowners upon a stream of such small size, the defendant having contended that the general rule was "subject to a qualification inherent in the

nature of the subject and the relative rights of the parties."

In overruling the contention that the defendant manufacturer was prosecuting a business useful in its character, beneficial to the public, and furnishing employment to a large number of men, that the business was conducted with skill and prudence and with the most approved machinery, and that if damage resulted it did not arise from his fault, since the ancient rigor of the law had been modified in furtherance of industrial progress and development, the court in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, supra, VI. c, said: "This contention finds no support, either in principle or authority. It is rudimentary that no man can be deprived of life, liberty, or property but by due process of law, nor can private property be taken, even for a public use, without just compensation first having been made or received; and under no form of government having regard for man's inalienable rights can one be permitted to deprive another of his property without his consent and without compensation, on the plea that the injury to the one would be small, and the advantage to the other, or even to the public, would be great. This principle has its sanction in the consciousness and right reason of every man, and is asserted by the concurrent judgments of all courts which administer an enlightened system of jurisprudence."

Although in Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, the court said that to deprive the manufacturer altogether of the use of the stream for drainage would compel him to abandon his business, and thus render his plant of but little value, it also declared, in connection with the further defense that the business was conducted in a careful manner and without malice, that the fact that the manufacturer had expended a large sum of money in the construction of its plant could make no difference in its rights to the stream; since, before locating his plant, he was bound to know that every riparian proprietor was entitled

to have the waters of the stream come to him without corruption, subject only to the reasonable use of the water for domestic purposes, that he was bound to determine at his peril whether he could conduct the business without injuring his neighbors, and that the magnitude of the investment furnished no reason why he should escape the consequences of his own folly.

In Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468, it was said that the injunction could not properly be refused upon the ground of the magnitude of the defendant's interests and the importance of its business. In this connection the court observed that the effect of the injunction would not be to stop defendant's works or interfere with its manufacturing industry, but simply to restrain it from discharging offensive matter into the stream, and that it did not appear that such matter could not readily, and at small expense, be otherwise provided for.

As to the claim that great damage would be caused to the defendants if they should be enjoined from polluting the stream, it was said in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210, that they had no right to interfere with plaintiff's right to have the stream unpolluted, in order to make money for themselves, a decision on other grounds upon a subsequent appeal in (1899) 42 App. Div. 409, 59 N. Y. Supp. 203, being reversed in (1901) 167 N. Y. 462, 60 N. E. 757.

The court in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, was not impressed with the contention that the lesser use of the stream should give way to the more valuable use, this intention being based upon the ground that the state was largely interested in manufacturers, and its wealth depended mainly upon their prosperity.

In Salem Iron Co. v. Hyland (1906) 74 Ohio St. 160, 77 N. E. 751, denying an injunction upon other grounds, the court said that it was not required to consider whether an injunction should be denied because less injury would result to the plaintiff from denying,

it.

Decision was reserved upon the point whether the injunction should be denied because it would hurt the defendants more than it would help the plaintiffs, in Lawrie v. Silsby (1903) 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106, where it was claimed that the damage from pollution was small and growing smaller all the time.

In reply to the defense that the injury from emptying sewage into a stream during only the two weeks' period of a race meet was slight and of a temporary character, it was said in Bright v. Niagara Racing Asso. (1921) 20 Ont. Week N. 46, that whatever force this argument might have if the defendants were a public body carrying on an undertaking for the benefit of the whole public, it could not be invoked in the present case, where defendants were engaged in a private enterprise.

m. Laches.

Generally as to the effect of delay in seeking equitable relief against nuisance, see annotation in 6 A.L.R. 1098 [Nuisances, § 163].

As to estoppel, see subd. VI. n, infra. And as to prescriptive right, see subd. VI. o, infra.

It is clear that, upon a proper showing, laches upon the part of the plaintiff would be a good defense to a bill of this sort, and occasionally the denial of an injunction has been squarely based upon this ground.

Thus, in Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, the vice chancellor said: "The principal ground upon which I conceive that I must refuse this injunction is that the plaintiffs have not used due diligence in vindicating their rights. They stood by whilst the defendants were constructing their works, and they suffered the defendants to use their works after they were constructed, from the beginning of 1845 until the beginning of 1850, a period of very nearly five years, without giving them any hint that they were doing anything that they had not a lawful right

46 A.L.R.-5.

else in this case, I should have been of opinion, on this ground alone, that the plaintiffs were not entitled to the injunction."

In Warren v. Hunter (1853) 1 Phila. (Pa.) 414, where the complainant had been in possession of a factory for a year and a half without making any objection to the pollution, the court considered such delay to be a good ground for refusing to grant an injunction, in view of the insufficiency of the proof that defendant was responsible for any increase in the pollution.

And in Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, the court took the view that, by reason of delaying suit more than two and a half years after defendant started his mill, during which time the mill was enlarged, plaintiff lost his right to enjoin the pollution, even though he complained before the mill was built, since defendant had stated his reasons for casting waste water into the creek, and plaintiff's silence afforded some assurance that the explanation was satisfactory, especially when no steps were taken to interfere at the time when the plant was enlarged.

In Wanamaker v. Bushnell (1913) 22 Pa. Dist. R. 926, where plaintiffs allowed sewage drainage over their land for years without complaint, the court concluded that, in view of their laches, it was not warranted in granting such an injunction as would deny to defendants a reasonable time to escape a great outlay of money, stating that plaintiffs' laches furnished some cause for withholding the strong arm of the law, but the court granted an injunction, to be effective only after the expiration of a year.

In overruling the defense of laches, however, in Wanamaker v. Benzon (1916) 63 Pa. Super. Ct. 401, and holding to be warranted a subsequent decree, which was awarded against another defendant by the same judge, in favor of the same plaintiff and apparently in respect to the continuance of the same sort of, or a very similar, pollution, there being no indication in the report as to its having been grant

.

ed conditionally, the appellate court reasoned that the pollution of the stream was gradual, that plaintiff had submitted to it for several years before the conditions grew worse, when he sued some other offenders to enjoin it (apparently referring to the Bushnell Case), and that the present action was notice that any seeming acquiescence was at an end. And the court took the view that, when the defendants inclosed the stream, plaintiff was not required to anticipate that they would make an improper use of such construction, but that he had the right to assume that it would be used to carry surface drainage only, since the greater part of the borough was still dependent upon cesspools; and concluded that there was no such delay on plaintiff's part as would give defendant the right to continue to menace the health of the occupants of plaintiff's dwelling by depositing filth in the stream.

Likewise in the following cases the courts have held that the circumstances did not constitute laches.

In reply to the contention that complainant had stood by and seen the respondent expend large sums of money on its plant, knowing that the pollution of the water would be the neccessary consequence of running the plant, it was said in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611: "This objection must be made on the theory that it is so much the custom of manufacturers to pollute the rivers that it is to be presumed they will do it. and therefore the complainant should have been on its guard, and should have given notice if it intended to object to the pollution. But ordinarily it is not to be presumed that one person intends to violate the rights of another until he threatens to do it, and the owners of the lower mill could claim no damages until they were actually injured. And it seems that there had been continual complaints. The complainant was not obliged to sue immediately, and the motives which may have induced it to postpone suing do not seem material to the present case.. And, from

all the evidence, we cannot see that the complainant has been guilty of laches which should prevent this suit."

The defense of laches, which was advanced in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, was overruled thus: "Why should the appellees be denied relief merely because they were not hasty in seeking a remedy from the courts. It was not until the appellees became convinced that typhoid fever had been contracted by some of the inmates of the institution from the condition of the water that they sought the aid of the law. They should not be denied relief because they delayed as long as they believed it to be safe to those in their care before resorting to extreme measures."

The contention of laches was overruled in Desberger v. University Heights Realty & Development Co. (1907) 126 Mo. App. 206, 102 S. W. 1060, where the plaintiff had been informed of the defendant's general plan of improving its property, but had not been told that this plan included the changing of the course of the river.

And a finding that the plaintiff had not, by laches, lost his right to the injunction, was held to be fully justified in Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468.

Although in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, where it was claimed that the public had submitted to the pollution for about ten years, allowing defendants to continue to draw the polluted water into the canal all that time, and to incur expense for boats, it was intimated that laches might be imputed in case of an unreasonable delay upon the part of a single individual in bringing a bill to enjoin a private nuisance from pollution,-the court considered that a gradual and growing evil, developing into a public nuisance after a time, as in the case at bar, stood upon a different footing, and said that as to such a nuisance a defense founded upon defendants' faith in being allowed to continue the nuisance could not be supported.

n. Estoppel.

As to laches, see subd. VI. m, supra. As to the pollution being expressly authorized, see subd. VI. j, supra.

It would seem that plaintiff's conduct in encouraging, or expressly consenting to, defendant's use of the stream, would work an estoppel so as to preclude his being granted an injunction, and possibly also his actual knowledge of defendant's intention to pollute to an appreciable extent, coupled with his failure to object thereto, where the facts are sufficiently established.

Thus, landowners were held to have waived their right to have a stream flow in its natural purity, and thus not to be entitled to enjoin the discharge of sewage into it by others, where they had not only consented to such use by some parties, but had themselves made the same use of it, in Kemper v. Widows' Home (1881) 6 Ohio Dec. Reprint, 1049.

In Tuttle v. Church (1892; C. C.) 53 Fed. 422, appeal dismissed in (1894) 6 C. C. A. 685, 5 U. S. App. 671, the court refused to enjoin one who engaged upon a large scale in the business of "expressing" oil from fish and making fertilizers, where a summer resident claimed that thereby the river and bay near his house were rendered unfit for bathing, fishing, and sailing, where it was shown that complainant had lived near the works for several years without objecting to the alleged nuisance.

And the fact that the owner of the pasture land had acquiesced, knowing of the erection of the bathhouse where diseased persons were bathed, without making any objection, and that he must have known its purpose, was held to estop him from enjoining the pollution therefrom, in Barnard v. Sherley (1893) 135 Ind. 547, 24 L.R.A. 568, 575, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117.

The half of the equally divided court which prevailed in Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, held that the defendant beach resort was estopped from relying upon a right to use the lake for bathing purposes, by reason

of its constructive knowledge, at the time of its purchase of the land, that the city had previously bought the adjoining land from the same grantor, and its actual knowledge at that time of the fact that the city was then taking its supply of drinking water from the lake by means of its plant, which was plainly visible. The view of the other judges, that the city was not entitled to the injunction, rested upon other grounds.

In Swan v. Adams (1876) 23 Grant, Ch. (U. C.) 220, it was said that the • conduct of one of the plaintiffs in giving a license to dig a drain, and in lying by so long with knowledge of the pit from which the pollution was claimed to have flowed, prevented his asking an interlocutory injunction,unless an increased pollution were shown, which was not the case. But see Hunter v. Richards (1913) 28 Ont. L. R. 267, 12 D. L. R. 503, 5 D. L. R. 116, affirming (1911) 26 Ont. L. Rep. 458, supra, VI. j.

As to the refusal of an injunction, upon the ground that the inhabitants of the village consented to defendant's pollution, see Weir v. Claude (1889) 16 Can. S. C. 575, affirming (1888) Montreal L. Rep. 4 Q. B. (Quebec) 197, which reversed (1886) Montreal L. Rep. 2 S. C. 326, infra, VI. o.

Dunn v. Hamilton (1838) 3 Shaw. & M. 356, affirming (1837) 15 Sc. Sess. Cas. 1st series, 853, is cited in 4 Scots' Dig. col. 400, as having held that "a landlord, by the terms of the lease granted by him, as also by the tenor of his defenses to an action to interdict pollution, may hold himself out as having authorized the nuisance."

And see Ingraham V. Dunnell (1842) 5 Met. (Mass.) 118, supra, VI. a, where the court expressed doubt as to evidence of an estoppel, and suggested that the case be tried in a law court.

See also dictum in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, infra, VI. p.

But unless the facts show very clearly that the plaintiff either expressly or impliedly consented that defendant should pollute the stream to the extent to which he did, the de