fense of estoppel will not as a rule prevail.

Thus, in reply to the contention that plaintiff had so acted, by encouraging the erection of defendant's factory, by acquiescing in the use of the stream, and by delay in complaining of the injurious effects of such use, as to preclude him from claiming injunctive relief, it was said in Snow v. Williams (1879) 16 Hun (N. Y.) 468: "The doctrine of estoppel, based upon encouragement or acquiescence, rests upon the ground that the party has so acted as that an attempt on his part to stop the nuisance or recover damages therefrom would be a positive fraud. If, therefore, the thing was something which might or might not become a nuisance, according to the circumstances of its use, he would not be estopped unless he knew the precise method of its use, and was fairly chargeable with notice of its results. . . There is no finding and no evidence that when the plaintiff aided and encouraged the erection of the factory, he knew or had reason to suppose that the injurious results above stated would follow. The extent of the case on that point is that he knew that it was the custom of cheese factories, in that section of country, to discharge their surplus whey into the streams on which they were situated. It also appears that, when the subject of discharging the surplus whey from the proposed factory into Elm creek was talked of in his hearing, he did not object to it. For aught that appears, he and all parties concerned may have expected at that time, that the water of the stream would carry away all the refuse matter proposed to be thrown into it, and no nuisance would be created on the plaintiff's premises. In these circumstances he is not estopped by anything that occurred before the factory was put in operation. It is highly unreasonable to suppose that he anticipated and consented that his farm should be injured and himself annoyed to the extent found by the referee. . . . Mere delay, so long as the parties remain in statu quo, will not deprive a party of equitable relief, unless the lapse of

time is so great as to create a right by prescription. . The circumstance that the defendants purchased the title in the meantime does not devest the plaintiff of his right to relief. The purchase was not induced by any action or representation on his part. The defendants knew at the time of the purchase, that the use which their grantor had made of the stream was a nuisance to the plaintiff, and they took the risk of his asserting his equitable rights in respect to it.”

And see State ex rel. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569, supra, VI. j.

A landowner was held in Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, not to be estopped to enjoin a manufacturer from polluting the stream, by reason of the fact that he had made a donation to induce the latter to construct his plant, nor by his having stood by while the plant was erected, where he had no knowledge or notice of the intended corruption of the stream, the court observing that the plaintiff had the right to believe that the defendant would conduct his business lawfully, without injuring the former's property, and that where a party acts in excusable ignorance of a material fact he is not thereby estopped.

One who did not know, and had no means of knowing, that the water in a river would be polluted by the construction of a factory, was held not estopped from enjoining such pollution, by mere knowledge that the factory was to be built and failure to object to it, in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000.

In overruling the defense of estoppel, which was based upon the theory that plaintiff had full knowledge that defendant was making certain improvements and of their (general) purpose, all of which was done without the former's protest or notice that defendant would not be permitted the use of the stream to discharge the refuse of his distillery, the court in Schumacher v. Shawhan (1902) 93 Mo. App. 573, 67 S. W. 717, said that it

could not see how such conduct on the part of the plaintiff would act as an estoppel, since the defendant did not disclose the purpose of rendering the water unfit for use, so the plaintiff did not consent to such a use. And the court observed that the presumption was that one improving his property was doing it for a lawful purpose, and not for the purpose of injuring his neighbor.

And in holding the company entitled to enjoin the removal of sand from the bed of a stream in such a way as to impair the filtering of the water into its galleries, it was said in Mann v. Des Moines Water Co. (1913) 121 C. C. A. 220, 202 Fed. 862, in overruling the defense of estoppel, that it could make little difference whether or not the complainant at any time gave the defendant permission to remove sand, or whether complainant itself employed similar instrumentalities in repairing and reconstructing its plant.

The fact that plaintiff bought its land when the defendant's mill was already in operation was said to be immaterial, in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210,-a decision on other grounds upon a subsequent appeai in (1899) 42 App. Div. 409, 59 N. Y. Supp. 203, being reversed in (1901) 167 N. Y. 462, 60 N. E. 757.

The defense that plaintiff acquiesced in the use which defendant was making of a stream was urged in McCallum v. Germantown Water Co. (1867) 54 Pa. 40, 93 Am. Dec. 656, in addition to the defense of prescription, but the court rested its decision against defendant on the latter ground, without referring to the defense of acquiescence.

The defense that plaintiff had notice and full knowledge of the manner and results of defendant's business prior to establishing it, and consented thereto, was set up in Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, but apparently was not relied upon, for, in deciding against the defendant, the court seemed to ignore such defense.

The contention that plaintiffs had

acquiesced in defendant's mode of carrying on its business, and had lain by while it or its predecessors had expended large sums on the works, was overruled in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522.

And that an alleged acquiescence in a previous pollution by a chemical establishment on the same site as the one recently erected, where the former one ceased to exist for twenty-eight years, would not preclude the granting of an injunction against the pollution of the stream by the latter, see Rigby v. Downie (1872) 10 Sc. Sess. Cas. 3d series, 568, as cited in 4 Scots' Dig. col. 390.

o. Prescriptive right to pollute; "lost grant."

As to the defense that the pollution was expressly authorized, see subd. VI. j, supra.

In numerous cases the defense of a prescriptive right to pollute has been interposed, but the single English decision of Baxendale v. McMurray

(1867) L. R. 2 Ch. (Eng.) 790, infra, seems to be about the only direct authority in which a bill against a private person or corporation for polluting a stream has been successfully defended squarely on this ground. It has been generally recognized, however, that, so far as the particular pollution constitutes a purely private nuisance, the defendant might in a proper case be permitted to establish a prescriptive right so as to preclude plaintiff from obtaining an injunction, although there seems to be no dissent from the proposition that a prescriptive right to pollute cannot be acquired so as to justify a public nuisance.

In view of the negative character of the decisions, there is little basis for a statement indicating upon what condition a prescriptive right might be acquired, although probably the rules governing the acquisition of prescriptive rights would be applicable to the use of the stream for pollution in like manner as they apply to the use of property generally.

In reply to the defense of a prescriptive right, which was based upon the ground that the stream had been used

for over twenty years for manufacturing purposes, the chancellor in Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, said that the fact of the adverse user was not established, stressing the point that defendant could acquire no right by prescription until it could show that the acts claimed to constitute the adverse user injured the complainant; and declaring that it was not shown that the discharges into the stream had previously been of such a character and amount as to pollute the water on complainant's land. And, applying the principle that the right acquired must be commensurate in character and extent with the enjoyment, he observed that the previous practice of throwing sawdust into the stream could not establish the right of discharging into it poisonous and noxious drugs, and that the extent of the previous manufacturing operations of dyeing or hatting was not shown.

In Merrifield v. Lombard (1866) 13 Allen (Mass.) 16, 90 Am. Dec. 172, supra, II. a, it was contended that, for more than twenty years before the plaintiff's factory was built, the defendant had used the stream in the manner complained of, although it was agreed that there had been no perceptible injurious effect therefrom except in the last eight years; but the court observed that no fact appeared from which any right by grant, prescriptive or adverse use, was shown to exist.

As to the defense that the pollution of the stream was sanctioned by prescription, and that the decree should be limited to enjoin only whatever refuse should be in excess of what defendant had the right to discharge, it was said in McCallum v. Germantown Water Co. (1867) 54 Pa. 40, 93 Am. Dec. 656, where it was shown that the pollution was caused entirely by defendant's recent discharge into the stream, of refuse in connection with its manufacture of blankets, and that during its previous long-continued manufacture of carpets it had not polluted the stream: "If, therefore, an upper riparian proprietor claims the right to pollute the stream by prescription or a user of twenty-one years,

by an analogy to the Statute of Limitations, he cannot pollute the water to any greater extent than it was polluted at the commencement of the twentyone years. That is to say, if the pollution at that period was slight or not injurious to any extent, he cannot, at any time within that period, increase it five or ten fold, so as entirely to destroy the water for drinking and domestic purposes. The right must be measured by the enjoyment, and it gives no right to use it in a different and more extensive manner. Previous to 1861, the water was fit for drinking and all domestic purposes, and every precaution had been adopted at the works of the company to exclude all impurities. There was, therefore, no right gained by user to pollute the water, so as to unfit it for drinking, before that period; the actual pollution afterwards is unprotected by prescription, and was simply both a public and a private nuisance."

As to the defense of prescriptive right to pollute the stream, which was urged by the operator of the slaughterhouse in Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, the court observed that the plaintiff's right to the free and unobstructed use of the stream to operate his mill had become a prescriptive right, "which no prescriptive right to use the stream for a sewer way, if such exists, could countervail;" and, furthermore, that the wrong complained of, and disclosed by the evidence, amounted to a public nuisance, for which there could be no prescription. And, after asserting that the pollution did not give any trouble of material importance until about eight years previously, and that the plaintiff could not be expected to sue until his righ was interfered with, the court stated: "If he had complained sooner he might have been unable to make out a case of such interference with the reasonable enjoyment of his property as would have entitled him to the aid of a court of equity. Until he received some substantial injury, he could not be expected to sue, and so there could be no prescription as against his right to the free user of the water, until that ríght was inter

fered with for the purpose for which he used it, and then only to the extent of that interference."

In Martin v. Gleason (1885) 139 Mass. 183, 29 N. E. 664, the court replied to the contention that the defendant had the prescriptive right to pollute the brook in question, by holding that under a statute which gave the city the right to take the waters of a lake, and of all ponds and streams within 4 miles of it, the city might take any such prescriptive right, and that it did in fact take all the rights in such brook,-observing that it was not necessary for it to take the land on both sides of the brook in order to extinguish any prescriptive right to pollute it; and said, further, that such a right could not be acquired after the city's taking, "because the fouling of the water, since the right to foul it ceased, would be a public nuisance."

And a prescriptive right to use a stream as a place of deposit for offal from a slaughterhouse was held to be no defense to a suit by a private party who had suffered special injury thereby, to enjoin such pollution, where it amounted to a public nuisance, in Bowen v. Wendt (1894) 103 Cal. 236, 37 Pac. 149.

In Meiners v. Frederick Miller Brewing Co. (1890) 78 Wis. 364, 10 L.R.A. 586, 47 N. W. 430, where the owner of land contiguous to a brewery sought to abate its fouling a stream, alleging that the health of all persons in the neighborhood was menaced, as well as setting up as special injury to himself the depreciation of the value of his property, it was held that defendant could not rely upon its use of the stream in this way for more than twenty years, since the action was essentially for the abatement of a public or common nuisance, as distinguished from a mere private nuisance, the averments of special damage being only necessary to show plaintiff's right to bring a private action to abate such a nuisance.

In overruling the defense of prescriptive right, which was based on the use of the stream for about forty years for disposing of refuse from the distillery, it was said in Schumacher v.

Shawhan (1902) 93 Mo. App. 573, 67 S. W. 717, that there had been no complaint until recently that the refuse had been discharged in such a way as to make the water unfit for use, and that the defendant had not acquired any prescriptive right to pollute the water, but had merely a property right; namely, to use the stream in such a way as not to interfere with its use by his neighbors.

In North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co. (1898) 16 Utah. 246, 40 L.R.A. 851, 67 Am. Rep. 607, 52 Pac. 168, defendant's claim of a prescriptive right to draw water into the canal in question was overruled, the court observing, inter alia, that the facts attending defendant's alleged easement were not analogous to those essential to title under the Statute of Limitations, nor to those required to exist to give the right under a statute permitting the use of the water for any useful purpose, such as for domestic purposes or irrigating lands, upon the open, peaceable, uninterrupted, and continuous use for seven years. It was further said that under another statute the mixing of impure water with water used for irrigation and domestic purposes, rendering it unfit for such use, caused a nuisance, and that a prescriptive right to maintain a private nuisance must be adverse, under a claim of right, uninterrupted and continuous for twenty years, with the knowledge and acquiescence of the party whose right was invaded. And the court seemed to consider that, in view of another statutory provision, the befouling of the waters of a canal from which more than three persons obtained water for irrigation, culinary, or other domestic purposes, so that it was unfit for use, created a public nuisance, as to which no prescriptive right whatever could be gained in any event.

The defense of prescriptive right of throwing sawdust or pumice into a brook was denied in Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986, holding such acts to be a nuisance.

In Behnisch v. Cedarburg Dairy Co. (1923) 180 Wis. 34, 192 N. W. 447, where defendant claimed a prescriptive right to empty dairy waste into a

creek, and it appeared that the amount of such waste had been largely increased during the two years immediately preceding the commencement of the action, the court stated that a prescriptive right must necessarily be restricted to its limits when the period of prescription commenced, even though the right be asserted on behalf of the public, and that such a right was not enlarged by the enlarged use enjoyed by those claiming it, but was measured by the extent of the use at the commencement of the prescriptive period.

The defense that the dam holding back polluted water of a creek had been built before the city was established, and that the defendants and their predecessors had possessed their water privilege for seventy years, was overruled in New Castle City v. Raney (1888) 6 Pa. Co. Ct. 87.

The defense of long-continued use of the privilege of taking sand from the river, amounting to an easement, which was pleaded by way of limitation and as a presumption against plaintiff's right to enjoin a threatened pollution from the removal of the sand, was thus overruled in Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ. App. —, 163 S. W. 1023: "As to the taking of sand the right might be acquired by prescription, and, if the bar had been removed, and appellee's lands had been affected by the flood waters for ten years, the prescription right would have been acquired, for in that case there would have been a wrong which the appellees could have redressed by suit, and, from their delay in suing, the presumption of a grant would have arisen, but not so in this case. The appellees had no property rights in the sand, and any taking thereof by the appellants up to the time that it amounted to a removal of the bar, to the extent that it permitted the salt water to flow up to appellees' land, to its injury, inflicted no wrong upon appellees. Being not inimical to their rights, it raised no presumption against them, so appellees could not have prevented or interrupted the taking of sand by appellants by any legal

proceedings until in some way such act of taking threatened to or actually worked injury to their property rights."

In Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, where defendants' claim of a prescriptive right to pollute the stream was based upon ownership by themselves and their predecessors of a dye works for over sixty years, the court found that, while the works had been in existence during that entire period and the stream had been thereby polluted to some extent a good many years before, the right to pollute in connection with the dye works had been abandoned, in view of a disuse for a period of twenty-six years, which immediately preceded defendants' recent construction of a large addition to the works, taking into further consideration the fact that plaintiffs had been allowed to expend large sums of money on their works while the others remained wholly unused; and said that one could not, after a period exceeding by five years the time in which the right might be acquired by any other person, re-establish his right to resume work again, which he had for that period left wholly unoccupied, by a business of a similar description, while other persons had, in the meantime, acquired rights of user in the water.

In Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, where a sewer had discharged into the stream for over forty years, the vice chancellor declared that he knew of no case in which a prescriptive right to foul a stream by sewage. had been held to have been acquired. He stated, further, that he was satisfied that the pollution was dangerous to public health, and not merely a private wrong, independently of an adjudication in another court as to defendant's former pollution.

And in Blackburne v. Somers (Ir.) supra, where the pollution largely increased within the preceding twenty years, it was said that if it had increased either gradually or suddenly, and had, at least to a substantial extent, exceeded the limits existing at