the commencement of the prescription period, the court was bound to enjoin the wrongful excess; and that "if it be found impossible to separate the illegal excess from the legal user the wrongdoer must bear the consequences of any amount of prohibition necessary to restrain the excess, even if it unavoidably extends to a total restriction of the user."

The decision in McIntyre Bros. v. McGavin [1893] A. C. (Eng.) 268 H. L. (a Scotch case), apparently was that the lower owner was entitled to enjoin the pollution of the stream, notwithstanding a prescriptive right to pollute to a lesser extent at another point, since the defender had no right to make the alteration unless he could show that the change would not injure a lower owner.

In enjoining the defendants' pollution of a brook by discharges from their bleachery, where an easement was asserted under the doctrine of a lost modern grant, or alternately under the provisions of the Prescription Act, by virtue of an open and uninterrupted enjoyment as of right for more than twenty years in either case, the court in Hulley v. Silversprings Bleachery Co. [1922] 2 Ch. (Eng.) 268, held that the easement claimed was not in fact enjoyed as of right during the statutory period, it being shown that defendants' predecessor had at first discharged refuse into the brook surreptitiously and had subsequently used cinders as a filter, and that the defendants had within twenty years moved the place of discharge to a point a little nearer to plaintiff and greatly increased the amount discharged, at the same time improving the filtration system, and making the pollution more continuous, although perhaps less noxious. The court further said that the progressive increase in defendants' plant, and in the volume of water polluted, was destructive of that certainty and uniformity asserted for the measurement and determination of the user by which the extent of the prescriptive right was to be ascertained, and, observing that the pollution violated the Rivers Pollution Prevention Act, it concluded that "a lost grant

cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail." And there being also evidence that defendants had made payments to certain lower proprietors, in some cases "without prejudice" and in others without using such a reservation, the court said. that it was unnecessary to decide how far the payments and other considerations could be used by plaintiff to negative an enjoyment as of right, but that it was difficult to reconcile such conduct with a continuous assertion of a right to inflict the injury for which such payments were made and treated as compensation.

The plaintiff's view, however, that the time during which a woman, one of the defendants, was married, must be excluded under the Prescription Act from the computation of the twenty years, she having been under coverture during that time, was overruled in Hulley v. Silversprings Bleachery Co. (Eng.) supra, upon the ground that under the Married Women's Property Act she was released from her former disability so as to be capable of resisting a claim to an easement under the former act, and that accordingly the exclusion provision was not applicable to her.

In Hunter v. Richards (1911) 26 Ont. L. Rep. 458, 5 D. L. R. 116, affirmed in (1913) 28 Ont. L. Rep. 267, 12 D. L. R. 503, where defendants claimed a prescriptive right at common law and also under a statute, by reason of over thirty years' adverse use, the lower court pointed out that the sawmill was originally a small one, that improvements were added from time to time, and that the pollution did not materially affect plaintiff until within a few years. It further considered that defendants' user was interrupted by the erection of a burner, for the purpose of destroying the refuse, and that it was at all times contentious and objected to.

The appellate court in Hunter v.

Richards (Ont.) supra, apparently took the view, as did the lower court, that certain payments made by the defendants operated as an acknowledgment that they did not have the right to pollute the stream to the extent to which they did pollute it. And, in reply to the contention that the payments were only for injuries done over and above the prescriptive right, the lower court declared that no suggestion was made that a limited prescriptive right was claimed, or that the payment was for the excess.

And the lower court in Hunter v. Richards (Ont.) supra, further considered that the statute forbidding the throwing of rubbish into any stream flowing into a navigable water was applicable, so as to prevent defendants gaining a prescriptive right.

And the fiction of a lost grant was unsuccessfully resorted to as a defense in Hunter v. Richards (Ont.) supra. In connection with this defense, the appellate court declared that upon the whole evidence it could not reasonably find a grant from anyone, at any time, giving defendants the present right to injure plaintiff's land as they were doing, nor that there was any reasonable evidence of possession from which such a grant might be presumed; and, commenting upon the privileges commonly permitted during the early settlement of the country as having been gradually withdrawn, it said that the fouling of streams by early settlers was seldom done as of right, "but only as of neighborliness, tacit license." The dissenting judge below took the view that the lost grant should be inferred from the circumstances.

In overruling the defense of prescriptive right in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522, the court remarked that the materials which were used by defendant for about thirty years, or until a recent date, were substantially different from those used at the time of suit, and also that the effluent was formerly much less in amount and less noxious that at present.

But in the common pleas decision of Warren v. Hunter (1853) 1 Phila. (Pa.) 414, supra, VI. m, the denial of

an injunction was based largely upon the ground that the defendants had acquired the prescriptive right to corrupt the stream in question by depositing dyestuff and other deleterious substances therein, since they and their ancestors had for more than twenty-one years had the unrestricted use of such stream in the manner and for the purposes for which they used it at the time of suit, without objection from anyone; the court taking the view that, although the pollution had recently increased, such increase was not sufficiently traced to the defendant.

And in Baxendale v. McMurray (1867) L. R. 2 Ch. (Eng.) 790, a defense of prescriptive right, based upon the pollution of a river by a paper manufacturer for more than twenty years, prevailed over plaintiff's claim that the pollution had so increased recently by reason of the substitution of a different raw material, as to diminish the value of plaintiff's house and ornamental grounds, the court considering that, while the defendant had the right to discharge into the river the refuse produced at his mills, using the materials which were proper for the purpose, but not increasing to any substantial or tangible degree the amount of pollution, the plaintiff had failed to discharge the onus of proving that a greater amount of pollution and injury arose from the use of the new material.

It was apparently recognized in Buccleuch v. Cowan (1866) 5 Sc. Sess. Cas. 3d series, 214, as cited in 4 Scots' Dig. col. 391, that the fact that the stream had been from time immemorial devoted to a secondary purpose, such as manufacturing, would supersede and abrogate the primary purpose for which the lower proprietor used the stream.

In Weir v. Claude (1889) 16 Can. S. C. 575, affirming (1888) Montreal L. R. 4 Q. B. (Quebec) 197, which reversed (1886) Montreal L. R, 2 S. C. 326, the refusal (under the civil law) of an injunction which a recent summer resident sought against the owner of a tannery seemed to be largely based upon the fact that such owner

and his predecessors had from time immemorial carried on that business, and that the inhabitants of the village had consented to the use made of the stream.

Although the question of prescription was not apparently involved in Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96, the court remarked that if the right, by grant or prescription, to pollute the stream were shown to exist, the only recourse which the complainants could have would be the acquisition of the right by purchase or condemnation.

And see Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, supra, VI. a, where the court considered that a doubtful case should be tried at law.

As to a claim by plaintiff that defendant might acquire a prescriptive right, see cases in subd. III. b, supra, and also Brookline v. Mackintosh (1882) 133 Mass. 215, as set out in subd. IV., supra. And as to a plaintiff's claim of having acquired a prescriptive right, see the dissenting opinion in Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, as referred to in subd. III. c, 2, supra.

p. Stream artificial.

In enjoining the pollution of water in a canal, by a manufacturer who emptied refuse into the river which supplied the canal, it was said in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, that the complainant's right to enjoy the canal free from pollution was none the less because it was an artificial stream.

In Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, it was contended that the river in question could not be called a natural stream, but that it was almost entirely an artificial one, flowing from and supplied by reservoirs constructed above, at the joint expense of all the mills, and that therefore the general law did not apply. The court said that it could not so understand it, and that, unless at the time of the construction of the reservoirs, there was some agreement among the mill

owners, by which they would be estopped as against each other from claiming their legal rights, it could not see that the mere fact of turning more water into the stream would alter the former legal rights of the parties.

In reply to the defendant's contention that there was not a living stream of water running through its land when it installed the sewage system, the court in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, said that the evidence abundantly showed that there was such a stream.

In reply to the defense that the stream in question was not a natural one, but was an artificial watercourse or a drain, the vice chancellor in Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, said that in the case at bar it made no substantial difference which it was, it being of a permanent character. He held, however, that it was shown to be a natural stream.

q. Parties; joinder.

In holding that several riparian proprietors were properly joined as pursuers in a single Scotch action, enjoining paper manufacturers from polluting a river in such a way as to render the water unfit for domestic use or for cattle, as were also several of the manufacturers as defenders, it was pointed out in Cowan v. Buccleuch (1876) L. R. 2 App. Cas. (Eng.) 344— H. L., by the Lord Chancellor that, while it would be inconvenient, if not impossible, so to join parties in an action for damages, the present action was of a different nature. And he said that, "as a balance of convenience and inconvenience, it appears to me that, looking at the subjects of relief which are comprised in this summons, the convenience of dealing with these matters of relief in one conjoint action rather than in separate actions preponderates immensely in favor of conjunction," and that much greater latitude has been allowed as to joinder of parties in chancery than at law. Lord O'Hagan observed: "There is here, in reality, only one matter of complaint, the pollution of the river. One remedy is obtained, the issue of an interdict.

To the single result which injures the pursuers, the defenders are contributories in different degrees. But the aim of the proceeding is not to affect each of them apart from the others, but to prevent the one consequence of their combined action. Damages are not sought against them individually. The effort is to abate the mischief they all have wrongfully wrought. Thus regarded, on a consideration of the cases, and on the interpretation to be fairly given to them, the junction of the pursuers appears to me unimpeachable. They have a common interest in the stream, in its purity and its amenity. They suffer from a common grievance in its pollution. That grievance is created by the action of men engaged in the same trade, using the same machinery and materials which conduce to the same injurious consequence, and this the pursuers seek to obviate by a single judicial act equally restraining all who have produced it." And Lord Blackburn, remarking that the defenders were located miles apart, considered that sufficient "contingentia" was shown, and that justice as well as convenience made the joinder desirable.

in

Several landowners engaged farming were held to be entitled jointly to maintain a single bill to enjoin the discharge of sawdust into a stream so as to pollute it, rendering the water. unfit for farm use, in Horton v. Fulton (1908) 130 Ga. 466, 60 S. E. 1059.

The contention that the owner of farming and grazing land could not intervene, where another had sued to enjoin the pollution of a river by the threatened removal from it of a sand bar, but that he should sue independently, was overruled in Houston Transp. Co. v. San Jacinto Rice Co. (1914) - Tex. Civ. App., 163 S. W. 1023, the court stating that the lands of the original plaintiff and of the intervener immediately adjoined upon the river, and that both parties had a common complaint against defendants for an injury of the same kind inflicted by the same acts.

As already noted in Com. ex rel. McCormick v. Russell (1896) 172 Pa. 506, 33 Atl. 709, supra, VI. k, the state has

been held to have been properly joined as a party plaintiff to enjoin the pollution of a public water supply, where the suit was instituted by the concern furnishing the water to a borough.

The joinder of various landowners as complainants was apparently not objected to in Barrett v. Mt. Greenwood Cemetery Asso. (1896) 159 Ill. 385, 31 L.R.A. 109, 50 Am. St. Rep. 168, 42 N. E. 891, reversing (1895) 57 Ill. App. 401, enjoining a threatened pollution.

And in Strobel v. Kerr Salt Co. (1900) 164 N. Y. 303, 51 L.R.A. 687, 79 Am. St. Rep. 643, 58 N. E. 142, 21 Mor. Min. Rep. 38, reversing (1897) 24 App. Div. 626, 49 N. Y. Supp. 1144, reargument denied in (1900) 165 N. Y. 617, 59 N. E. 1131, supra, III. e, the court observed that the only dispute was as to the degree of the pollution, in granting a decree in favor of the owner of a number of mills, which were located at various distances from the source of the pollution.

The pollution of a river by means of sawdust and other deleterious substances, resulting in the extermination of fish, was enjoined as a public nuisance, in People v. Truckee Lumber Co. (1897) 116 Cal. 397, 39 L.R.A. 581, 58 Am. St. Rep. 183, 48 Pac. 374, on the attorney general's information, without the intervention of a private relator, under a statute defining a public nuisance as "an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or any considerable number of persons." The court overruled the contention that the state's right to protect fish extended only to navigable or otherwise public waters, stating that, while the riparian proprietor had the exclusive right to fish upon his own land, this did not imply or carry the right to destroy what he did not take.

Baylor Female College (1896) Tex. Civ. App. —, 33 S. W. 680.

The defense that the particular board, by reason of an irregularity in its organization, was not authorized by the statute to sue to abate a nuisance by pollution, was overruled in State ex rel. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569, holding that the statute applied to that board.

The defense that a statute permitting the state board of health to sue to enjoin the pollution of any stream or tributary thereof from which a public water supply was taken was repealed by a subsequent statute which conferred upon the state sewerage commission similar, although less extensive, powers, and that the former board was accordingly not authorized to maintain the suit in question, in which the operator of a creamery was enjoined from polluting such a tributary, -was overruled in State ex rel. Board of Health v. Ihnken (1907) 72 N. J. Eq. 865, 69 Atl. 28, holding that only such provisions of the earlier act were repealed as were repugnant to the provisions of the later statute, and that the provision authorizing the suit in question was unaffected.

But it has been held that the pollution of a stream in such a way as to make its waters unfit for the use of individual riparian owners, apart from any injury to the public at large, cannot be enjoined by the state as a public nuisance. State ex rel. Wear v. Springfield Gas & E. Co. (1918) - Mo. App., 204 S. W. 942.

The contention that the provincial attorney general alone was entitled to take proceedings to enjoin a public nuisance, rather than the Attorney General of the Dominion, was overruled in granting an injunction sought by the latter to enjoin the discharge of fish offal into a river in Atty. Gen. v. Ewen (1895) 3 B. C. 468, the court observing that, while the former might proceed in respect to the nuisance, the Dominion had control of fisheries and conservation of the water.

The defense that the suit should have been brought only against the lessees, who were operating the canal,

was overruled in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, where the lease was soon to expire and the proprietors asserted their right to allow the polluted water to flow through the canal, and admitted that they would probably continue to do so.

However, in Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, one ground for the decision against the plaintiff, owner of a mill which was being operated by a lessee, was that he should have joined the lessee as a party.

The objection that the bill was multifarious, in that it sought to enjoin forty defendants from polluting the creek in question, was overruled in Warren v. Parkhurst (1906) 186 N. Y. 45, 6 L.R.A. (N.S.) 1149, 78 N. E. 579, 9 Ann. Cas. 512 (affirming (1905) 105 App. Div. 239, 93 N. Y. Supp. 1009). The opinion distinguishes between suits for injunction and those for damages as regards the joinder of parties contributing to the injury. (In this connection, see annotations in 9 A.L.R. 939, 947, 952, and 35 A.L.R. 409, 412, [Joint Creditors and Debtors, § 7].)

In holding to be warranted a decree enjoining several defendants from polluting a stream, it was said in Glassell v. Verdugo (1895) 108 Cal. 503, 41 Pac. 403, that, if some of them had not polluted and did not propose to pollute the water, the fact that in this respect the injunction did not discriminate between them and the other defendants who were polluting it would do no harm.

A bill to enjoin the pollution of a stream, sued out during the defendant's life, will not survive against his personal representative carrying on the business, after defendant's death more than six months later, a statute permitting a survival as to injuries committed within six months being inapplicable. Kirk v. Todd (1882) L. R. 21 Ch. Div. (Eng.) 484-C. A.

It appears from a reference in 2 Scots' Dig. 1873-1904, col. 2384, to Buccleuch v. Brown (1874) 1 Sc. Sess. Cas. 4th series, 1111, that the interdict was granted against the discharge of polluting matter, where at the date of the verdict the respondents were