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danger threatened is of such a nature that it cannot easily be remedied in case of a refusal of relief, and the answer does not deny that the act charged is contemplated, an interlocutory injunction will be allowed, unless the equities of the bill are satisfactorily refuted by the defendant."

In restraining a lumber company from depositing refuse material in a river, where it clogged the machinery of a cotton mill, it was said in Lockwood Co. v. Lawrence (1885) 77 Me. 297, 52 Am. Rep. 763: "Nuisances and injuries affecting waters, including the obstruction, diversion, or pollution of streams, afford frequent ground for equitable interference, on the principle of restraining irreparable mischief. The jurisdiction of equity in this class of cases may be regarded as ancient and well established. Especially is this true when the acts complained of are of such a character that irreparable injur, will result to the complainant without such interference, or when adequate compensation for the injury arising therefrom may not be obtained at law, or, if continued, would lead to a multiplicity of suits. Whenever this is admitted, or established by proof, a court of equity may, by injunction, restrain the continuance of such acts."

And, in restraining the pollution of a river by a manufacturer, the court in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, adopted the statement of the court below in (1893; C. C.) 53 Fed. 970, that "where the right of a riparian proprietor to the use and enjoyment of the flow of a stream of pure and wholesome water, free from corruption and pollution, has been actually invaded, and such invasion is necessarily to be continuing, and to operate prospectively and indefinitely, and the extent of the injurious consequences is contingent and of doubtful pecuniary estimation, the writ of injunction is not only permissible, but it affords the only adequate and complete remedy."

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

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App., 163 S. W. 1023, the proposition was thus stated: "Riparian rights are property, which will be protected by the courts. And to a riparian proprietor whose right to the use and enjoyment of the flow of a stream of pure and wholesome water free from pollution has been actually, or is about to be, invaded, injunctive relief will be granted, where such invasion, or threatened invasion, will be continuing, and the extent of the injurious consequences is contingent and of doubtful pecuniary extent."

In Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, it was stated as a general proposition that where parties had established at law their right to pure water, "and another person comes and erects works on the same stream above their works, and by his manufacturing process so fouls the water of the stream as seriously and continuously to obstruct the effective carrying on of their manufacture; and if the granting of an injunction will restore or tend to restore those parties to the position in which they previously stood, and in which they have a right to stand, and if the injury complained of is of such a nature that damages will not be an adequate compensation, that is, such a compensation as will in effect, though not in specie, place them in the position in which they previously stood; and if, moreover (for there are several conditions), they use due diligence in vindicating their rights, they have, in general, a right to come to a court of equity and say, 'Do not leave us to bring action after action for the purpose of recovering damages, but interfere with a strong hand, and prevent the continuance of the acts we complain of, in order that our legal right may be protected and preserved to us'"-the court adding that in such a case it must have regard not only to the "dry strict rights" of the parties, "but also to the surrounding circumstances,

the

rights or interests of other persons which may be more or less involved;" and explaining that it used the term "continuously" as meaning 'frequent

ly recurring" rather than "never ceasing."

In 4 Scots' Dig. cols. 390 and 391, it is stated that Buccleuch v. Cowan (1866) 5 Sc. Sess. Cas. 3d series, 214, held that where, in an action at the instance of proprietors of lands on the banks of a private stream against paper manufacturers, whose works were situated at different places on the banks of the stream, to have the defenders interdicted from polluting the stream, separate issues as against each of the defenders were sent to trial before the jury, the presiding judge properly ruled that it was "sufficient to entitle a pursuer to a verdict on any one of the issues, to prove that the river is polluted by the mills belonging to the defenders generally, to the effect of producing a nuisance to him, and that the defenders in that issue materially contribute to the production of the nuisance to him."

III. Particular consideration.

a. Continuance of injury indicated by that already suffered.

In most of the decisions cited above, of which the following may be regarded as typical instances, the decree was based upon proof that the plaintiff had already suffered an actual injury from defendant's pollution, the conditions thereby being such that it could reasonably be inferred that a continuance of the injury would necessarily follow unless enjoined. Incidental reference to other cases of this sort will be found in many of the subdivisions herein.

Thus, in Snow v. Williams (1879) 16 Hun (N. Y.) 368, a farm owner was held to be entitled to a decree enjoining the discharge into a creek of the surplus whey and other refuse from a cheese factory, where it rendered the water unfit for use, the court observing that it was apparent that the farm would be materially lessened in value if the nuisance were permitted to continue.

In Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, granting an injunction to restrain the pollution of water which was used in making ice for domestic 46 A.L.R.-2.

purposes, it was said that, when a corporation obtains a standing in court by reason of its having suffered special damage, although it can only maintain its suit for an injunction on that ground, still the court will grant relief, not solely because the nuisance is private, so far as the complainant is concerned, but because the relief will inure to the public benefit.

The proprietor of a flour mill was held in Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, to be entitled to enjoin, as a public nuisance, a butcher from materially contributing to the pollution of the former's mill race by discharging into it offal from his slaughterhouse, where the pollution had made the former's employees sick, necessitated the closing of the mill at times, and lessened the value of the mill.

A hospital was held to be entitled to enjoin the contamination by a sewer of a stream the water of which was apparently used for drinking, in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, where the court said that the evidence established the fact that the defendant was materially contributing to the pollution of the stream in a manner calculated to do serious injury to the inmates of the hospital, and seriously to injure the plaintiff itself.

A concern which had built houses and a sewer on its tract of land was enjoined from polluting the stream into which the sewer emptied, at the instance of a landowner through whose land the stream passed, in the reported case (CARETTI V. BRORING BLDG. Co. ante, 1), the court being satisfied that the pollution caused by the sewer added materially to that which had previously existed, and prevented the use of his property for bathing purposes and for the watering of geese and cattle.

And in holding that a similar concern should be enjoined from maintaining its sewerage system in such a way as to make a stream unfit for a lower landowner's horses and cows, the court said in Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120

(1914) Tex. Civ. App.
1023.

also upon a subsequent appeal in
(1899) 42 App. Div. 409, 59 N. Y.
Supp. 203, which was reversed on
other grounds in (1901) 167 N. Y.
462, 60 N. E. 757.

And in Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468, the court said that it could not doubt "that the plaintiff is entitled to an injunction to restrain the defendant from continuing to pollute the stream, in order to prevent it from gaining a prescriptive right, even though such pollution does not interfere with any use of the water which the plaintiff is now making."

A decree was held to be warranted in Mann v. Des Moines Water Co. (1913) 121 C. C. A. 220, 202 Fed. 862, which enjoined the threatened pollution of a water supply by the removal of sand from the bed of a stream, where the sand served the purpose of filtering the water which passed through it into galleries, it being shown by water analyses that the removal of the sand materially impaired the filtering process by permitting impurities to pass through.

a

In holding plaintiff entitled to a modified injunction to restrain threatened injury from pollution, the court, in Storm King Paper Co. v. Firth Carpet Co. (1917) 184 App. Div. 514, 172 N. Y. Supp. 33, considered that plaintiff had not shown that its product had been actually injured.

The Cwner of a house was held to be entitled to enjoin the proposed construction, by the owner of a sewage system, of a septic tank of certain dimensions on land near the house, upon showing that a creek would thereby be polluted, in Cardwell v. Austin (1914) Tex. Civ. App. 168 S. W. 385.

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And the owner of land bordering on a river where the tide ebbed and flowed was held to be entitled to enjoin the threatened removal of a sand bar therein, where its removal would have the effect of permitting the salt water to come up to his land and thus render the water unfit for drinking, grazing and farming, in Houston Transp. Co. v. San Jacinto Rice Co.

163 S. W.

In enjoining the continuance of a dam which caused polluted water from sewers to accumulate in a creek, where it was disputed whether disease had already resulted, it was said in New Castle City v. Raney (1888) 6 Pa. Co. Ct. 87, that, since the pollution was known to be dangerous to public health and to be increasing in degree, a preventive remedy should be granted without waiting for an epidemic actually to occur.

The threatened pollution of a stream was enjoined in Rarick v. Smith (1896) 17 Pa. Co. Ct. 627, 5 Pa. Dist. R. 530, where it was shown that upon a former occasion, when defendant manufactured dynamite,

the stream had become so polluted as to kill fish and vegetation, as well as to affect its value as water power by corroding machinery, and that defendant intended to resume his former operations in the same way.

In Fisher v. Doolittle (1912) 3 Ont. Week. N. 1417, 22 Ont. Week. Rep. 445, 5 D. L. R. 549, Meredith, J. A., said that even if there had been no appreciable damage from the pollution, the fact that the wrong might in time grow into a right would be an abundant reason for stopping the wrong.

And Seafield v. Kemp (1899) 1 Sc. Sess. Cas. 5th series, 402, is stated in 2 Scots' Dig. 1873-1904, col. 2384, to have held that a riparian proprietor with a right to salmon fishing could prevent the pollution of the stream higher up, where it did not directly affect the water ex adverso of his lands, but did nevertheless injure spawning beds up the river to the prejudice of his fishing.

But in Atty. Gen. v. Steward (1869) 20 N. J. Eq. 415, supra, it was said that whether an injury would result from erecting a slaughterhouse so near to vacant lots held for sale for building purposes, for which the law would give redress before any buildings were erected, where defendant proposed to wash refuse into a stream if it should be found impracticable to remove it otherwise, should be deter

mined at law, and that the injury was not such as called upon the equity court to interfere until the question had been determined at law, at least not by a preliminary injunction.

discover some means for rendering the liquid innocuous, and that meanwhile it could be left out of the river by some contrivances, such as tanks and pumps. And it was said that the danger was not imminent, since it must be some years before enough liquid would get into the river to injure plaintiff, and it could be discovered in time to obtain relief then; the court also considering that the danger from the slipping of the bank and breaking of the canal wall was slight.

So, in refusing to grant an injunction to restrain a threatened pollution of a river, in Fletcher v. Bealey (1885) L. R. 28 Ch. Div. (Eng.) 688, Pearson, J., asserting that the action was admittedly brought not to obtain damages for a past injury, but to prevent that which was feared as a future injury, being what was technically a quia timet action, thus laid down the necessary ingredients of such an action: "There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action." It appeared that the defendant, an alkali manufacturer, was dumping "vat waste" upon land about a mile and a half up the river and adjacent to a canal, that in time a highly dangerous liquid would flow from the heap of such waste, which would damage plaintiff, a manufacturer of fine papers, if it should get into the river; it being shown, further, that some of the land at the river bank was likely to slip into the river, carrying the heap with it, and that the wall which held the canal up was likely to fall in such a way as to force the heap into the river, and that in fact it had broken in places. But, notwithstanding all this, and that it was impossible to filter pollution of this sort, the court, conceding pending," and that it was well settled

So, it was declared that "apprehended danger is indeed a ground for issuing an injunction, but it must be apprehended upon a state of facts which shows it to be real and immediate," in Brookline v. Mackintosh (1882) 133 Mass. 215, holding that there was no such danger where, although the river from which the plaintiff town's water supply was obtained was polluted at defendant's factory, about 4,000 feet upstream from plaintiff's filtering gallery, the town did not take the water directly from the river, and such pollution was not shown to have any perceptible effect on the water at the filtration plant below. And, in refusing to grant an injunction, the court recognized the possibility that the water below might become polluted, in case the plaintiff should decide to pump directly from the river, observing, however, it had no intention of doing so; and also recognized that the possible pollution upstream might increase in proportion as the defendant's operations increased.

that the risk was increasing, held that the evidence was not sufficient to justify an injunction, taking the view that in time science probably would

In reference to such a pollution as would amount to a nuisance, as distinguished from a pollution expressly denounced by statute, the court in Durham v. Eno Cotton Mills (1907) 144 N. C. 205, 11 L.R.A. (N.S.) 1163, 57 S. E. 465, said that, before an injunction would issue, the plaintiff "must make out a case, not of theoretical and possible, but of actual and real, injury present or certainly im

in that state that equity would not restrain a private nuisance that was merely dubious, possible, or contingent.

And as a ground for claiming an injunction, the plaintiff town in Brookline v. Mackintosh (Mass.) supra, unsuccessfully contended that it had taken by implication any right, prescriptive or otherwise, to foul the river in the exercise of a manufacture. The court held that such an implication was not warranted, since the penalties provided by the statute under which it took its water supply applied only to water actually taken. And it further said that it was settled that "when a person is asserting a right which at the time does no damage, but which may operate by long continuance to destroy or diminish the right of the plaintiff, even if that right is not then exercised by the plaintiff and there is no present intention of exercising it, he will be restrained by injunction," and conceded that if the defendant, by his present conduct, would gain any right on his own part which he did not at that time possess, and which would prevent plaintiff taking the water directly from the stream, a good reason why he should be enjoined would be afforded. It held, however, that defendant could not acquire any such right, since a statute expressly prohibited the discharge of refuse into 2 stream at any point within 20 miles above where the water supply of a town was obtained, in such a way as to be deleterious to public health, and so impliedly prevented the prescription for such a use of a source of water supply from running. (See further reference to this case in subd. IV. infra.)

And, in holding to be unwarranted. a decree which enjoined a dairyman from polluting a creek, it was said in Spring Valley Waterworks v. Fifield (1902) 136 Cal. 14, 68 Pac. 108, that it was a serious matter to destroy defendant's business by a judicial decree, and that it could not be done upon the mere surmise that certain of his acts might injure the plaintiff.

The refusal to enjoin a threatened pollution of a creek, by the proposed construction of a ditch for the purpose of drawing off water in a res

ervoir charged with alkali, was held to be warranted in Cushman v. Highland Ditch Co. (1893) 3 Colo. App. 437, 33 Pac. 344, where the evidence was conflicting as to whether the lands of the complainants, who appropriated the waters of the creek for irrigation, would be permanently injured, or whether the water would be purified by the flushing of the reservoir. The court observed that if, after the actual construction of the ditch, the complainants were able to show that the pollution would in fact permanently injure their land, they would then have the right to file a bill to restrain the use of the reservoir.

c. Purpose for which stream used.
1. By plaintiff.

Although as a rule the courts do not appear to differentiate particularly as to the nature of the use which the plaintiff makes of the stream, they have granted injunctions to protect plaintiff's use of the water for various purposes, some of the more common uses being noted in this subdivision. And the character of the use made by plaintiff is also indicated in many of the cases which are set out in other subdivisions. (See particularly subds. III. c, 2, and VI. d, infra.) While the reasonableness of plaintiff's use does not seem to have been discussed as a rule in the cases granting injunctions, it appears to have been generally held or assumed that the plaintiff's particular use or uses were reasonable.

As distinct equitable ground upon which the injunction was granted in Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, it appeared that defendant purchased its property with full knowledge of complainant's rights, the latter having notified the former, before purchasing, of the uses which he was making of the water, and that the former should not interfere with such uses; and, further, that, upon defendant applying for a corporate charter, complainant objected, until a proviso was inserted therein which stated that the corporation would not use the water

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