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in such a way as to injure complainant. The injunction in this case was predicated upon the pollution, by a bleachery, of artificial ponds which were fed from the river, upon an extensive estate, these having been stocked with fish and used for domestic purposes, for irrigating the land, for making ice, and for ornamental fountains, the fish having been killed and the water rendered unfit for the other purposes.

In Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, holding that the lower court was warranted in granting the city a decree enjoining the beach resort from using the lake for bathing purposes, upon the theory that this use caused a pollution of the water, the prevailing judges of the equally divided court took the view that the city's use of the water was reasonable and lawful, and the defendant's use was unreasonable and unlawful. They declared that it was unnecessary to predicate the city's right to relief upon the fact that the health of its inhabitants was endangered by defendant's unlawful acts; and observed that the city, as a riparian owner, with but a single resident upon the land who used or was entitled to use the waters of the lake for drinking purposes, would have the absolute right to enjoin its neighbor from making such use of the water as would render it unfit for drinking purposes. The other judges considered that the defendant's use of the water was reasonable and lawful, and that the city, as a mere riparian owner, was not entitled to equitable relief as against the other riparian owner, to aid it in diverting the water to a use other than for riparian purposes.

A decree which enjoined the discharge of house refuse into a ditch, which emptied into a stream feeding some artificial trout ponds, was held to be warranted in Seaman v. Lee (1877) 10 Hun (N. Y.) 607, where it was shown that a large number of the trout were killed.

A bleachery owner was granted an injunction against a paper manufacturer, restraining the latter from fur

ther discharging into the river waste. material, or foreign substance of any kind, calculated to pollute or contaminate the water, in Worthen & Aldrich v. White Spring Paper Co. (1908) 74 N. J. Eq. 647, 70 Atl. 468, affirmed on opinion below in (1909) 75 N. J. Eq. 624, 78 Atl. 1135.

A decree enjoining a sawmill proprietor from polluting a stream by the discharge into it of sawdust and other substances was held to be warranted in Shoffner v. Sutherland (1910) 111 Va. 298, 68 S. E. 996, where it was shown that stock refused to drink the water, that it was made less fit for domestic purposes, and that disease was likely to be caused by such deposits.

In Lawrie v. Silsby (1903) 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106, it was held that nonriparian farmers who acquired from a riparian owner the right to take water from a brook for domestic and farm uses could maintain an action to enjoin the pollution of the water by an upper riparian proprietor.

Upon the ground that its sewage polluted the water of a stream for human drinking purposes, and that this could be readily avoided by the addition, at a reasonable expense, of further preventive devices in connection with its sewage disposal plant, a hospital was enjoined from such pollution, in Bennis v. Free Hospital (1912) 23 Pa. Dist. 971, although the only ground upon which the injunction was sought was that the water was rendered unfit for the use of cattle, and it was shown that the water was not, in fact, unfit for that purpose.

In enjoining the continuance of the discharge of sewage in a stream in such a way as to be deposited on plaintiff's lawn, it was stated in Wana

maker v. Benzon (1916) 63 Pa. Super. Ct. 401, that plaintiff was entitled to enjoy his property in the way he wished.

In Stollmeyer v. Petroleum Development Co. [1918] A. C. (Eng.) 498, note-P. C., a lower riparian owner who was engaged in boring for oil was held to be entitled to enjoin the pol

lution of a stream by an upper riparian owner who was similarly engaged, so far as the pollution 'was caused by the latter's operations independently of natural causes.

Canners were enjoined from depositing fish offal in a river in Atty. Gen. v. Ewen (1895) 3 B. C. 468, where it was shown that this caused fish to desert the river and destroyed fishermen's nets, there being also evidence tending to indicate that it caused typhoid; the court declaring that rights independent of the statute were affected, the right of the public to pure air and water, and the right of the fishermen to carry on their lawful business without the annoyance and nuisance of fish offal injuring their nets.

An interdict against the discharge of sewage or waste water upon lands of a subjacent proprietor, in such a way as to pollute the water and render it unfit for cattle or domestic use, was stated in 4 Scots' Dig. col. 391, to have been granted in Montgomery & Fleming v. Findlay (1853) 15 Sc. Sess. Cas. 2d series, 853.

The proprietor of salmon fisheries in a public navigable tidal river was apparently held to have a title to interdict the river's pollution in Moncreiffe v. Perth Police Comrs. (1886) 13 Sc. Sess. Cas. 4th series, 921, which is cited in 2 Scots' Dig. 1873-1904, col. 2384.

But in McEvoy v. Taylor (1909) 56 Wash. 357, 26 L.R.A. (N.S.) 222, 105 Pac. 851, where plaintiff used the water of a stream in his laundry and bathroom, but not for drinking or culinary purposes, the pollution of such stream, which was fed by a small pond entirely on defendant's land, was held to be a natural incident of the proper and reasonable use of the pond by the latter's horses, cows, and geese. And in Spence V. McDonough (1889) 77 Iowa, 460, 42 N. W. 371, where one of two adjoining farmers claimed, in connection with a suit to enjoin the latter's maintenance of a dam, which deprived the former of water, that the stream was polluted by the latter's hogpen, a decree was held to be unwarranted which enjoined the

damming of the stream in such a way that the water should become stagnant or foul in any manner, and thus unwholesome for the use of plaintiff's stock, since the pollution of which the plaintiff complained was not that which resulted from stagnation, his evidence having been chiefly directed to his use of the water for his own hogs.

2. By defendant.

The nature of the use which defendant makes of the stream is an important consideration in determining whether he should be enjoined from the pollution resulting from such use; in fact the decisions frequently turn upon the question whether such use was justified or reasonable when considered in connection with surrounding circumstances, such as the character and extent of the stream and the nature of plaintiff's use.

And see, in this connection, subd. VI. d, infra.

In subd. II. a, supra, the nature of the defendant's use has been indicated in the cases granting injunctions.

In Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468, where the defendant manufacturer was enjoined from discharging into a brook objectionable substances, such as acids, chemicals, and sewage, in quantities that noticeably or appreciably affected the purity of the waters when they reached plaintiff's premises, or rendered them materially less fit for drinking, domestic, or other uses at that point than they were when they entered defendant's premises, the court said that it regarded it as settled that "no riparian proprietor has the right to use the waters of a natural stream for such purposes, or in such a manner, as will materially corrupt it to the substantial injury of a lower proprietor, or to cast or discharge into it noxious and deleterious substances which will tend to defile the water and make it unfit for use;" although recognizing that water cannot be made available for any manufacturing use without some incidental deterioration of its quality.

And the distinction between a slight

impairment of the quality of the water, which might come from its reasonable use in legitimate manufacturing, and the substantial pollution resulting from an unreasonable use, was also pointed out in MacNamara v. Taft (1908) 196 Mass. 597, 13 L.R.A. (N.S.) 1044, 83 N. E. 310, enjoining a manufacturer from polluting a stream by means of oils and chemicals.

In New York v. Blum (1913) 208 N. Y. 237, 101 N. E. 869, affirming (1912) 151 App. Div. 923, 135 N. Y. Supp. 1104, which modified (1911) 72 Misc. 243, 131 N. Y. Supp. 87, the owner of a duck pond the polluted water from which overflowed at times into the stream which formed part of the city's water supply sought to avoid the decree, by asserting that it constituted an unlawful invasion of his property rights. The court of appeals thus replied to this contention: "The court found that the acts of the defendant are violations of certain rules of the state board of health. The question of preserving potable waters from pollution is growing in importance with the increasing density of the population and the growth of urban communities. But we do not consider it necessary to pass upon the effect of those rules, or to determine what the state may do in the exercise of the police power to prevent the pollution of potable waters in the interest of the public health and the general welfare, because we have reached the conclusion that, wholly apart from said rules, the trial court was justified in deciding that the defendant was making an unreasonable use of the waters of Pine's stream as matter of fact, if not as matter of law. The defendant had the right temporarily to detain or divert the waters of Pine's stream, but the lower riparian owners and we are considering the plaintiff solely as a riparian owner— had the right to have that water. returned in its natural state, save for such slight diminution or pollution as might necessarily occur from a reasonable use. The question in a nutshell is whether it is reasonable for the defendant to divert the water

from its natural channel and to return it, laden with the excreta of his domestic animals, when he can with slight trouble prevent such pollution. It is unimportant that those animals happen to be ducks. The plaintiff does not seek to prevent the defendant from raising ducks. It merely asks that he shall conduct that business with some regard to the rights of others. He can allow his ducks to have access to the ponds, and by a little labor prevent the pollution of the waters of the stream. The appellant argues that the plaintiff is permitted by the judgment virtually to appropriate his land without making compensation therefor, and that, if it can justify the restraint imposed in this case, it may with equal reason restrain the owners of land in the watershed, from which it derives its water supply, from carrying on the business of farming in the usual, ordinary way, e. g., from enriching the soil with fertilizers or from using fields on the banks of the stream for pasturage. That method of reasoning ignores the principles which I have already ventured to state, though they may seem trite. As well might it be said that the appellant could maintain a filthy pigsty on the banks of the stream, because it would require a trifling amount of work to keep it clean. Of course, the plaintiff cannot appropriate the appellant's premises. without making compensation therefor, but it can insist upon his using those premises so as not unreasonably to impair its rights as a lower riparian owner, and we are of the opinion that he is not aggrieved by a judgment which gives him the choice of abating the nuisance himself or of allowing the plaintiff to abate it for him."

See in this connection, for a discussion as to the reasonableness of defendant's use, in connection with that of plaintiff, Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. E. 441, supra, III. e, 1; in which case it was stated, further, by the four judges of the equally divided. court whose views were at variance with the court below, that the city

claimed the injunction upon the theory that it had acquired the right by prescription to take its water supply from the lake; and they asserted that the defendants' riparian rights began before the city's did, and that the city had shown no such adverse use of the water as would ripen into a prescriptive right, but that, even upon the contrary assumption, the city's right would be no more than the right to take the water subject to the use which the defendants and their predecessors in title had made of it since their resort was established.

As to enjoining the damming of a stream in such a way that the water becomes stagnant and polluted by the accumulation of filth, see Board of Health v. Copcutt (1893) 140 N. Y. 12, 23 L.R.A. 485, 35 N. E. 443, affirming (1893) 71 Hun, 149, 24 N. Y. Supp. 625.

A decree which enjoined the hauling of logs across a creek in such a way as to make the city's water muddy was held to be warranted, upon the ground that the defendant's use of the creek was not reasonable, the defendant having used a bridge, resting upon the bed of the creek, which could readily be elevated at slight expense so as to clear the water, in Aberdeen v. Lytle Logging & Mercantile Co. (1910) 58 Wash. 368, 108 Pac. 945, where it was said that any obstruction tending to the pollution of the water might work irreparable mischief, reaching far beyond the inconvenience of the landowners.

A decree was held to be warranted which enjoined the owners of house boats, in which they were living with their families, from anchoring within certain lines drawn around an island, in Paterson v. Dust (1916) 190 Mich. 679, 157 N. W. 353, where it was shown that the neighboring swimming beach became polluted from garbage and nightsoil discharged from the boats into the river, the court observing that the right to navigate did not include the right to anchor indefinitely.

It was held in Red River Roller Mills v. Wright (1883) 30 Minn. 249, 44 Am. Rep. 194, 15 N. W. 167, that where a lower riparian owner who

made a reasonable use of a stream sought to enjoin an upper riparian owner from interfering with such use, either by interruption, diversion, obstruction, or pollution of the water, the burden of proof was upon the latter to show that his own use was reasonable; and that the greater the injury was to the lower owner, the greater necessity for such use must the upper owner show in order to establish its reasonableness; the defendant's use of the stream for discharging sawdust and other refuse being deemed unreasonable under the particular circumstances.

A real estate development concern was held to have been properly enjoined from diverting the water of a river containing sewage, by means of a ditch which came close to plaintiff's land, in Desberger v. University Heights Realty & Development Co. (1907) 126 Mo. App. 206, 102 S. W. 1060. The court said that the bringing of polluted and unsanitary waters into close proximity to his premises, and a continuing flow or deposit of pestilential filth along his boundary line, for all time, was the principal injury of which the plaintiff complained, and that the maintenance of the open sewer was the real gravamen of the complaint. It also asserted that defendant's use of the ditch in this way was unreasonable, and constituted a continuing nuisance, for which suits might be brought every day in the year, and that under the circumstances an equity suit would lie for the purpose of preventing a multiplicity of suits at law.

A decree enjoining the discharge of offal from a distillery into a stream in such a way as to make its use unfit for stock was held to be warranted in Schumacher v. Shawhan Mo. App. 573, 67 S. W. 717.

(1902) 93

In enjoining a hotel proprietor from polluting a city's water supply by means of sewage discharged into a brook, the court in Martin v. Gleason (1885) 139 Mass. 183, 29 N. E. 664, said that the right to use the brook as a discharge for sewage in large quantites, as practised by the respondent,

was inconsistent with the city's use of the water.

A bill alleging that tanners and manufacturers polluted a creek by discharging refuse into it, so as to make plaintiff's house and meat market unhealthful and of less value, and that if the nuisance were continued the injury would be irreparable and his property worthless, was held to state sufficient facts 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.

And in two early North Carolina cases injunctions were granted upon the theory that the damming of a stream for mill purposes would, or did in fact, have the effect of impairing the health of neighbors. Atty. Gen. v. Blount (1826) 11 N. C. (4 Hawks) 384, 15 Am. Dec. 526; Atty. Gen. ex rel. Raleigh v. Hunter (1826) 16 N. C. (1 Dev. Eq.) 12.

A concern which had the use, for irrigating, culinary, and other domestic purposes, of water which came through a ditch or canal, was held to be entitled to enjoin the pollution of such water by another concern, operating canals which emptied into the plaintiff's ditch seepage and surplus water from higher sources, which was befouled with alkali and other substances in such a way as to render it unfit for the uses stated above, in North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co. (1898) 16 Utah, 246, 40 L.R.A. 851, 67 Am. St. Rep. 607, 52 Pac. 168, the court ordering the defendant to fill up a ditch through which the polluted water came to plaintiff's ditch.

In Worthen & Aldrich v. White Spring Paper Co. (1908) 74 N. J. Eq. 647, 70 Atl. 468, affirmed on opinion below in (1909) 75 N. J. Eq. 624, 78 Atl. 1135, the vice chancellor said: "During the hearing and upon the argument, the defendant's counsel laid much stress upon the manner in which the complainant had set out the measure and extent of its rights in the stream, holding that it had limited them by claiming merely that it was entitled to have the waters of the

stream flow through and past its premises unimpaired in quantity and in quality, except by the reasonable and lawful use of the same by the upper riparian owners, and that the use which the defendant had made of the stream permitting small quantities of cotton fiber to pollute it, was consistent with a reasonable and lawful use, and that thus the complainant had stated itself out of court. This contention, however, is not entitled to any force as a defense to the fact of pollution. The defendant is, of course, entitled to a reasonable use of the waters of the stream, but that use must be lawful, and must be exercised with a due regard to the lawful rights of lower proprietors, and especially is this true with regard to the charge of pollution."

The defense of reasonable use was relied upon in Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120 Atl. 69, supra, but was apparently not seriously considered by the appellate court, although the lower court took the view that the use of the stream for discharging sewage was reasonable.

Pollution of a stream by throwing into it débris from a quarry was enjoined in Fisher & Son v. Doolittle & Wilcox (1912) 3 Ont. Week. N. 1417, 5 D. L. R. 549, 22 Ont. Week. Rep. 445, where it interfered with the operation of a paper mill on a pond below.

The temporary use of a stream for emptying sewage during a two weeks' race meet was enjoined in Bright v. Niagara Racing Asso. (1921) 20 Ont. Week. N. 46, upon a showing that ducks and geese were killed and the health of plaintiff and his family endangered.

Dunn v. Hamilton (1838) 3 Shaw & M. (Scot.) 356, affirming (1837) 15 Sc. Sess. Cas. 1st series, 853, is cited in 4 Scots' Dig. col. 400, as having held that, in an action by an inferior heritor for an interdict against a dye work, that an instruction was erroneous which failed to point out that the primary use of a stream was to support life in man and beast, and that its use for manufacturers was secon

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