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dary only, and could not interfere with the primary use.

And it is stated in 4 Scots' Dig. cos. 390 and 391, that an instruction was approved in Buccleuch v. Cowan (1866) 5 Sc. Sess. Cas. 3d series, 214, supra, III. d (see subsequent appeal on other grounds in (1876) L. R. 2 App. Cas. (Eng.) 344-H. L., infra, VI. q), "that an upper proprietor is not entitled to throw impurities, and especially artificial impurities, into the stream, so as to pollute the water as it passes through the estate of a lower proprietor; and that the lower proprietor is entitled to complain of such pollution as renders the water unfit for primary purposes."

But in some cases injunctions have been denied upon the ground that defendant's use of the stream was reasonable, and that, accordingly, he was justified in polluting it.

Thus, in Helfrich v. Catonsville Water Co. (1891) 74 Md. 269, 13 L.R.A. 117, 28 Am. St. Rep. 245, 22 Atl. 72, denying an injunction, it was held that a landowner whose cattle befouled a stream in the ordinary way might not thereby be enjoined from polluting the stream, at the instance of one subsequently acquiring the right to use the stream for any purpose, this being a reasonable use of the stream and an incident to the property in the soil; the court stating that the inconveniences arising therefrom must be borne by those suffering from them.

In Barnard v. Sherley (1893) 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, the owner of pasture land through which a natural stream ran after passing through a city was held not to be entitled to enjoin its pollution by artesian water, which was used at a sanitarium for bathing diseased persons. Following analogous cases holding that it was of public importance that proprietors of mines and useful manufactories should not be held responsible for slight injuries, or even for some degree of interference with agriculture, the court declared: "The natural right to have the water of a stream descend in its pure state must yield to

the equal right of those above. Their use of the stream for mill purposes and the other manifold purposes for which they may lawfully use it will tend to render it more or less impure. The water may thus be rendered unfit for many uses for which it had before been suitable; but, so far as that condition results from reasonable use of the stream in accordance with the common right, the lower riparian proprietor has no remedy. . . . Those that live upon the lower banks of such streams must, for the general good, abide the necessary results of such causes."

And see McEvoy v. Taylor (1909) 56 Wash. 357, 26 L.R.A. (N.S.) 222, 105 Pac. 851, supra, III. c, 1.

See also the view of the dissenting judges of the equally divided court in Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, supra, III. c, 1.

And see Stamford Extract Mfg. Co. v. Stamford Rolling Mills Co. (1924) 101 Conn. 310, 125 Atl. 623, infra, VI. i, where the defendant's discharge of metallic substances was considered to have been reasonable.

The fact that human excremental deposits were discovered upon the banks of the streams was dismissed from consideration in State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, where the occurrences were incident and isolated, and where defendant had provided ample sanitary accommodations for its employees, and the infractions were due to their predilection or perversion, of which the defendant was not cognizant.

d. Substantial character of injury; sufficiency of complaint and proof.

It will be noted that in many of the cases heretofore cited as granting in-, junctions, the substantial character of the injury has been stressed. See, for example, Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, supra, III. a; Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, supra, III. a; Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N.

E. 468, supra, III. c, 2; MacNamara v. Taft (1907) 196 Mass. 597, 13 L.R.A. (N.S.) 1044, 83 N. E. 310, supra, III. c. 2; Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480, supra, II.; Snow v. Williams (1879) 16 Hun (N. Y.) 468, supra, III. a. And see Mann v. Des Moines Water Co. (1913) 121 C. C. A. 220, 202 Fed. 862, supra, III. b, and cases in subd. VI. g. infra.

And the refusal to grant relief has frequently been based upon the ground that the allegations or the proof were insufficient in that they failed to show that a substantial pollution existed or was imminent, or that defendant had already materially contributed to it, or threatened to do so.

Thus, in holding to be unwarranted an injunction which prohibited an upper riparian owner from felling any trees into the stream and allowing them to remain there and decay, the court, in Fisher v. Feige (1902) 137 Cal. 39, 59 L.R.A. 333, 92 Am. St. Rep. 77, 69 Pac. 618, expressed the opinion that without doubt the defendants could be enjoined from felling trees if thereby the water was made unfit for the lower riparian's owner's domestic use, but said that it did not fully appear that the injury that had been done to the quality of the water was material.

And in State ex rel. Wear v. Springfield Gas & E. Co. (1918) Mo. App. -, 204 S. W. 942, the court conceded that if the facts charged and proved amounted to a public nuisance, causing the destruction of fish in a stream and its pollution to such an extent as to be injurious to the health and comfort of the public generally, the prosecuting attorney would be authorized to sue in equity to enjoin such a nuisance, particularly in view of a statute vesting the ownership of fish in the state; but held that the allegations as to the water being made unwholesome for certain individuals did not charge that the public health was endangered, and, furthermore, that the evidence fell short of supporting the allegations that the fish were destroyed by the alleged pollution.

A complaint that the proposed construction of a cemetery would result

in the pollution of a stream, making it unfit for human use, and thus injure plaintiffs' property, was held to be insufficient to support a temporary injunction without a hearing, in Farb v. Theis (1923) Tex. Civ. App. —, 250 S. W. 290, where the location of the proposed cemetery with reference to plaintiffs' homes or farms was not shown, except as somewhere upstream, and there was no allegation that the land was already converted into a cemetery, nor that burial lots were being sold, that burials had already begun or were imminent, nor that the cemetery would not be properly drained.

And a considerable number of decisions denying the injunction have been based largely, at least, upon the insufficiency of the proof as to the alleged pollution or as to its substantially injuring the plaintiff. See particularly cases set out in subd. III. e, infra. See also French v. ChapinSacks Mfg. Co. (1915) 118 Va. 117, 86 S. E. 842, infra, VI. f, and cases in subd. VI. g, infra. And see Belton v. Baylor Female College (1896) - Tex. Civ. App. —, 33 S. W. 680.

In Fletcher v. Bealey (1885) L. R. 28 Ch. Div. (Eng.) 688, supra, III. b, denying an injunction, the court referred to the necessity of proving substantial damage. And see Elmhirst v. Spencer (1849) 2 Macn. & G. 45, 42 Eng. Reprint, 18, infra, VI. a.

In Clowes v. Staffordshire Potteries Waterworks Co. (1872) L. R. 8 Ch. (Eng.) 125, however, granting an injunction to the tenant for life of a dye works, where the water of a river had been fouled to a greater extent than it had been prior to the construction of defendant's reservior, one of the judges stated that in a case of that sort it would be impossible to prove specific damage.

Buccleuch v. Cowan (1866) 4 Sc. Sess. Cas. 3d series, 475, is reported in 4 Scots' Dig. col. 390, as having held, in an action to prevent the pollution of a river, that it was not necessary to allege that the nuisance was wrongful.

An injunction sought upon a complaint that a creek was polluted by

deleterious matter from the toilet room and sink in defendant's house will not be issued where it appears that the defendant had neither a toilet room nor a sink in his house. Klein v. Power (1920) 212 Mich. 701, 180 N. W. 383.

McDonough

And see Spence v. (1889) 77 Iowa, 460, 42 N. W. 371, supra, III. c, 1.

e. Distance, size of stream, etc. Whether the stream has been or will be polluted by defendant to such an extent as to cause material injury to plaintiff often depends largely upon how far up the stream from plaintiff the defendant discharged the polluting matter, and also upon such circumstances as the size of the stream and the rapidity of its flow.

In some of the decisions it appears that the defendant polluted the stream at a point immediately above plaintiff's property, or that their lands adjoined each other. In cases of this sort, of course, the plaintiff would ordinarily have a stronger ground for relief than if the pollution arose at a further distance up the stream.

Thus, a landowner was held to be entitled to enjoin the pollution of a small stream into which were discharged by his immediate neighbor the droppings of a large number of cattle in a feeding stable, in Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, where the stream was thereby made unfit for husbandry and for watering stock. The court said, inter alia, that the injury complained of was the pollution, rather than the improper or unreasonable use of the stream, and that the finding below that there was no pollution was unsustained by the evidence and clearly against it.

In enjoining a bleachery from polluting a stream, where the principal defense apparently was that the pollution was not caused by the defendant, the chancellor in Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, after asserting that the fact of the pollution itself was not denied, and was fully established by

the evidence, said that the evidence rendered it equally certain that the evils were occasioned by the defendant, remarking that they arose after its works were erected and went into operation, that their magnitude bore a perceptible proportion to the amount of defendant's business, the works being very extensive, and that the stream in question was very small. He added that, in view of the fact that such a large amount of foreign matter was constantly being thrown into the stream within a quarter of a mile of the complainant's premises, it was certainly no task upon his credulity to believe that the water must be most seriously polluted by the process used by the defendant. And he said, further, that the case remained unshaken, although there was evidence that a large stream would be unaffected by an equal or greater amount of such a discharge, and although in even smaller streams the operations of bleaching establishments might be rendered innocuous by means of filters or other mechanical contrivances.

The fact that the stream in question had a weak flow was stressed in Manning v. Webb (1911) 136 Ga. 881, 72 S. E. 401, holding that the plaintiff landowner was prima facie entitled to enjoin the defendant hotel owner from emptying a sewer into the steam.

After stating that the maintenance in close proximity to a stream, of a hogpen and a manure pile in connection with a stable, was equivalent to actually putting the polluting material directly into the stream, the court in People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. (1895) 107 Cal. 214, 48 Am. St. Rep. 121, 40 Pac. 486 (enjoining this as a public nuisance), added that if the pen and stable were at a reasonable distance from the river the fact that the winter rain washed some impurities into the stream would be something of which lower riparian proprietors could not complain.

The unjustified pollution of a river by defendants, by pouring foul water into it from their dye works, was enjoined as a private nuisance, at the in

stance of manufacturers about three quarters of a mile down the river, in Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, upon a showing that it had so increased as to injure the latters' product.

In MacNamara v. Taft (1907) 196 Mass. 597, 13 L.R.A. (N.S.) 1044, 83 N. E. 310, an injunction was granted to protect a stream used for grazing from pollution by the discharge of oils and chemicals by a manufacturer about a mile up the stream.

And in Richmond Mfg. Co. v. Atlantic De Laine Co. (1871) 10 R. I. 106, 14 Am. Rep. 658, the enjoined manufacturer was about a mile upstream from the manufacturer' who obtained the decree.

Various owners of small mills which were situated from 1 to 30 miles below the defendant's recently established salt works, on the same stream, were held 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, to be entitled to enjoin the latter's material pollution of the stream by making it so salty as to be unfit for watering cattle, as well as for other uses, both domestic and mechanical,—it having been shown that most of the fish therein and some of the vegetation along the banks were destroyed, and that the salt had the effect of rusting machinery and deranging the operation of boilers, the court observing that the only dispute was as to the degree of the pollution.

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, supra, III. b, the cemetery, which it was proposed to underdrain, was within 4 miles of plaintiff's land. The discharge of chemicals into a stream at a distance of 6 or 7 miles above plaintiff's property was enjoined in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522, although the defendant claimed that they became

diluted and were in fact innocuous
when they reached plaintiff.

In American Strawboard Co. v. In-
dianapolis Water Co. (1894) 26 C. C.
A. 470, 46 U. S. App. 526, 81 Fed. 423,
overruling a motion for the suspension,
pending an appeal, of the injunction
awarded below in (1893) 57 Fed. 1000,
the court said that it ought not to take
it for granted that the river would
continue at so high a stage, after a
great flood which followed the award-
ing of the decree below, as to preclude
the danger of pollution until the ap-
peal could be heard,-observing that,
whether or not the refuse matter

would pollute the water at a distance
of 35 miles below the point of dis-
charge was a mooted question upon
the trial, which was determined by
the court below adversely to the pres-
ent appellant.

And see the dictum as to distance in
Middlestadt v. Waupaca Starch & Pota-
to Co. (1896) 93 Wis. 1, 66 N. W. 713,
infra, VI. c.

But so far as the claim that the pollution constituted a nuisance was concerned, it was said in Durham v. Eno Cotton Mills (1906) 141 N. C. 615, 7 L.R.A. (N.S.) 321, 54 S. E. 453, supra, that the city was not a riparian owner, and that, to obtain an injunction on such a ground, plaintiff must not only establish its right to be protected, but in addition it must show by satisfactory proof that the right had actually been infringed in some material way, or that defendant was about to commit some act which would tend so far to impair the right as that the damage would be irreparable. And it was held that the plaintiff city had failed to prove that the river was polluted at its intake, the court further considering that it was improbable, if not impossible, that any deadly germs could survive the 17 miles between the point where the river became polluted and the intake, and declaring that the claimed injury was entirely prospective.

And, in holding that the refusal to grant an interlocutory injunction to restrain the pollution of the city's water supply was warranted in respect to pollution alleged to have been pro

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duced by the discharge from the defendant's factory of refuse water impregnated with divers injurious ingredients (in distinction from pollution from certain other sources, as to which defendant was enjoined), the court said in Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96, supra, that it was not every impurity imparted to the water that would be the subject of an injunction, and that that part of the case was not stated with sufficient certainty to justify an injunction on the statements of the bill alone, referring particularly to the failure to state how the waters were impregnated, by what substance and to what extent, the distance of the factory from the lake, and the volume of the water in the stream.

A complaint seeking to abate an alleged pollution was held not to state a cause of action in Spring Valley Waterworks v. Fifield (1902) 136 Cal. 14, 68 Pac. 108, where it did not allege specific facts to show special injury to the complainant, failing, for instance, to show the distance of the defendant's dairy, from which the pollution was alleged to arise, from the complainant's reservoir. The court said that perchance the dairy might be 20 miles away, and that perchance the waters in transit between the dairy and the reservoir might become absolutely pure by reason of natural filtrations.

In Storm King Paper Co. v. Firth Carpet Co. (1917) 184 App. Div. 514, 172 N. Y. Supp. 33, it was said that the reach of the stream and its varied exposure rendered a conclusion as to the origin of the pollution mere speculation.

Although, in Atchison v. Stratford Gas Co. (1922) 22 Ont. Week. N. 147, the evidence was not sufficient to trace the pollution of a river at plaintiff's farm to defendant's sewage, so as to warrant the granting of an injunction, the court said that if, after carefully considering and weighing the peculiar difficulties confronting a plaintiff so remote from the alleged wrongdoer, his counsel desired to reopen the case, he might apply within a month.

IV. Contractual and statutory provisions.

The granting or refusal of the injunction in most of the cases, as hereinbefore set out, has been predicated upon the ground that a nuisance, generally of a private nature, has existed or has at least become imminent, or upon some direct invasion of a common-law property right. Independently of any such ground, however, an injunction may be based upon the violation of an express contractual obligation, or upon the violation of a statute which in terms or impliedly prohibits the discharge of polluting material of a designated sort into streams generally, or into certain classes of streams under particular circumstances.

In holding that a club leasing a tract "for the sole purpose of a hunting estate, and the protection and propagation of game and game fish," could restrain the owner from unnecessarily locating a lumber camp just above the club's hatchery, and unnecessarily befouling the stream with the excrement of men and beasts and other offal of the camp, whereby the fish were destroyed, it was said in West Virginia Pulp & Paper Co. v. Cheat Mountain Club (1914) 129 C. C. A. 49, 212 Fed. 373, affirming (1913; D. C.) 205 Fed. 195, that even if the club's right to protection of its hatchery from pollution of the stream. on which it was situated was dependent on the statute forbidding pollution of streams, or on the common law of nuisance, the club would not be restricted to the remedy of indictment, for it was evident that it had a special interest quite different from that of the public at large; but that the club's right was not dependent on the statute nor the common law of tort, for it had a contractual right, under the lease, to protection of the fish in its hatchery from injurious pollution of the stream not necessary to the owner's use of the land.

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

The fact that a statute made the adulteration of a stream so as to interfere with its use by the lower ri

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