ditch, the inference was authorized that a great portion of the land could be made fit for cultivation, if it was irrigated only by the river water, or water unmixed with that which defendant discharged into the canal.

In enjoining the pollution of a creek by defendant's sewage plant, the court in Com. v. Kennedy (1913) 240 Pa. 214, 47 L.R.A. (N.S.) 673, 87 Atl. 605, everruled the lower court's view that, since the creek in question was a private stream, its pollution constituted nothing more than a private injury, of which only a riparian owner could complain, by pointing out that under a recent statute the state had resumed control of all flowing waters, and prohibited the discharge of sewage into the waters of the state, and that consequently the riparian owners could no longer be said to be alone interested. And in this connection it was stated that the infection from which the riparian owner himself might escape might nevertheless in a hundred ways, through his innocent acts, spread through a community.

In State ex rel. Board of Health v. Diamond Mills Paper Co. (1902) 63 N. J. Eq. 111, 51 Atl. 1019, affirmed on opinion below in (1902) 64 N. J. Eq. 793, 53 Atl. 1125, the court said that it was not necessary that the city should have been injured, observing that the bill was not filed by the city. In St. John v. Barker (1906) 3 N. B. Eq. Rep. 358, the city was held to be entitled, as a riparian owner, to enjoin the pollution of a river by sewage from a hotel, without showing any actual damage.

Although the court made no particular point in this regard, it may be noted that the defendant's claim that complainant's goods had sold well, as indicating that the latter was not materially damaged by pollution, was answered by showing that it had cost more to make the goods, in Richmond Mfg. Co. v. Atlantic De Laine Co. (1871) 10 R. I. 106, 14 Am. Rep. 658. But in Harris v. Mackintosh (1882) 133 Mass. 228, supra, II. b, it was intimated that, unless plaintiff had actually used the water of the stream,

he was not entitled to restrain its pollution.

And one who made no use of the stream which he claimed had been polluted was held not to be entitled to enjoin such pollution, in Sullivan v. Jones (1910) 13 Ariz. 229, 108 Pac. 476.

d. Denial of plaintiff's right. The denial of plaintiff's right to unpolluted water seems in many cases to have been, in effect at least, a ground on which the defendant has sought to avoid an injunction, where the latter has claimed a superior right; and, while while in Some such cases the defendant has prevailed, the decree has more frequently been granted. See particularly in this connection cases in subd. III. c, 2, supra. (As to the claim of a prescriptive right, see subd. VI. o, infra; and as to the defense that defendant's use was expressly authorized, subd. VI. j, infra.)

And in some cases the defendant has placed his defense squarely upon the ground that the plaintiff did not possess the right to use the water in the way in which he did use it. This really presents a question of substantive law as to the rights of the respective parties in the stream rather than one of remedy, and is therefore beyond the scope of the annotation. A few cases are cited, however, by way of illustration.

Thus, the principal defense 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, seemed to be the denial of plaintiff's right to use the water or the ditch for irrigating, culinary, and other domestic purposes, defendant claiming the right to use the same ditch for the purpose of discharging therein seepage and surplus water from another ditch or canal. In granting the injunction, the court stated that the purposes claimed by the respective parties were entirely inconsistent, and held that the plaintiff had acquired its right to the water and to use the ditch for the purposes first stated above, before the water had become polluted,-construing the char

ter of the concern from which it acquired its right as contemplating the distribution of the water for irrigation, as well as merely diverting surplus water.

And, in reply to the contention that plaintiff landowner showed no right to use the water of the river, because its bed belonged to the state, from whose control the water never passed, it was said in Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ. App. —, 163 S. W. 1023: "It is true that the owner of the shore of a navigable stream has no ownership in the water, and no greater right than any other person as between himself and the commonwealth; but he has the right to the use as a public highway, and may divert its waters for domestic purposes, and, to the extent of not interfering with the rights of the public to navigate, may divert the waters for irrigation."

And see 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, granting an injunction where the defendant's denial of "the plaintiff's right to unpolluted water rested largely upon the ground that the former's predecessor acquired the implied right to pollute the stream, by virtue of a grant from the Crown and also one from plaintiff's predecessor.

But in Bellevue v. Daly (1908) 14 Idaho, 545, 15 L.R.A. (N.S.) 992, 125 Am. St. Rep. 179, 94 Pac. 1036, 14 Ann. Cas. 1136, the plaintiff city was held not to be entitled to restrain a landowner from permitting his cattle to range along and wade through a ditch on his land, through which the city's water supply flowed from a creek into a reservoir, the court observing that the defendant had the right to use his own land in the usual and ordinary manner and for the necessary purpose of grazing; that the city had not shown that it had an easement in the ditch; and that, even if it had, it would be its duty to fence or otherwise protect the ditch, unless it could show that it had shifted that duty to the defendant. And it considered that the statutes in reference to nui

sance contemplated something more than the usual ordinary and lawful use of one's property; and that this was a case of damnum absque injuria.

And in reply to the city's contention that its right to use the water of a lake was something more than a riparian right, since under a statute it was authorized to acquire water rights and to protect them against pollution, it was said by the four judges of the equally divided court who favored the setting aside of the injunction, in Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, that the city had in fact never exercised its authority under such statute, except to become a riparian owner, and that as a mere riparian owner it was not entitled to a decree to facilitate its business of unlawfully diverting the water.

And see in this connection, Wilson v. Green (1914) 141 Ga. 790, 82 S. E. 241, where a defendant, against whom an injunction was sought, denied that plaintiffs had any rights as to the stream, the decision turning upon the admissibility of evidence as to title.

e. Defendant's due care.

In connection with certain other defenses, as, for instance, that defendant has made a reasonable effort to abate the pollution (see subd. VI. i, infra), and that his use of the stream has been a necessary one (see subd. VI. k, infra), the claim has sometimes been made that he has exercised due care to avoid causing any injury to the plaintiff; but the defense of due care in such cases seems generally to have been merely incidental, and not seriously considered. It would appear that the existence or nonexistence of due care upon the part of one sought to be enjoined for polluting a stream would be entirely immaterial,-except possibly as a mitigating circumstance, or upon the question of the terms or conditions of the decree.

The defense that the manufacturer's business was conducted in a careful manner and without malice, in connection with other defenses, was overruled in Weston Paper Co. v. Pope

(1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, the court declaring that this made no difference, and afforded him no reason why he should escape the consequences of his own folly.

And see Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, infra, VI. 1.

And in reversing the lower court's decision that a complaint alleging damage from defendants' wrongful pollution of a bayou, from oil and salt water, and seeking an injunction against its continuance, insufficiently alleged defendants' negligence, it was said in Teel v. Rio Bravo Oil Co. (1907) 47 Tex. Civ. App. 153, 104 S. W. 420: "It is unnecessary to cite authorities upon the general proposition that the wrongful pollution of a stream by one riparian owner, to the injury of others, will give a cause of action to the parties so injured, and entitle them to enjoin the acts causing such pollution, and to recover damages for the injury thereby caused them. It is clear that, if the petition had alleged that appellees had conveyed the waste oil and salt water collected on their lands, by other means than ditches, and thrown it into the bayou, thereby polluting its waters, they would be liable to appellants for any injury thus caused them, and we can see no distinction between such case and the one made by the petition. If, however, the petition could be construed as showing that the drainage of the oil field into the bayou and the consequent pollution of the stream was the natural result of the careful and proper operation by appellees of their oil wells, we would not hold that they could so pollute the waters of the bayou, to the injury of appellants, as alleged in their petition, without incurring liability therefor.

We think such a case should be governed by the ordinary rules applicable to a suit by a riparian owner to recover damages for the pollution of the stream; and it would be no defense to such suit to show that the pollution was the natural consequence of the conduct by the defendants of a lawful business, and was not caused by any negligence on their part."

However, in Barnard v. Sherley (1893) 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117, the court took the view that the defendant's use of the stream being necessary, he could justify the pollution where he exercised due care, and in the case at bar he was held to have exercised due care and to be accordingly justified.

Although it was said in Wallace v. M'Cartan [1917] 1 Ir. R. 377, infra, VI. j, that defendant was negligent, this appears to have been a merely incidental point in connection with a defense upon another ground.

1. Pollution by plaintiff.

In some of the cases the defense has been set up that the plaintiff himself contributed to the pollution, and that, by reason of his being thus at fault, he was not entitled to restrain the defendant. While this defense has prevailed in a few cases, under the particular facts, it would seem that the plaintiff's pollution would not be a good defense unless it was of the same or a similar character as defendant's.

In reference to the contention that complainant was itself a sinner, by reason of polluting the water below its own works, the court in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, said that this was a matter entirely between the complainant and the lower owners on the river, unless the rights of the public should be injured thereby.

The

The contention was made in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, that the plaintiff itself caused the damage complained of, by having polluted the stream by means of hogpens before it emptied into its lake. court conceded that, if the pollution from this source was of the same character as that complained of, there might be some reason for questioning the plaintiff's right to the injunction, since plaintiff would be contributing to the very wrong it sought to hold the defendant responsible for; but observed that plaintiff was not com

plaining of pollution from hogpens, but from what was far worse, and that the hogpens at most only furnished another source of pollution, which was altogether different from that complained of both in kind and degree; that plaintiff intended to remove this source, and that, as its removal would not in any degree relieve plaintiff of the conditions for which it sought to hold the defendant responsible, it would be carrying the clean hands maxim too far to deny relief on account of the hogpens. And in reply to the further contention that the plaintiff's pollution made the water unfit for lower riparian owners to use, the court said that what it had already said, as to the contention that plaintiff had no right to divert the water of the stream, applied with equal force to the present contention,-it having pointed out that this was a common use, which did not necessarily interfere with the rights of others, and that it was not shown that the rights of any lower riparian proprietors had been interfered with, the plaintiff having so used the water for about twenty years, and there having not been a suggestion of a complaint from anyone; and it added that there was nothing to show the character of the stream after it left plaintiff's land, how it was used, if at all, by others, or whether the pollution from plaintiff's use did in fact injure any per

son.

The defense that the plaintiff was not entitled to relief, because he himself polluted the stream by sewage, was likewise overruled in Fahnestock v. Feldner (1904) 98 Md. 335, 56 Atl. 785, holding that one could enjoin the cbstruction of a stream by lower riparian owners in such a way that a pond of stagnant water was formed on his land, the court being satisfied that whatever pollution the plaintiff had caused came from house drainage, which was a reasonable use of the stream, and did not amount to a nuisance, rather than from water-closet drainage.

In Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986, the court said

that evidence that the defendant made cider for the plaintiff and threw the pumice into the brook would not tend to excuse him for so disposing of other pumice in such quantities as to cause the pollution complained of, and certainly would not be sufficient to show that the plaintiff had so contributed to his own injury as to deprive him of his right to equitable relief.

But relief was denied as to an inconsiderable injury to plaintiff's lands below his mill, where he himself and others also contributed to it, in Canfield v. Andrew (1882) 54 Vt. 1, 41 Am. Rep. 828, although the defendant was enjoined as to interfering with plaintiff's operation of his mill.

And the fact that the conditions complained of were intensified by obstructions placed in the stream by plaintiff, and plaintiff, and that they could be readily remedied by piping, so far as his house was concerned, as well as that the alleged contamination might reasonably be traced to other sources than defendant's plant, was held in French v. Chapin-Sacks Mfg. Co. (1915) 118 Va. 117, 86 S. E. 842, to warrant the lower court's refusal to grant a decree, except to the extent of enjoining the defendant's discharge of an unnecessary amount of oil into the stream, which could be readily prevented, plaintiff having failed, by a preponderance of the evidence, to establish his allegations that the defendant so polluted the water as to render it unfit for domestic use and for cattle.

In Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, the court observed that it would not say that the plaintiff came into court with unclean hands, but that its own action in polluting the stream was an additional reason for refusing an injunction, so long as the question of damages was undetermined by an action at law.

g. Other sources of pollution.

One of the most common defenses which has been interposed is that other sources of pollution have been responsible for or have contributed to the injury complained of, and this

contention has generally been held not to be a good ground of defense.

Thus, the fact that the pollution might be caused partly by mineral ingredients entering the stream after it touched complainant's land was held not to preclude the issuance of the injunction in Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335.

The defense that the stream was not polluted, and that, if it was, the defendant's factory refuse did not cause it, was disposed of in McCallum v. Germantown Water Co. (1867) 54 Pa. 40, 93 Am. Dec. 656, by the court being satisfied that the water was actually rendered unfit for drinking, and that the impurity could be traced to no other source, all others being so slight as to be of no importance.

It was held in Richmond Mfg. Co. v. Atlantic De Laine Co. (1871) 10 R. L. 106, 14 Am. Rep. 658, that where the respondent had polluted the stream it was no excuse that others also had polluted it.

In overruling the defense that the offensive condition of a race came from various other sources besides defendant's slaughterhouse, and that, if the court should stop the defendant's inconsiderable part of the pollution, the plaintiff would still continue to suffer almost as much from the other sources as he had suffered, the court in Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, said: "It is no answer to a complaint of nuisance that a great many others are committing similar acts of nuisance upon the stream. Each and everyone is liable to a separate action, and to be restrained. . . . The extent to which the appellee has contributed to the nuisance may be slight and scarcely appreciable. Standing alone, it might well be that it would only very slightly, if at all, prove a source of annoyance. And so it might be, as to each of the other numerous persons contributing to the nuisance. Each standing alone might amount to little or nothing. But it is when all are united together, and contribute to a common result, that they become important as factors, in producing the mischief complained of. And it may

. .

only be after, from year to year, the number of contributors to the injury has greatly increased, that sufficient disturbance of the appellant's rights has been caused to justify a complaint. One drop of poison in a person's cup may have no injurious effect. But when a dozen, or twenty, or fifty each put in a drop, fatal results may follow. It would not do to say that neither was to be held responsible. In that state of facts, as in the one presented by this case, each element of contributive injury is a part of one common whole, and, to stop the mischief of the whole, each part in detail must be arrested and removed. The remedy in equity to prevent a nuisance is generally said to exist whenever the nature of the injury is such that it cannot be adequately compensated by damages, or will occasion a constantly recurring grievance. An injunction is the only effectual remedy to stop the injury. Especially is this the case when the injury is caused by so many that it would be difficult to apportion the damage, or say how far anyone may have contributed to the result, and so damages would likely be but nominal, and repeated actions, without any substantial benefit, might be the result. . . . As all are together contributing to the same result, if the injury does not cease upon the granting of the injunction in this case, he may be entitled to join in one case all who still continue the injury."

In Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96, it was said that, even though there were other sources of pollution, or though many other persons were committing the same sort of nuisance, that formed no reason why the particular cause or source of pollution should not be restrained.

In reply to the contention that many others besides the defendants were equally or more guilty of causing the pollution, the vice chancellor in State ex rel. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569, said that each one was separately liable for the nuisance to which he contributed, and that it was no shelter to the one