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charged that another might have aided directly or remotely, or otherwise.

The defense that people living along the river, as well as the defendant manufacturer, polluted the water by draining into it the filth and other refuse matter which accumulated on their premises, was overruled in Indianapolis Water Co. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, where the court said that it was no answer to a suit for creating and maintaining a nuisance that others, however many, were committing similar acts, stating, further, that each one was liable to a separate suit and might be restrained.

In overruling the defense that a brook was already polluted by the washings from manured lands used in gardening, as well as from decaying vegetables and other matters, and by a cemetery drain already existing, the court 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, stated that it knew of no rule of law that sanctioned one wrong because another had preceded it; and, furthermore, that the effects which unavoidably arose from the occupation and cultivation of the soil by man did not justify the deliberate pollution of a stream flowing through private property, in order that the interests of private persons, or even of the public might be enhanced thereby, and that accordingly the threatened pollution by the defendants was not excused thereby.

In Bradley v. Warner (1898) 21 R. I. 36, 41 Atl. 564, enjoining the pollution of an ice pond, it was held that defendant could not show that the brook feeding the pond was polluted by others.

The defense that the water of a stream was already polluted by sewage was met in Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, by the court's assertion that the fact that a watercourse was already contaminated from various causes did not entitle others to add thereto, nor preclude persons

through whose land the water flowed from obtaining relief by injunction against its further pollution.

In holding the plaintiffs entitled to enjoin the pollution from defendant's salt works, although other similar works contributed their quota of pollution, and the drainage from several villages also affected the purity of the water, it was said 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, that the fact that other salt manufacturers were doing the same thing as the defendant, instead of preventing relief, might require it.

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 was not material that other causes had contributed to the pollution of the stream, that this did not excuse the defendant for its wrongdoing, and, furthermore, that this was not a case in which the defendant was simply discharging noxious matter into an already polluted stream.

In holding to be irrelevant and immaterial testimony offered by the defendant to show that pumice from another's mill had floated into plaintiff's pond without polluting his ice, the court in Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986, said that it might well have been that the quantity of pumice in the pond was insignificant until the defendant made his contribution to it, and that the fact that others put refuse in the brook, which combined with defendant's refuse to produce the injury, would not relieve him.

The defense that the pollution came largely from another's sewer, in connection with the defense that what had come from defendant's sewer had been almost entirely stopped, was a ground upon which relief was denied, in Bennett v. National Starch Mfg. Co. (1897) 103 Iowa, 207, 72 N. W. 507.

The contention that water was foul from pollution before it reached de

fendant's mill, and that plaintiff would not be benefited by restraining its increase of the pollution, was overruled in Storm King Paper Co. v. Firth Carpet Co. (1918) 184 App. Div. 514, 172 N. Y. Supp. 33.

It will be noted that in the reported case (CARETTI v. BRORING BLDG. CO. ante, 1) the objection that other sources of contamination contributed to the pollution of the stream was overcome by showing that the particular sewer added materially to the pollution which previously existed, and that it caused special damage to the complainant.

And see Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120 Atl. 69.

And the contention that the pollution was largely contributed from other sources was overruled in Behnisch v. Cedarburg Dairy Co. (1923) 180 Wis. 34, 192 N. W. 447.

The contention that the water of a creek was unfit for cattle before defendant built its barn was overruled in Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, supra, where it was shown that it had been generally used for such purpose for many

years.

In reference to the contention that the water flowing through a ditch contained a large per cent of salt, independently of the polluted water contributed by defendant, the court in North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co. (1898) 16 Utah, 246, 40 L.R.A. 857, 67 Am. St. Rep. 607, 52 Pac. 168, supra, expressed the opinion that the river water, by running through it, would purify it, if the defendant did not discharge into it such polluted water.

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(1866) L. R. 2 Eq. (Eng.) 71, the court, stating that the chief defense was that the defendants were not the persons who created the nuisance, since the water came to them foul, said that this was not a sound view of the case, since defendants had sole control over the flow of water into the canal, and could put a stop to it, observing in this connection that it was somewhat pedantic to draw distinctions between nonfeasance and misfeasance.

In Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, defendants contended that various other mills besides theirs polluted the stream, and that, since plaintiff had not bought up the rights of all such mills, it could not claim pure water, plaintiff having admitted that it had bought up some of such rights; but the court considered the case analogous to St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. Cas. 642, 11 Eng. Reprint, 1483, 25 Eng. Rul. Cas. 144, 11 Mor. Min. Rep. 50, in which it was held that an additional nuisance from smoke, clearly traced to a new chimney, could not be justified upon the ground that previously plaintiff had a great many nuisances to encounter; and stated that the circumstance that plaintiff could buy up those who had acquired rights against it was no reason why it should be compelled to submit to the additional nuisance until it had bought up all the rest.

In Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, the vice chancellor said that the fact that the stream was fouled by many others afforded no defense, since, if all were wrongdoers, the misfeasances of others could not justify that of the defendant. He also observed that if the others, or any of them, had, by grant or use, acquired a right to do that which theretofore was wrongful, it did not justify the defendant in adding to the nuisance, and said: "Besides, as the plaintiff might in some way succeed in getting rid of the nuisance caused by others, he would, on this contention of the defendant, be exposed to the acquisition

of a prescriptive right by the defendant, who might then be the sole person entitled to foul the water."

In enjoining a manufacturer from contributing to the pollution of a stream, the court in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522, stated in reply to the contention that what defendant contributed was infinitesimal since others also polluted the stream, that it did not lie in the mouth of one of such contributors to the nuisance to say that, pointing out that otherwise they might all laugh at the person injured, and say that he could not sue any one of them because he could not prove that what each one did would of itself be enough to cause the damage. And the court considered that if two manufacturers each discharged a chemical which was harmless of itself, but when combined with the other produced a pollution, the party injured would have the right to enjoin each of them.

Replying to the contention that what defendants did was insufficient to cause a nuisance, but only became such, if at all, by the number of other canneries all doing the same thing, it was said in Atty. Gen. v. Ewen (1895) 3 B. C. 468, that everyone who contributed to a nuisance was liable if, in the aggregate, a nuisance was proved.

In Fisher & Son v. Doolittle & Wilcox (1912) 3 Ont. W. N. 1417, 22 Ont. W. R. 445, 5 D. L. R. 549, Meredith, J. A., declared that it was not a good answer to say that in the freshets and high waters the stream would be muddied anyway, and asserted that the fact that nature could not be enjoined from doing such an injury. did not give to man the right to add to it, but might rather be a greater reason why he should be enjoined, since the burden which natural causes imposed was enough.

But, although the fact that others also polluted the stream was said in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210, to be no defense, and upon the subsequent appeal in (1899) 42 App. Div. 409, 59 N. Y. Supp. 203, this point was not considered, and although the court of appeals in (1901) 167 N. Y. 462, 60 N. E.

757, reversing the latter decision, and holding to be warranted the trial court's finding that the defendant's use was reasonable, and that he did not so pollute the water as to make it unfit for plaintiff's use, said that it was true, as suggested by plaintiff, that no degree of pollution by others. would justify an unlawful or unreasonable use of the stream by defendant, the latter court stated that the evidence of pollution by others was competent for the very purpose of enabling the question to be determined whether defendant's use was reasonable, and that the decision of that question depended, inter alia, upon the extent to which the pollution might have been attributable to other sources and causes than those charged in the complaint.

In connection with evidence that the pollution had practically ceased, the injunction was denied in Bennett v. National Starch Mfg. Co. (1897) 103 Iowa, 207, 72 N. W. 507, where there was also evidence that part of the pollution came from the sewer of another.

And in Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, although the vice chancellor expressed the opinion that as a general proposition a defense could not be established by showing that others were polluting the stream, "and that therefore the injunction will not restore the plaintiff to the enjoyment of his legal right, inasmuch as it will not prevent those other persons from continuing to pollute the water; for the plaintiff must sue each of the wrongdoers separately, unless indeed they are acting in partnership or in concert together; and the obtaining of an injunction against any one of the wrongdoers, though it may not actually restore, dces tend to restore the plaintiff to the enjoyment of his right, as it is a step towards obtaining an injunction against each of them;"-yet, after referring to the pollution from other factories and from sewage in the case at bar, he said that to a considerable extent the pollution was inevitable, that all the courts of law and equity in the Kingdom could not prevent it,

and that, therefore, if the injunction. were granted, it would not have the effect of restoring, or tending to restore, the plaintiffs to the position in which they originally stood, for the water would still flow to their mills in so polluted a state that they could not use it, as they originally did, for either washing wool or generating steam.

And see Swan v. Adams (1876) 23 Grant, Ch. (U. C.) 220, refusing to enjoin an oil refiner, where he showed that the present pollution must have arisen entirely from other sources, since his plant had been closed for over a year, and that in fact there were so many other refineries in the locality that the river was polluted to such an extent that it would be almost impossible to remedy it.

And the denial of an injunction under the civil law was apparently based in part upon the ground that the pollution came from other sources. 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.

h. Plaintiff's duty to purify.

The defendant has frequently sought to avoid the injunction, upon the ground that the plaintiff himself should have purified the water before using it; but the courts have generally held that this is not a good defense. So, it was held to be no defense to say that the complainant could have filtered the water at no great expense, in Richmond Mfg. Co. v. Atlantic De Laine Co. (1871) 10 R. I. 106, 14 Am. Rep. 658.

In Martin v. Gleason (1885) 139 Mass. 183, 29 N. E. 664, the court said: "The city has a right to be protected against the necessity of maintaining works for the preservation of the purity of the water from such a cause. If the acts of the respondent in fouling the stream have made it necessary for the city to resort to extraordinary means for preserving the purity of the water of the pond, he cannot justify the continuance of such illegal fouling by showing that the city has thus far been able, by the

maintenance of special works, to prevent the natural result of his acts."

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, it was said that if it was necessary, in order to protect the rights of the lower riparian owner, to filter the water before returning it to the stream, or to make other disposition of the chemicals or oils, the defendant should make the provision for it. And in Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468, it was held that the expense of purifying the water should not be thrown upon the plaintiff.

See also Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, infra, VI. 1.

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, where one line of defense apparently was that complainant should be required to filter the water before using it, the vice chancellor expressed the opinion that complainant should not be put to any expense whatever in fending against the polluting material. And see State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, infra, VI. i.

But in French v. Chapin-Sacks Mfg. Co. (1915) 118 Va. 117, 86 S. E. 842, supra, VI. f, the fact that the pollution could be readily remedied by piping, so far as plaintiff's house was concerned, together with other circumstances, was held to warrant the lower court's refusal to grant the relief desired.

And in denying relief in Stamford Extract Mfg. Co. v. Stamford Rolling Mills Co. (1924) 101 Conn. 310, 125 Atl. 623, infra, VI. i, after stating that the defendant had been to great expense in its efforts to abate the pollution, by way of a waste disposal plant, which had succeeded in stopping most of the pollution, the court said that the plaintiffs could adequately protect themselves from any metallic elements

in the water by installing at their plant filter, at an initial cost of about $1,000, the upkeep of which would be a nominal expense.

In Jacobs v. Allard (1869) 42 Vt. 303, 1 Am. Rep. 331, where the owner of a starch mill sought to enjoin the owner of a sawmill from throwing into the stream sawdust, shavings, and waste, upon the ground that they rendered the water impure and unfit for making starch, the court considered that the former was himself largely responsible for the trouble, by failing to protect himself by proper fenders and strainers, which he could have installed without unreasonable pains or expense.

i. Cessation of pollution; defendant's efforts to abate.

In some of the cases, where it has been shown that the pollution has ceased or practically so, the courts have refused to grant an injunction restraining a further pollution.

Thus, evidence has been held to be insufficient to entitle a landowner to enjoin his immediate neighbor's pollution of the river flowing past their lands, where the latter had kept in good order the sewer, which was claimed to have caused the pollution, so that what little pollution had existed was almost wholly removed before the suit was started, and where there was also testimony of pollution from another's sewer. Bennett v. National Starch Mfg. Co. (1897) 103 Iowa, 207, 72 N. W. 507.

And in holding that the lower court was warranted in refusing to grant an injunction to restrain the alleged pollution of a stream from a creamery, where, before the trial, the offensive character of the discharge had been practically done away with by means of a filtering drain, it was said in Perry v. Howe Co-op. Creamery Co. (1904) 125 Iowa, 415, 101 N. W. 150, that there could be no occasion for an injunction where the conditions were such that no repetition of the acts or conduct complained of was to be apprehended.

In view of conflicting evidence it was held in Driscoll v. American Hide

& Leather Co. (1917) 102 Misc. 612, 170 N. Y. Supp. 121, affirmed as to damages awarded in (1918) 184 App. Div. 916, 170 N. Y. Supp. 1076, that the present pollution of the creek in question was not sufficiently established, so as to entitle owners of farm lands to an injunction against the defendant by reason of its discharging tannery effluent into a sewer which emptied into the creek, where some of plaintiffs' cows had previously died from anthrax, but, after the installation at the tannery of a liquid chlorine system and a screen, there had been a complete cessation of anthrax.

In Stamford Extract Mfg. Co. v. Stamford Rolling Mills Co. (1924) 101 Conn. 310, 125 Atl. 623, where a manufacturer of dyes sought to enjoin another manufacturer's alleged pollution of the river by reason of the discharge into it of harmful metallic elements, and the decision for the defendant was upon the ground that it did not appreciably or materially pollute the river, and that its use of the water was reasonable, the court observed that the defendant had, at great expense, constructed and perfected a waste-disposal plant to remove the harmful elements which it had emptied into the river, which did in fact, except for temporary breakdowns, effectively accomplish that result; stating that the possibility of another overflow of such elements was very slight, in view of further precautions taken by defendant by way of added improvements in its acid neutralization system. It further said there was nothing more that the defendant could do, in view of the present state of knowledge, to render harmless its effluent; that to impose upon it any further requirements in that regard would necessitate its closing its plant.

A complaint seeking an injunction upon the ground that fish have been destroyed by defendant's pollution cannot be predicated upon evidence that fish were destroyed by its prior pollution of the stream, before the construction of its new plant, where the injurious act has already been completed. State ex rel. Wear V.

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