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Springfield Gas & E. Co. (1918)

204 S. W. 942.

Mo. App. The refusal to grant an injunction was held to be warranted, where defendant had admitted that he had previously polluted the stream, but had ceased doing so, in Sloan v. James (1900) 13 Pa. Super. Ct. 399, 7 Del. Co. Rep. 594, although under the particular circumstances the court ordered defendant to pay all the costs. And this case was expressly followed in refusing an injunction, where the injury to complainant from the pollution of a creek had ceased, defendant having abandoned its drainage system, and having no intention of using it or any other such system without modification so as not to injure plaintiff, in Benscoter v. Huntington Valley Camp Meeting Asso. (1900) 10 Kulp (Pa.) 355.

In Swan v. Adams (1876) 23 Grant, Ch. (U. C.) 220, an interlocutory injunction to restrain the continued pollution of a river by an oil refiner was refused, where his plant had been closed for over a year, and it was not shown that the refuse which he had previously discharged into a pit near the river had remained there.

But the granting of a perpetual decree enjoining a manufacturer from polluting a stream from which drinking water was obtained was held to be warranted in McCallum v. Germantown Water Co. (1867) 54 Pa. 40, 93 Am. Dec. 656, where it was shown that the water was actually polluted by defendant at the time the preliminary injunction was issued, but that thereafter the pollution had been removed and the water had become pure and wholesome.

And in Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, where defendant claimed that the fouling of the stream had been stopped by filtering tanks, the court considered that the preponderance of the evidence showed that the pollution still continued.

But the fact that defendant has unsuccessfully tried to abate the pollution, even though he has been to considerable expense and trouble in his effort, is not necessarily a good ground of defense.

Thus, in reply to the contention that the manufacturer had spent large sums upon purifying devices, which materially lessened the amount of deleterious matter discharged into the stream, it was said in Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, that it was reasonably practicable for him to still further largely reduce such amount.

In Worthen & Aldrich v. White Spring Paper Co. (1907) 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 was that defendant had effectively stopped the pollution by means of preventive devices, while the vice chancellor was satisfied that the defendant's efforts, together with those of the complainant, had to some extent remedied the pollution, he pointed out that, even if the defendant's devices had succeeded in actually preventing the pollution, these devices should be kept in repair, particularly in view of the unstable construction of the settling basins, concluding that unless an injunction should be issued defendant would not only be at liberty to discontinue the use of the settling basins, but would also be at liberty to allow them to become absolutely inefficient for the purpose for which they were designed.

And in State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, where, despite the defendant's attempt to abate the pollution by means of changes in its system of lagoons and similar contrivances, and by initiating scientific experiments to neutralize the effluent, some of the waste still leaked into the streams, the court said that it was not a good plea that the pollution was not then perceptible in the city because of the mitigation in quantity and quality of the effluent, nor that to take a poisonous dose one would have to drink more of the polluted water than would be required to drown in, where it was proved that the pollution was deleterious to health, by its having killed all the fish in the immediate vicinity of the

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factory during its first years of operation, and by its being still smelled and tasted in the city's drinking water. In connection with the above defenses, it was also urged that the inhabitants of the city would suffer no inconvenience if their filtration plant were of an up-to-date type and properly managed, which the vice chancellor characterized as a feeble and irrelevant argument; and he added that all of these extenuating circumstances would, perhaps, be admissible if the cause were for the suppression of a common-law nuisance, but that, as the present suit was in aid of the police power of the state, they were wholly beside the issue, since the statute itself peremptorily forbade such discharges into streams and their deposit upon the banks thereof.

The contention was apparently made that the pollution of the creek had been aggravated by the discharge of premature calves, to an extent not to be apprehended generally in the future, in Barton v. Union Cattle Co. (1889) 28 Neb, 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, but the court said that, while this might be deemed probable, an entire cessation of such source of defilement was scarcely to be expected, and that, aside from this, it was fully established that the maintenance of the stable in the manner contemplated by defendant would inevitably cause the destruction of the stream below.

But, as to the refusal of an injunction under the civil law based in part upon the ground that the defendant tried to relieve the worst of the pollution, see 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.

A mere assurance by defendant that he will remedy the pollution is not a good ground of defense.

So, the vice chancellor said, in State ex rel. Health Dept. v. Chemical Co. of America (N. J.) supra, that, under the circumstances, the defendant's confidence that it could successfully retain the refuse in its lagoons, and its as

surance that it would do so, could not be considered.

In Wanamaker v. Benzon (1916) 63 Pa. Super. Ct. 401, the court said that it would not do to ask the plaintiffs to continue to submit to the pollution, relying upon the prospect that at some time in the future the nuisance would be abated by some means other than those that were sought to be put into force under the prayer of the bill.

One of the defenses in Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120 Atl. 69, which influenced the court below to refuse to grant the injunction, was that the damage from the sewage was slight, and that defendant would remedy the condition at once. The appellate court, holding that the pollution should be enjoined, did not have anything to say as to this defense.

In Atty. Gen. v. Ewen (1895) 3 B. C. 468, where defendants claimed that they were making preparations effectually to prevent any escape of fish offal into the river, the court observed that, if they were successful in the preventive measures which they proposed, an injunction would not af

fect them.

j. Pollution expressly authorized.

As to the claim of a prescriptive right to pollute, and "lost grant," see subd. VI. o, infra. And as to estoppel see subd. VI. n, infra.

In some of the cases the defendant has sought to justify his pollution upon the ground that he was expressly authorized to do so under a statute or a license from some authority. No case has been found in which such a defense has prevailed.

Justification for the fouling of the river was claimed in Clowes v. Staffordshire Potteries Waterworks Co. (1872) L. R. 8 Ch. (Eng.) 125 for instance, upon the ground that the construction of the reservoir which caused the pollution was authorized under a statute, but the court held that defendant had the burden of proving that the statute took away from plaintiff his right to pure water, and that he had not proved that the statute did so.

In State ex rel. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569, the contention that the defendants were protected by an ordinance granting the privilege of laying the drain pipe connecting with the stream, upon the theory that it constituted an irrevocable license, was overruled. The lower court pointed out that the ordinance itself stipulated that if such drain should become a nuisance it should be removed, stating, further, that the statute authorizing the board to sue to abate a nuisance or source of foulness made no exception as to one which was licensed. The upper court declared, as a further reason why this defense could not be relied upon, that the ordinance was passed without authority, and that it was only where the act had been done by virtue of authority that the public would be estopped from pursuing the actor by remedial or primitive proceedings for the resulting public injury.

The defense that the sewage in question was discharged into the stream by order of the board of health, and that defendant would become liable for punishment for disobeying such order, was overruled by holding that the board had no authority to issue such an order, in Mann v. Willey (1900) 51 App. Div. 169, 64 N. Y. Supp. 589, affirmed without opinion in (1901) 168 N. Y. 664, 61 N. E. 1131.

And in Belton v. Baylor Female College (1896) Tex. Civ. App. 33 S. W. 680, the court said that, if the pollution which was complained of created a nuisance, the defendant could not justify under a pretended authority from the officers of the city, defendant having claimed that the city had authorized the sewer which caused the pollution.

One defense which was set up in Wanamaker v. Benzon (1916) 63 Pa. Super. Ct. 401, was that the equity court was ousted of jurisdiction by reason of the issuance of an order by the state health commission directing the borough to build a sewer across plaintiff's land. As to this, the court said that nothing that the department

of health could do would deprive the riparian owner of his right to protect the stream; that furthermore there was no evidence that such order was ever put into execution.

The defense that the sand bar in question was being removed under a permit from the state, as well as under a permit from the Federal government, the bar being an impediment to navigation, was made, and apparently overruled, in Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ. App., 163 S. W. 1023.

It will be noted that in the reported case (CARETTI V. BRORING BLDG. CO. ante, 1) the defendant sought unsuccessfully to avoid being enjoined, upon the ground that it constructed the sewage system in accordance with plans which were approved by the city, and that it had contracted to convey it to the city free of cost.

The defense that a covered stream, which was used as a sewer, had been adopted by the borough, and that accordingly the defendant landowner was not responsible for its pollution, was overruled in Wanamaker v. Benzon (Pa.) supra, where the borough did not build the conduit, and never exercised any control or supervision over it, the court declaring that the borough had done nothing that had contributed to the damage complained

of.

In reply to the defense that the canal proprietors were authorized by Parliament to allow the water from a brook to flow through their canal, which was interposed in Atty.-Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71. enjoining such pollution, it was said that when Parliament authorized the drawing of the water it was pure, and that fifty years previously it was comparatively pure; the court stating, further, that it began to become impure thirty years previously, and that the impurity had rapidly progressed, until it had become acute in the last two dry summers.

In Wallace v. M'Cartan [1917] 1 Ir. R. 377, where a certain drain was held to be a sewer within the meaning of the Public Health Act, the defendant sought to justify his emptying sewage

from his houses into it and the consequent flow of the sewage into an adjoining landowner's stream, so as to avoid the injunction, upon the theory that he had the absolute right to do so, regardless of consequences to others, the court, considering that defendant's object might have been to force the hand of the local council, which had failed to provide a proposed new sewer, and holding that his conduct was not only unreasonable, but also negligent in that he failed to avail himself of a certain statutory remedy to compel the sanitary authority effectually to drain the district, further stated that the statute upon which defendant relied did not confer upon him an absolute right to destroy his neighbor's property, and, distinguishing cases cited by defendant, said that cases where there was a reasonable, usual, and legitimate connection with a sewer for a number of years, without injury to a third party, were of no help in a case in which there had been a grave injury to a third party, and a new and deliberate connection made with an unsuitable sewer in an unreasonable and negligent manner, with full knowledge that a serious injury must necessarily follow to a neighbor.

In overruling the defense of an implied grant in Hunter v. Richards (1913) 28 Ont. L. Rep. 267, 12 D. L. R. 503, affirming (1911) 26 Ont. L. Rep. 458, 5 D. L. R. 116, where the defense rested upon the ground that plaintiff's predecessor conveyed the land to defendant's predecessor, with the understanding that the latter should build a sawmill, the court observed that the "doctrine of estoppel would be basely used if applied in defendant's aid," and further said: "But, assuming that in either way the grantor could not object to any injury affecting the lands now owned by the plaintiff, arising from a reasonable use of the mill stream for the purpose of sawmilling, that would give no everlasting right to continue early-day loose methods, even if early-day necessities made them then excusable; and it is made quite plain, upon the evidence, that present-day reasonable precautions

would prevent all that the plaintiff complains of; and, indeed, are all that he asks for. If the defendant's contention be right, they and a thousand and one other grantees of the Crown, and all persons claiming under them, would have the right still to pollute the waters of this province, in even more objectionable ways, because in early days that was commonly done." A claim that some sort of an equity (not based upon a prescriptive right) arose in favor of the defendant's upper mill, by reason of the fact that it was a more ancient structure than the plaintiff's lower mill, and was conveyed by a common grantor at an earlier date, was overruled 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 the vice chancellor observed that, the stream in question being a natural watercourse, the riparian proprietors had correlative rights, which were usufructuary, and that nothing could interfere with the rule of law except a positive reservation by the grantor.

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Seafield v. Kemp (1899) 1 Sc. Sess. Cas. 5th series, 402, is cited in 2 Scots' Dig. 1873-1904, col. 2383, as having held that where a vassal who had polluted a stream with refuse from a distillery which he held under a grant from his superior, which grant provided that he should not erect or carry on "any manufactures or operations which may be legally deemed a nuisance, .. but this declaration shall not apply to the distillery," the superior was not barred from objecting to the nuisance and interdicting the vassal from continuing to pollute, where the latter had failed to prove that it was impossible to carry on the distillery without polluting the stream, the court considering that the clause above quoted referred to the existence of the distillery, rather than to the vassal's method of working it.

k. Necessity of defendant's use. The matter of the reasonableness of defendant's use of the stream has

already been discussed in subd. III. c, 2, supra.

Independently of other considerations, the defendant at times has sought to show that his use of the stream was necessary. While some of the courts recognize that under certain circumstances, as, for instance, where a business has to be conducted in a certain place and cannot be conducted elsewhere, one may be justified in polluting the stream in connection with such a business, particularly if it cannot be avoided, or possibly if due care be exercised, yet the courts limit this doctrine strictly, and appear to apply it seldom, except possibly in the case of mining operations. (See in this connection 39 A.L.R. 911 et seq.)

In Weston Paper Co. v. Pope (1900) 155 Ind. 394, 50 L.R.A. 899, 57 N. E. 719, where the manufacturer contended that, inasmuch as he was engaged in a lawful business and conducting it skilfully and without negligence or malice, the discharge of the waste into the only available channel was absolutely necessary, and that thereby the detriment to the lower lands was damnum absque injuria,-the court said that he was not engaged in the development of any natural resource, or in any usual or ordinary use of his own land, but was engaged in a business which might be carried on elsewhere less injuriously to the rights of others, and declared: "No court, so far as we have observed, has gone so far as to recognize the right of a manufacturer to establish his plant upon the banks of a non-navigable stream, and pollute its waters by a business wholly brought to the place, entirely disconnected with any use of the land itself, and which he may just as well conduct elsewhere, without responding in damages to those injured thereby, and to injunction if the injury done is substantial and continuing."

In reference to the Pennsylvania rule that the use and enjoyment of a stream by an individual lower riparian owner must give way to the interests of the community, in order to permit the development of the natural

resources of the country, this rule having been laid down in Pennsylvania Coal Co. v. Sanderson (1886) 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453, with reference to pollution from mining operations (see 39 A.L.R. 911 et seq.), the New York court said: "We have never adopted that rule in this state, and no public necessity exists therefor, even if it would ever warrant the courts in relaxing rules for the protection of property of small value in the interest of some business required to develop the resources of the state, and in which much capital had embarked, giving employment to a great number of people. While the courts will not overlook the needs of important manufacturing interests, nor hamper them for trifling causes, they will not permit substantial injury to neighboring property, with a small but long-established business, for the purpose of enabling a new and great industry to flourish. They will not change the law relating to the ownership and use of property in order to accommodate a great business enterprise. According to the old and familiar rule, every man must so use his own property as not to injure that of his neighbor; and the fact that he had invested much money and employs many men in carrying on a lawful and useful business upon his own land does not change the rule, nor permit him to . . . so pollute the rest of the stream as to render it unfit for ordinary use." Strobel v. Kerr Salt Co. (1900) 164 N. Y. 303, 51 L.R.A. 687, 79 Am. St. Rep. 643, 58 N. E. 142, reversing (1897) 24 App. Div. 626, 49 N. Y. Supp. 1144, reargument denied in (1900) 165 N. Y. 617, 59 N. E. 1131.

In Shoffner v. Sutherland (1910) 111 Va. 298, 68 S. E. 996, where it was contended that the pollution of a stream by sawdust should not be enjoined, since it would have a very hurtful effect upon the vast lumber interests, and would hinder the development of that great source of wealth, the court said, quoting from its opinion in another nuisance case: "It would be a source of regret if, in the administration of

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