plaintiff, since he had made no use of the lot for a residence or a pasture.

1. Plaintiff's injury small, as compared with defendant's if enjoined ("comparative injury” doctrine).

As to the necessity of defendant's use, see subd. VI. k, supra.

A defense which has been frequently invoked is the so-called "comparative injury" doctrine, which is the contention that plaintiff's injury is or would be small as compared with the defendant's in case the latter should be enjoined. While some of the courts appear to have been influenced by this doctrine so as to apply it to the extent of suspending the operation of an injunction, and occasionally injunctive relief has been denied altogether upon the theory that defendant's injury would be greater than plaintiff's, yet as a rule the courts of this country are reluctant to apply the doctrine, and many of the decisions apparently go to the length of repudiating the doctrine entirely.

See dictum in Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, supra, VI. a, apparently recognizing the doctrine.

In Elmhirst v. Spencer (1849) 2 Macn. & G. 45, 42 Eng. Reprint, 18, where the Lord Chancellor doubted whether plaintiff was actually injured at all from the pollution of the stream, he declared, in commenting on the insufficiency of the evidence: "Another consideration here is which side will suffer most, the defendants from the granting of the injunction, or the plaintiff from its being withheld. . . There can be no doubt then as to the balance of inconvenience. If this injunction stands there will be a total cessation of the defendants' works, which would amount to the greatest injury."

And in Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, although the decision turned upon other grounds, it was said that to grant the injunction would have the effect of seriously injuring, if not ruining, the defendants, and that, weighing the injury that might accrue to the one party or the other by granting or re

fusing the injunction, if the decision were to turn upon that point alone, it would have to be refused. It may be noted that in this case the plaintiff had already recovered damages of a farthing from defendants for the pollution of the stream.

With respect to the matter of enjoining objectionable odors from a fish-oil factory, after refusing, on other grounds, to enjoin an alleged pollution of the river and bay, it was said in Tuttle v. Church (1892; C. C.) 53 Fed. 422, (appeal dismissed in (1894) 6 C. C. A. 685, 5 U. S. App. 671) that the effect of an injunction would be to close the defendants' works, destroy their business, and thereby cause the loss of a large amount of invested capital, while the injury to the plaintiffs (summer residents) was comparatively slight.

And the "comparative injury" doctrine was expressly recognized, in denying injunctive relief in respect to the partial and temporary pollution of pasture land by oil deposited in a creek, but allowing damages therefor, in Sussex Land & Live Stock Co. v. Midwest Ref. Co. (1922; D. C.) 276 Fed. 932, affirmed in (1923; C. C. A. 8th) 34 A.L.R. 249, 294 Fed. 597. But see Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, infra.

In State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, the vice chancellor stated that at a former hearing the pollution of the streams was established, but that as it was not appreciable in the city, which obtained its water supply therefrom, and as defendant was furnishing to the Federal government an exclusive product for the prosecution of the World War, the inconveniences of the parties, in the trying circumstances, were considered and the injunction was withheld. But the decree was issued a few months later, after the Armistice, upon a further hearing.

The contention that the granting of the injunction would work a great hardship upon the defendant, and also upon others owning houses connected with the sewer, and would menace the

health of people in that vicinity, was answered by the court in the reported case (CARETTI v. BRORING BLDG. Co. ante, 1) by declaring that,

even

though this were true, it would not prevent the issuance of an injunctíon if the conditions complained of were not changed. However, the court admitted that the sudden closing of the sewer would create a very serious situation, so in granting the injunction it decreed that it should be effective only unless, within a reasonable time, the defendant should so change its sewerage system as to avoid injuring the plaintiff.

In Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, where plaintiff's damage was not shown, the court said, in refusing the injunction, that it was no small matter to silence defendant's factory, which cost $120,000 and employed nearly 300 hands.

And in reply to the contention that the injury to defendants, owners of houses, would be greater than that to the plaintiff, if the former should be enjoined from discharging sewage into a stream so as to pollute plaintiff's meadow and lawn, the court in Wanamaker v. Bushnell (1913) 22 Pa. Dist. R. 926, stated that it could not apply that rule to the facts of the case, and that even when the damages were slight, as they were not in the present case, where the act complained of was such that, by its repetition or continuance, it might become the foundation or evidence of adverse right, a court of equity could interpose by injunction. However, it added that the rule of greater injury to the defendants might afford some reason for extending the time when the injunction should go into effect, and granted a decree upon the condition that it should not be operative for a year. And in this connection the court concluded that an injunction requiring an immediate disconnection of the houses with the existing sewers would be an undue hardship upon the defendants, and might prove disastrous to the health of their families and the community in general, and that to compel defendants to construct cesspools at once would lead to a large ex

penditure of money, which would undoubtedly be lost and wasted if the borough should construct its sewer system and disposal plant as contemplated.

In granting an injunction restraining an oil concern from polluting a stream used by an operator who was likewise engaged in boring for oil, but upon the condition that it be suspended for two years to give defendant ample opportunity to remedy the pollution, the court in Stollmeyer v. Petroleum Development Co. [1918] A. C. (Eng.) 498-P. C., said that it must grant the injunction, but that it would not be right to enforce it at once, since the loss to the defendant would be out of all proportion to the plaintiff's gain, taking into consideration an agreement by the defendant to pay from time to time such damages as might be shown.

Although it was said in Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480 (dictum), that, upon a preliminary application for an injunction to enjoin a pollution, the judge might find that the consequences of granting the preliminary injunction might be of much greater damage to the defendant than the injury alleged was to the plaintiff, and for that reason he might decline to interfere before the trial,-in holding that the plaintiff should have been granted a decree where damages alone had been awarded, the court said that it would seem that the main ground why the injunction was denied for the time being was the great injury which the defendant would sustain by the consequent destruction of the extensive cheese factory which he had erected; and, after observing further that plaintiff did not ask that the manufactory should be destroyed, and stating that the pollution could probably be avoided without any very great expense and without any real injury to the manufactory, it added in this connection: "But at all events the law does not allow one to appropriate or injure the property of another permanently, offensively, and annoyingly, and permit him also to compel the plaintiff to seek redress in successive suits at law; especially when it is so

difficult, as in this case, to give any exact proof of the actual damages."

In Whalen v. Union Bag & Paper Co. (1913) 208 N. Y. 1, 101 N. E. 805, reversing (1911) 145 App. Div. 1, 129 N. Y. Supp. 391, the court refused to apply, and seems to have shattered, the "balancing of injuries" doctrine, in holding the plaintiff farmer entitled to an injunction against the defendant pulp manufacturer, where the latter's mill represented an investment of over $1,000,000, and employed 400 or 500 operatives. The court said: "The setting aside of the injunction was apparently induced by a consideration of the great loss likely to be inflicted on the defendant by the granting of the injunction, as compared with the small injury done to the plaintiff's land by that portion of the pollution which was regarded as attributable to the defendant. Such a balancing of injuries cannot be justified by the circumstances of this case. It is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction shall issue.

One of the troublesome phases of this kind of litigation is the difficulty of deciding when an injunction shall issue in a case where the evidence clearly establishes an unlawful invasion of a plaintiff's rights, but his actual injury from the continuance of the alleged wrong will be small as compared with the great loss which will be caused by the issuance of the injunction. This appeal has been presented as though that question were involved in the case at bar, but we take a different view.

Even as reduced at the appellate division, the damages to the plaintiff's farm amount to $100 a year. It can hardly be said that this injury is unsubstantial, even if we should leave out of consideration the peculiarly noxious character of the pollution of which the plaintiff complains. The waste from the defendant's mill is very destructive, both to vegetable and animal life, and tends to deprive the waters with which it is mixed of their purifying qualities. It should be borne in mind, also, that there is no claim on the part of the

defendant that the nuisance may become less injurious in the future. Although the damage to the plaintiff may be slight as compared with the defendant's expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts. of equity nor law can be guided by such a rule; for, if followed to its logical conclusion, it would deprive the poor litigant of his little property by giving it to those already rich? It is always to be remembered in such cases that 'denying the injunction puts the hardship on the party in whose favor the legal rights exists, instead of on the wrongdoer.' 5 Pom. Eq. Jur. § 530. In speaking of the injustice which sometimes results from the balancing of injuries between parties, the learned author from whom we have just quoted sums up the discussion by saying, "The weight of authority is against allowing a balancing of injury as a means of determining the propriety of issuing an injunction.''

But, in refusing an injunction on another ground, it was declared in Driscoll v. American Hide & Leather Co. (1918) 102 Misc. 612, 170 N. Y. Supp. 121, affirmed without opinion in (1918) 184 App. Div. 916, 170 N. Y. Supp. 1026, that the consequences of its issuance would be nothing less than a public calamity, the court referring to the decision of the court of appeals in Whalen v. Union Bag & Paper Co. (N. Y.) supra, as an instance of the "fallacy of the argument that, because there is pollution, these defendants, from the very nature of their effluent, must have caused it;" and stating that in that case a sulphide mill representing an investment of more than $1,000,000 was restrained from polluting the same stream by discharging its mill effluent at a point upstream from these defendants, and that as a result that mill had been shut down ever since the year 1913.

In Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, where the defendant urged that the granting of the injunction would be ruinous to a vast amount of property owned by butchers and others, and destructive:

to one of the most important branches of trade in the state, the court was of the opinion that the apprehension was not well founded, and answered the objection further by remarking: "The business of the appellant and those situated like him will certainly be destroyed, if the condition of things shown in this case is allowed to go on and increase, to say nothing of the interference with the comfort, health, and development of the whole neighborhood affected by the pollution of the stream. Certainly, there must be a remedy, and a prompt and thorough one, for such an evil, in and adjacent to a large and rapidly growing city; and we know of no remedy equal to the emergency, but that of the protective and preventive interference by injunction."

And in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, the court said: "This improvement company has expended large sums of money for the development and drainage of its property, and it is to be regretted if the location be such that no method of drainage can be reasonably adopted which will not affect the rights of others, but if we are to be governed by legal principles that are thoroughly and clearly established, in this state as well as elsewhere, there can be no doubt that the facts proven admit of but one conclusion, to be reached. . . When then it is shown that the appellants not only empty into this stream substances which are offensive to taste and smell, but such as are liable to produce disease, can a court of equity hesitate to grant relief merely because the offenders may be subjected to loss or inconvenience?"

In Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, where there was evidence, on the one hand, of the great value of complainants' property and the variety of uses they made of the water, and, on the other, of the extent and value of de

legitimately, influence a court of equity in the exercise of its discretion. But these considerations can exercise no influence in the determination of the present case. The legitimate ground for the allowance of the injunction is not so much the intrinsic value of the property sought to be protected, as its essential character and its importance to the complainants. . . . On the other hand, it will be observed that the injunction asked for is not designed to stop the defendants' works, or to interfere with their operations, but simply to restrain them from discharging offensive matter into the stream, and thereby polluting the waters which flow upon the complainants' land. There is no evidence in the cause that these refuse materials cannot, at small cost or inconvenience, be discharged elsewhere; and if they cannot, it was the defendants' own folly that subjects them to the greater cost and difficulty of guarding against an invasion of the complainants' rights."

In reply to the contention that the injury complained of was trifling, and that plaintiff might by a small outlay provide means for watering his stock without resorting to the creek, the court in Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454, distinguishing that case from Jacobs v. Allard (1869) 42 Vt. 303, 1 Am. Rep. 331, said that it did not think that the comparatively small cost at which plaintiff might be able to supply water for his cattle from an independent source could be considered in connection with its right to have the stream remain uncontaminated. And the court, citing other decisions, said that in most or all of them it was held that an injunction would be granted without regard to the magnitude of the interest enjoined, and that it was manifest that defendant's business could not be carried on in the magnitude described in the evidence, without in

fendants' manufacturing operations fringing upon the rights of the lower

and the benefit thereby conferred upon the community, the court said: "These are considerations which naturally do, and which perhaps in some cases may

landowners upon a stream of such small size, the defendant having contended that the general rule was "subject to a qualification inherent in the

nature of the subject and the relative rights of the parties."

In overruling the contention that the defendant manufacturer was prosecuting a business useful in its character, beneficial to the public, and furnishing employment to a large number of men, that the business was conducted with skill and prudence and with the most approved machinery, and that if damage resulted it did not arise from his fault, since the ancient rigor of the law had been modified in furtherance of industrial progress and development, the court in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, supra, VI. c, said: "This contention finds no support, either in principle or authority. It is rudimentary that no man can be deprived of life, liberty, or property but by due process of law, nor can private property be taken, even for a public use, without just compensation first having been made or received; and under no form of government having regard for man's inalienable rights can one be permitted to deprive another of his property without his consent and without compensation, on the plea that the injury to the one would be small, and the advantage to the other, or even to the public, would be great. This principle has its sanction in the consciousness and right reason of every man, and is asserted by the concurrent judgments of all courts which administer an enlightened system of jurisprudence."

Although in Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719, the court said that to deprive the manufacturer altogether of the use of the stream for drainage would compel him to abandon his business, and thus render his plant of but little value, it also declared, in connection with the further defense that the business was conducted in a careful manner and without malice, that the fact that the manufacturer had expended a large sum of money in the construction of its plant could make no difference in its rights to the stream; since, before locating his plant, he was bound to know that every riparian proprietor was entitled

to have the waters of the stream come to him without corruption, subject only to the reasonable use of the water for domestic purposes, that he was bound to determine at his peril whether he could conduct the business without injuring his neighbors, and that the magnitude of the investment furnished no reason why he should escape the consequences of his own folly.

In Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468, it was said that the injunction could not properly be refused upon the ground of the magnitude of the defendant's interests and the importance of its business. In this connection the court observed that the effect of the injunction would not be to stop defendant's works or interfere with its manufacturing industry, but simply to restrain it from discharging offensive matter into the stream, and that it did not appear that such matter could not readily, and at small expense, be otherwise provided for.

As to the claim that great damage would be caused to the defendants if they should be enjoined from polluting the stream, it was said in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210, that they had no right to interfere with plaintiff's right to have the stream unpolluted, in order to make money for themselves,—a decision on other grounds upon a subsequent appeal in (1899) 42 App. Div. 409, 59 N. Y. Supp. 203, being reversed in (1901) 167 N. Y. 462, 60 N. E. 757.

The court in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, was not impressed with the contention that the lesser use of the stream should give way to the more valuable use, this intention being based upon the ground that the state was largely interested in manufacturers, and its wealth depended mainly upon their prosperity.

In Salem Iron Co. v. Hyland (1906) 74 Ohio St. 160, 77 N. E. 751, denying an injunction upon other grounds, the court said that it was not required to consider whether an injunction should be denied because less injury would result to the plaintiff from denying,