than to the defendant from allowing,

it.

Decision was reserved upon the point whether the injunction should be denied because it would hurt the defendants more than it would help the plaintiffs, in Lawrie v. Silsby (1903) 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106, where it was claimed that the damage from pollution was small and growing smaller all the time.

In reply to the defense that the injury from emptying sewage into a stream during only the two weeks' period of a race meet was slight and of a temporary character, it was said in Bright v. Niagara Racing Asso. (1921) 20 Ont. Week N. 46, that whatever force this argument might have if the defendants were a public body carrying on an undertaking for the benefit of the whole public, it could not be invoked in the present case, where defendants were engaged in a private enterprise.

m. Laches.

Generally as to the effect of delay in seeking equitable relief against nuisance, see annotation in 6 A.L.R. 1098 [Nuisances, § 163].

As to estoppel, see subd. VI. n, infra. And as to prescriptive right, see subd. VI. o, infra.

It is clear that, upon a proper showing, laches upon the part of the plaintiff would be a good defense to a bill of this sort, and occasionally the denial of an injunction has been squarely based upon this ground.

Thus, in Wood v. Sutcliffe (1851) 2 Sim. N. S. 163, 61 Eng. Reprint, 303, the vice chancellor said: "The principal ground upon which I conceive that I must refuse this injunction is that the plaintiffs have not used due diligence in vindicating their rights. They stood by whilst the defendants were constructing their works, and they suffered the defendants to use their works after they were constructed, from the beginning of 1845 until the beginning of 1850, a period of very nearly five years, without giving them any hint that they were doing anything that they had not a lawful right

46 A.L.R.-5.

to do; and, if there had been nothing else in this case, I should have been of opinion, on this ground alone, that the plaintiffs were not entitled to the injunction."

In Warren v. Hunter (1853) 1 Phila. (Pa.) 414, where the complainant had been in possession of a factory for a year and a half without making any objection to the pollution, the court considered such delay to be a good ground for refusing to grant an injunction, in view of the insufficiency of the proof that defendant was responsible for any increase in the pollution.

And in Norristown Woolen Co. v. Taubel (1901) 28 Pa. Co. Ct. 194, the court took the view that, by reason of delaying suit more than two and a half years after defendant started his mill, during which time the mill was enlarged, plaintiff lost his right to enjoin the pollution, even though he complained before the mill was built, since defendant had stated his reasons for casting waste water into the creek, and plaintiff's silence afforded some assurance that the explanation was satisfactory, especially when no steps were taken to interfere at the time when the plant was enlarged.

In Wanamaker v. Bushnell (1913) 22 Pa. Dist. R. 926, where plaintiffs allowed sewage drainage over their land for years without complaint, the court concluded that, in view of their laches, it was not warranted in granting such an injunction as would deny to defendants a reasonable time to escape a great outlay of money, stating that plaintiffs' laches furnished some cause for withholding the strong arm of the law, but the court granted an injunction, to be effective only after the expiration of a year.

In overruling the defense of laches, however, in Wanamaker v. Benzon (1916) 63 Pa. Super. Ct. 401, and holding to be warranted a subsequent decree, which was awarded against another defendant by the same judge, in favor of the same plaintiff and apparently in respect to the continuance of the same sort of, or a very similar, pollution, there being no indication in the report as to its having been grant

ed conditionally, the appellate court reasoned that the pollution of the stream was gradual, that plaintiff had submitted to it for several years before the conditions grew worse, when he sued some other offenders to enjoin it (apparently referring to the Bushnell Case), and that the present action was notice that any seeming acquiescence was at an end. And the court took the view that, when the defendants inclosed the stream, plaintiff was not required to anticipate that they would make an improper use of such construction, but that he had the right to assume that it would be used to carry surface drainage only, since the greater part of the borough was still dependent upon cesspools; and concluded that there was no such delay on plaintiff's part as would give defendant the right to continue to menace the health of the occupants of plaintiff's dwelling by depositing filth in the stream.

Likewise in the following cases the courts have held that the circumstances did not constitute laches.

In reply to the contention that complainant had stood by and seen the respondent expend large sums of money on its plant, knowing that the pollution of the water would be the neccessary consequence of running the plant, it was said in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611: "This objection must be made on the theory that it is so much the custom of manufacturers to pollute the rivers that it is to be presumed they will do it. and therefore the complainant should have been on its guard, and should have given notice if it intended to object to the pollution. But ordinarily it is not to be presumed that one person intends to violate the rights of another until he threatens to do it, and the owners of the lower mill could claim no damages until they were actually injured. And it seems that there had been continual complaints. The complainant was not obliged to sue immediately, and the motives which may have induced it to postpone suing do not seem material to the present case. . And, from

all the evidence, we cannot see that the complainant has been guilty of laches which should prevent this suit."

The defense of laches, which was advanced in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, was overruled thus: "Why should the appellees be denied relief merely because they were not hasty in seeking a remedy from the courts. It was not until the appellees became convinced that typhoid fever had been contracted by some of the inmates of the institution from the condition of the water that they sought the aid of the law. They should not be denied relief because they delayed as long as they believed it to be safe to those in their care before resorting to extreme measures."

The contention of laches was overruled in Desberger v. University Heights Realty & Development Co. (1907) 126 Mo. App. 206, 102 S. W. 1060, where the plaintiff had been informed of the defendant's general plan of improving its property, but had not been told that this plan included the changing of the course of the river.

And a finding that the plaintiff had not, by laches, lost his right to the injunction, was held to be fully justified in Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468.

Although in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, where it was claimed that the public had submitted to the pollution for about ten years, allowing defendants to continue to draw the polluted water into the canal all that time, and to incur expense for boats, it was intimated that laches might be imputed in case of an unreasonable delay upon the part of a single individual in bringing a bill to enjoin a private nuisance from pollution,-the court considered that a gradual and growing evil, developing into a public nuisance after a time, as in the case at bar, stood upon a different footing, and said that as to such a nuisance a defense founded upon defendants' faith in being allowed to continue the nuisance could not be supported.

n. Estoppel.

As to laches, see subd. VI. m, supra. As to the pollution being expressly authorized, see subd. VI. j, supra.

It would seem that plaintiff's conduct in encouraging, or expressly consenting to, defendant's use of the stream, would work an estoppel so as to preclude his being granted an injunction, and possibly also his actual knowledge of defendant's intention to pollute to an appreciable extent, coupled with his failure to object thereto, where the facts are sufficiently established.

Thus, landowners were held to have waived their right to have a stream flow in its natural purity, and thus not to be entitled to enjoin the discharge of sewage into it by others, where they had not only consented to such use by some parties, but had themselves made the same use of it, in Kemper v. Widows' Home (1881) 6 Ohio Dec. Reprint, 1049.

In Tuttle v. Church (1892; C. C.) 53 Fed. 422, appeal dismissed in (1894) 6 C. C. A. 685, 5 U. S. App. 671, the court refused to enjoin ona who engaged upon a large scale in the business of "expressing" oil from fish and making fertilizers, where a summer resident claimed that thereby the river and bay near his house were rendered unfit for bathing, fishing, and sailing, where it was shown that complainant had lived near the works for several years without objecting to the alleged nuisance.

And the fact that the owner of the pasture land had acquiesced, knowing of the erection of the bathhouse where diseased persons were bathed, without making any objection, and that he must have known its purpose, was held to estop him from enjoining the pollution therefrom, in Barnard v. Sherley (1893) 135 Ind. 547, 24 L.R.A. 568, 575, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117.

The half of the equally divided court which prevailed in Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, held that the defendant beach resort was estopped from relying upon a right to use the lake for bathing purposes, by reason

of its constructive knowledge, at the time of its purchase of the land, that the city had previously bought the adjoining land from the same grantor, and its actual knowledge at that time of the fact that the city was then taking its supply of drinking water from the lake by means of its plant, which was plainly visible. The view of the other judges, that the city was not entitled to the injunction, rested upon other grounds.

In Swan v. Adams (1876) 23 Grant, Ch. (U. C.) 220, it was said that the conduct of one of the plaintiffs in giving a license to dig a drain, and in lying by so long with knowledge of the pit from which the pollution was claimed to have flowed, prevented his asking an interlocutory injunction,unless an increased pollution were shown, which was not the case. But see Hunter v. Richards (1913) 28 Ont. L. R. 267, 12 D. L. R. 503, 5 D. L. R. 116, affirming (1911) 26 Ont. L. Rep. 458, supra, VI. j.

As to the refusal of an injunction, upon the ground that the inhabitants of the village consented to defendant's pollution, see Weir v. Claude (1889) 16 Can. S. C. 575, affirming (1888) Montreal L. Rep. 4 Q. B. (Quebec) 197, which reversed (1886) Montreal L. Rep. 2 S. C. 326, infra, VI. o.

Dunn v. Hamilton (1838) 3 Shaw. & M. 356, affirming (1837) 15 Sc. Sess. Cas. 1st series, 853, is cited in 4 Scots' Dig. col. 400, as having held that "a landlord, by the terms of the lease granted by him, as also by the tenor of his defenses to an action to interdict pollution, may hold himself out as having authorized the nuisance."

And see Ingraham V. Dunnell (1842) 5 Met. (Mass.) 118, supra, VI. a, where the court expressed doubt as to evidence of an estoppel, and suggested that the case be tried in a law court.

See also dictum in Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, infra, VI. p.

But unless the facts show very clearly that the plaintiff either expressly or impliedly consented that defendant should pollute the stream to the extent to which he did, the de

fense of estoppel will not as a rule prevail.

Thus, in reply to the contention that plaintiff had so acted, by encouraging the erection of defendant's factory, by acquiescing in the use of the stream, and by delay in complaining of the injurious effects of such use, as to preclude him from claiming injunctive relief, it was said in Snow v. Williams (1879) 16 Hun (N. Y.) 468: "The doctrine of estoppel, based upon encouragement or acquiescence, rests upon the ground that the party has so acted as that an attempt on his part to stop the nuisance or recover damages therefrom would be a positive fraud. If, therefore, the thing was something which might or might not become a nuisance, according to the circumstances of its use, he would not be estopped unless he knew the precise method of its use, and was fairly chargeable with notice of its results.

There is no finding