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(Md., 132 Atl. 619.)

plan of looking after the health of the city, it has made occasional inspections of the operation of the septic tank and the character of effluent which came from it. It also has a contract with the appellee whereby the latter has agreed to convey the sewerage system to the city whenever the city requests it to do so, but there is no provision in this contract requiring the city to ever take over the sewer.

It is difficult to understand on what legal principle the city, under the foregoing state of facts, could be held to have enough interest in this sewer to require its being made a party to this suit. The city did not build the sewer, it did not own it, and conceding for the sake of the argument, but not deciding, that the character of supervision exercised by the city could eventually give it certain prescriptive rights in sewer, it cannot be held in this case that any such rights were acquired because this supervision has existed for only four or five years at most. For this, as well as other reasons, the present case is clearly distinguishable from the case of Kranz v. Baltimore, 64 Md. 491, 2 Atl. 908, in which our predecessors held that the city of Baltimore had acquired by more than 20 years' user and supervision the right to use a run as a sewer, and was responsible for failing to keep it in repair. In the case now before us, it would seem that whatever rights the city has in the sewer complained of are both prospective and uncertain. It may never exercise its right under the contract to acquire the sewer, and it clearly might not exercise, for the required 20 years, that supervision and user which would be needed to give it a right by prescription. At the present time. it exercises only a limited supervision over the sewer, and as we know of no authorities holding that such a supervision, carried on for only a few years, gives any proprietary interest to a municipality, we are compelled to hold that the city has no proprietary interest in the sewer.

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The division engineer of sewers for the city testified that the granting of an injunction in this case would of evidence. "slow up" sewer

-effect

work throughout the city, but this statement alone is certainly not sufficient to establish that the city has any interest in this sewer of which the courts can take cognizance. If the city knows of facts and reasons not shown by this record which would add force to the argument that it should be made a party, it should have intervened in the case below and thus secured an opportunity to show those facts and reasons. The officer in charge of its sewerage system and three or four other city officials testified in the case, and appear to have assisted the appellee in preparing its case, so that it cannot now be successfully maintained that the city had no knowledge of the suit, and as it failed to intervene, we are forced to the conclusion that it did not wish to do so, or that it had no additional evidence to offer on the point under discussion.

Our views on this branch of the case render it unnecessary to consider the appellee's further contention that, if the city were made a party, no injunction should issue because the sewer complained of would then fall within that class of cases in which the courts have held that municipalities, when acting under legislative authority, may, for the benefit of the public, do certain things which might otherwise be considered nuisances. This doctrine, within certain limits, has received the apparent sanction of this court in

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D. C.) 205 Fed. 195 (location of lumber camp enjoined). But see Tuttle v. Church (1892; C. C.) 53 Fed. 422 (alleged pollution from fish works, injunction denied) appeal dismissed in (1894) 6 C. C. A. 685, 5 U. S. App. 671 and Sussex Land & Live Stock Co. v. Midwest Ref. Co. (1923; C. C. A. 8th) 34 A.L.R. 249, 294 Fed. 597, affirming (1922; D. C.) 276 Fed. 932 (denied for discharge of oil).

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California. Bowen V. Wendt (1894) 103 Cal. 236, 37 Pac. 149 (pollution from slaughterhouse enjoined); People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co. (1895) 107 Cal. 214, 48 Am. St. Rep. 125, 40 Pac. 486 (from hogpen and manure pile enjoined); People v. Truckee Lumber Co. (1897) 116 Cal. 397, 39 L.R.A. 581, 58 Am. St. Rep. 183, 48 Pac. 374 (from sawdust and other substances enjoined). And see Glassell v. Verdugo (1895) 108 Cal. 503, 41 Pac. 403 (as to joinder of defendants). But see Spring Valley Waterworks v. Fifield (1902) 136 Cal. 14, 68 Pac. 108 (decree against dairymen denied); and Fisher v. Feige (1902) 137 Cal. 39, 59 L.R.A. 333, 92 Am. St. Rep. 77, 69 Pac. 618 (alleged pollution from felling of trees).

Colorado. See contra, Cushman v. Highland Ditch Co. (1893) 3 Colo. App. 437, 33 Pac. 344 (decree refused for threatened pollution from alkali water).

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Delaware.-Jessup & M. Paper Co. v. Ford (1887) 6 Del. Ch. 52, 33 Atl. 618 (pollution by manufacturer enjoined).

Georgia.-Horton v. Fulton (1908) 130 Ga. 466, 60 S. E. 1059 (by sawmill operator enjoined); Manning v. Webb (1911) 136 Ga. 881, 72 S. E. 401 (discharge of sewage enjoined).

Idaho. See contra, 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 (as to defendant's right to have cattle wade through ditch).

Illinois.-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 (proposed underdraining of cemetery enjoined); Sutton v. Findlay Cemetery Asso. (1915) 270 Ill. 11, L.R.A.1916B, 1135, 110 N. E. 315, Ann. Cas. 1917B, 559, reversing (1914) 190 Ill. App. 455 (underdraining enjoined after work started).

Indiana.-Weston Paper Co. v. Pope (1900) 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719 (pollution by manufacturer enjoined). But see Barnard v. Sherley (1893) 135 Ind. 547, 568, 24 L.R.A. 568, 575, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117 (injunction refused as to artesian well in which people bathed).

Iowa. See contra, Bennett v. National Starch Mfg. Co. (1897) 103 Iowa, 207, 72 N. W. 507 (decree denied, pollution ended); Perry v. Howe Co-op. Creamery Co. (1904) 125 Iowa, 415, 101 N. W. 150 (creamery nuisance already abated); Spence V. McDonough (1899) 77 Iowa, 460, 42 N. W. 371 (decree not warranted on pleading).

Maine. Lockwood Co. v. Lawrence (1885) 77 Me. 297, 52 Am. Rep. 763 (pollution from sawdust, etc., enjoined).

Maryland.-Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419 (slaughterhouse pollution enjoined); Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96 (manufacturer enjoined as to pollution from hogpens); West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982

(pollution from sewage enjoined); Neubauer v. Overlea Realty Co. (1923) 142 Md. 87, 120 Atl. 69 (sewage enjoined); CARETTI V. BRORING BLDG. Co. (reported herewith) ante, 1) (sewage enjoined). And see Fahnestock v. Feldner (1904) 98 Md. 335, 56 Atl. 785 (as to defense that plaintiff had polluted stream). But see Helfrich v. Catonsville Water Co. (1891) 74 Md. 269, 13 L.R.A. 117, 28 Am. St.. Rep. 245, 22 Atl. 72 (as to landowner's right to let cows use stream in ordinary way).

Massachusetts.-Merrifield v. Lombard (1866) 13 Allen, 16, 90 Am. Dec. 172 (pollution by manufacturer enjoined); Harris v. Mackintosh (1882) 133 Mass. 228 (threatened pollution by manufacturer); Martin v. Gleason (1885) 139 Mass. 183, 29 N. E. 664 (hotel proprietor's discharge of sewage enjoined); Parker v. American Woolen Co. (1907) 195 Mass. 591, 10 L.R.A. (N.S.) 584, 81 N. E. 468 (manufacturer enjoined); MacNamara Taft (1908) 196 Mass. 597, 13 L.R.A. (N.S.) 1044, 83 N. E. 310 (manufacturer enjoined). But see Ingraham v. Dunnell (1842) 5 Met. 118 (injunction against bleachery denied, damages adequate); Brookline v. Mackintosh (1882) 133 Mass. 215 (alleged threatened pollution not enjoined); Rockport v. Elwell (1914) 219 Mass. 287, 106 N. E. 994 (alleged pollution from glue factory).

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Michigan.-Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441 (pollution from bathing at beach resort enjoined, equally divided court); Paterson v. Dust (1916) 190 Mich. 679, 157 N. W. 353 (houseboats enjoined from anchoring near beach). But see Klein V. Power (1920) 212 Mich. 701, 180 N. W. 383 (alleged pollution through toilet, none in house).

Minnesota.-Red River Roller Mills v. Wright (1883) 30 Minn. 249, 44 Am. Rep. 194, 15 N. W. 167 (pollution from sawdust enjoined).

Missouri.-Schumacher v. Shawhan (1902) 93 Mo. App. 573, 67 S. W. 717 (discharge of offal from distillery enjoined); Desberger V. University Heights Realty & Development Co.

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Nebraska.-Barton v. Union Cattle Co. (1889) 28 Neb. 350, 7 L.R.A. 457, 26 Am. St. Rep. 340, 44 N. W. 454 (pollution from cattle enjoined).

New Jersey.-Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335 (pollution from bleachery enjoined); Atty. Gen. v. Steward (1869) 20 N. J. Eq. 415, injunction made perpetual in (1871) 21 N. J. Eq. 340 (proposed pollution from slaughterhouse enjoined); State ex rel. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569 (hotel sewage enjoined); 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 (manufacturer enjoined); State ex rel. Board of Health v. Ihnken (1907) 72 N. J. Eq. 865, 67 Atl. 28 (plaintiff entitled to enjoin pollution from creamery); 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 (paper manufacturer enjoined); State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164 (manufacturer enjoined).

New York.-Davis v. Lambertson (1868) 56 Barb. 480 (pollution from hogpens and whey enjoined); Seaman v. Lee (1877) 10 Hun, 607 (house refuse enjoined); Snow v. Williams (1879) 16 Hun, 468 (surplus whey enjoined); Board of Health v. Copeutt (1893) 140 N. Y. 12, 23 L.R.A. 485, 35 N. E. 443, affirming (1893) 71 Hun, 149, 24 N. Y. Supp. 625 (pollution from damming enjoined); 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,

col. 391 (sewage (sewage enjoined); Buccleuch v. Cowan (1866) 4 Sc. Sess. Cas. 3d series, 475, and in (1866) 5 Sc. Sess. Cas. 3d series, 214, as cited in col. 390 of the same Digest (bill against paper makers, later decision on other grounds in (1876) L. R. 2 App. Cas. (Eng.) 344, supra); Rigby v. Downie (1872) 10 Sc. Sess. Cas. 3rd series, 568, as cited in 4 Scots' Dig. col. 390 (manufacture apparently enjoined); Buccleuch v. Brown (1874) 1 Sc. Sess. Cas. 4th series, 1111, as cited in 2 Scots' Dig. 1873-1904, col. 2384 (paper makers enjoined); Moncreiffe v. Perth Police Comrs. (1886) 13 Sc. Sess. Cas. 4th series, 921, as cited in that Digest in the same column (nature of pollution not indicated); Seafield v. Kemp (1899) 1 Sc. Sess. Cas. 5th series, 402, as cited in 2 Scots' Dig. 1873–1904, col. 2383 (pollution from distillery apparently enjoined). But see Fleming v. Gemmill [1908] S. C. 240, cited in Scots' Dig. 1904-1914, col. 1132 (as having refused an injunction).

Canada.

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 (pollution from mill enjoined); Fisher & Son v. Doolittle & Wilcox (1912) 22 Ont. Week. Rep. 445, 3 Ont. Week. N. 1417, 5 D. L. R. 549 (pollution from quarry débris enjoined); Bright v. Niagara Racing Asso. (1921) 20 Ont. Week. N. 46 (pollution from sewage during race meet enjoined); St. Johns v. Barker (1906) 3 N. B. Eq. Rep. 358 (pollution from hotel sewage enjoined); Atty. Gen. v. Ewen (1895) 3 B. C. 468 (fish offal enjoined). But see, as denying injunctions, Swan v. Adams (1876) 23 Grant, Ch. (U. C.) 220; Weir v. Claude (1889) 16 Can. S. C. 575, affirming (1888) Montreal L. R. 4 Q. B. 197, which reversed (1886) Montreal L. R. 2 S. C. 326; and Atchison v. Stratford Gas Co. (1922) 22 Ont. Week. N. 147.

In Holsman V. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, the chancellor laid down the proposition that, "if the deprivation of the use of the water by diversion constitutes such an irreparable injury as

will be restrained by injunction, the deprivation of its use, by so corrupting it as to render it unfit for use, is an equally irreparable injury, entitling the party injured to the like preventive remedy." He immediately qualified the above proposition, however, by stating that "to entitle the party to the remedy by injunction in cases of private nuisance, the right must be clear, and the injury must be such as from its nature is not susceptible of being adequately compensated for by damages, or such as from its long continuance may occasion a constantly recurring grievance which cannot be prevented otherwise than by injunction."

In Merrifield v. Lombard (1866) 13 Allen (Mass.) 16, 90 Am. Dec. 172, the court said: "It is conceded in the present case that, by the mode in which the defendant conducts his business, a large quantity of poisonous and corrosive substances is permitted to run into the water of the stream on which the plaintiff's and defendant's manufactories are both situated, which defiles and corrupts the water to such an extent that the machinery of the plaintiff is corroded and destroyed, and the use of the water for reasonable and proper purposes is impaired and prevented. We know of no rule or principle of law by which such a mode of appropriation of a running stream, in the absence of any proof of a paramount right or title, can be justified or excused as against a riparian owner of land on the same stream below. No fact appears in this case from which any right by grant, prescription, or adverse use is shown to exist, by virtue of which the defendant can claim to use the stream otherwise than as a riparian owner, entitled to the natural and ordinary rights and privileges which usually and legally attach and belong to the owner of land on the banks of a watercourse. It is clear, therefore, that he has been guilty of an infraction of the plaintif's rights. The right of the latter to equitable relief is clear and unquestionable. The acts of the defendant tend to create a nuisance of a con

tinuous and constantly accruing nature, for which an action of law can furnish no adequate relief."

In Davis v. Lambertson (1868) 56 Barb. (N. Y.) 480, where damages had been awarded to a lower proprietor, "with the liberty to renew his application for an injunction when so advised," it was held that a perpetual injunction should have been issued. The court said: "A court of equity has jurisdiction and should grant a perpetual injunction, when it is established by a trial that the defendant has created a private nuisance to the serious injury of the plaintiff, where that nuisance is permanent in its character, so that the injury continues; where complete and ample remuneration cannot be awarded in damages; or where the court can see that, to obtain complete and ultimate redress at law, several suits may become necessary; or where the injury is otherwise irreparable. It is enough that it 'be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance, cr permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented but by injunction.' In this case it appears, clearly, that the acts of the defendants created and continued a nuisance. In its character it was a continuing nuisance, and it was intended to be and was permanent. It was of considerable pecuniary damage to the plaintiff, and prevented the use by him of the water of the stream, and consequently the use of his land, as he had been accustomed to, and had the right to use it... It was clearly a case where there was no possibility at law of recovering, in any one, or even a dozen actions, the pecuniary damages which the plaintiff had sustained, and was likely to sustain, from its continuance; and, in my judgment, it was not a case where the actual damages, even for the time that was passed, could be or were accurately ascertained. . . It will never do to allow one party either to take possession of, or to pollute, the property of

another by casting offensive substances upon it, and in a manner to show that it is intended to continue it permanently, and then only allow the injured party the liberty to sue in a justice's court. It is the duty of the court, in such a case, to effectually protect him, and to restore him to what he has lost by the wrongful act or acts."

And the inadequacy of the remedy. at law and the prevention of a multiplicity of suits were apparently relied upon, in enjoining the pollution in Strobel v. Kerr Salt Co. (1909) 164 N. Y. 303, 51 L.R.A. 587, 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.

In holding that the city was entitled to an interlocutory injunction against the pollution of a stream by a manufacturing concern, by reason of its maintenance of privies and hogpens, the court in Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96, said: "Anything that renders the water less wholesome than when in its ordinary natural state, or which renders it offensive to taste or smell, or that is naturally calculated to excite disgust in those using the water for the ordinary purposes of life, will constitute a nuisance, and for the restraint of which a court of equity will interpose."

In granting a preliminary decree which enjoined a manufacturer from polluting a stream so as to work serious injury to another manufacturer, where lime and other impure substances were discharged, which spoiled the plaintiff's product, and the defendant was unable to account for the pollution in any other way, the court in Jessup & M. Paper Co. v. Ford (1887) 6 Del. Ch. 52, 33 Atl. 618, said: "Where a complainant shows a reasonable and well-founded apprehension of immediate, threatened, and irreparable injury and loss, it is a duty of courts of equity, in cases within their jurisdiction, to restrain the commission of such injury and infliction of such loss. . . . Where the

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