for over twenty years for manufacturing purposes, the chancellor in Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, said that the fact of the adverse user was not established, stressing the point that defendant could acquire no right by prescription until it could show that the acts claimed to constitute the adverse user injured the complainant; and declaring that it was not shown that the discharges into the stream had previously been of such a character and amount as to pollute the water on complainant's land. And, applying the principle that the right acquired must be commensurate in character and extent with the enjoyment, he observed that the previous practice of throwing sawdust into the stream could not establish the right of discharging into it poisonous and noxious drugs, and that the extent of the previous manufacturing operations of dyeing or hatting was not shown.

In Merrifield v. Lombard (1866) 13 Allen (Mass.) 16, 90 Am. Dec. 172, supra, II. a, it was contended that, for more than twenty years before the plaintiff's factory was built, the defendant had used the stream in the manner complained of, although it was agreed that there had been no perceptible injurious effect therefrom except in the last eight years; but the court observed that no fact appeared from which any right by grant, prescriptive or adverse use, was shown to exist.

As to the defense that the pollution of the stream was sanctioned by prescription, and that the decree should be limited to enjoin only whatever refuse should be in excess of what defendant had the right to discharge, it was said in McCallum v. Germantown Water Co. (1867) 54 Pa. 40, 93 Am. Dec. 656, where it was shown that the pollution was caused entirely by defendant's recent discharge into the stream, of refuse in connection with its manufacture of blankets, and that during its previous long-continued manufacture of carpets it had not polluted the stream: "If, therefore, an upper riparian proprietor claims the right to pollute the stream by prescription or a user of twenty-one years,

by an analogy to the Statute of Limitations, he cannot pollute the water to any greater extent than it was polluted at the commencement of the twentyone years. That is to say, if the pollution at that period was slight or not injurious to any extent, he cannot, at any time within that period, increase it five or ten fold, so as entirely to destroy the water for drinking and domestic purposes. The right must be measured by the enjoyment, and it gives no right to use it in a different and more extensive manner. Previous to 1861, the water was fit for drinking and all domestic purposes, and every precaution had been adopted at the works of the company to exclude all impurities. There was, therefore, no right gained by user to pollute the water, so as to unfit it for drinking, before that period; the actual pollution afterwards is unprotected by prescription, and was simply both a public and a private nuisance."

As to the defense of prescriptive right to pollute the stream, which was urged by the operator of the slaughterhouse in Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419, the court observed that the plaintiff's right to the free and unobstructed use of the stream to operate his mill had become a prescriptive right, "which no prescriptive right to use the stream for a sewer way, if such exists, could countervail;" and, furthermore, that the wrong complained of, and disclosed by the evidence, amounted to a public nuisance, for which there could be no prescription. And, after asserting that the pollution did not give any trouble of material importance until about eight years previously, and that the plaintiff could not be expected to sue until his righ: was interfered with, the court stated: "If he had complained sooner he might have been unable to make out a case of such interference with the reasonable enjoyment of his property as would have entitled him to the aid of a court of equity. Until he received some substantial injury, he could not be expected to sue, and so there could be no prescription as against his right to the free user of the water, until that right was inter

creek, and it appeared that the amount of such waste had been largely increased during the two years immediately preceding the commencement of the action, the court stated that a prescriptive right must necessarily be restricted to its limits when the period of prescription commenced, even though the right be asserted on behalf of the public, and that such a right was not enlarged by the enlarged use enjoyed by those claiming it, but was measured by the extent of the use at the commencement of the prescriptive period.

The defense that the dam holding back polluted water of a creek had been built before the city was established, and that the defendants and their predecessors had possessed their water privilege for seventy years, was overruled in New Castle City v. Raney (1888) 6 Pa. Co. Ct. 87.

The defense of long-continued use of the privilege of taking sand from the river, amounting to an easement, which was pleaded by way of limitation and as a presumption against plaintiff's right to enjoin a threatened pollution from the removal of the sand, was thus overruled in Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ. App., 163 S. W. 1023: "As to the taking of sand the right might be acquired by prescription, and, if the bar had been removed, and appellee's lands had been affected by the flood waters for ten years, the prescription right would have been acquired, for in that case there would have been a wrong which the appellees could have redressed by suit, and, from their delay in suing, the presumption of a grant would have arisen, but not so in this case. The appellees had no property rights in the sand, and any taking thereof by the appellants up to the time that it amounted to a removal of the bar, to the extent that it permitted the salt water to flow up to appellees' land, to its injury, inflicted no wrong upon appellees. Being not inimical to their rights, it raised no presumption against them, so appellees could not have prevented or interrupted the taking of sand by appellants by any legal

proceedings until in some way such act of taking threatened to or actually worked injury to their property rights."

In Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, where defendants' claim of a prescriptive right to pollute the stream. was based upon ownership by themselves and their predecessors of a dye works for over sixty years, the court found that, while the works had been in existence during that entire period and the stream had been thereby polluted to some extent a good many years before, the right to pollute in connection with the dye works had been abandoned, in view of a disuse for a period of twenty-six years, which immediately preceded defendants' recent construction of a large addition to the works, taking into further consideration the fact that plaintiffs had been allowed to expend large sums of money on their works while the others remained wholly unused; and said that one could not, after a period exceeding by five years the time in which the right might be acquired by any other person, re-establish his right to resume work again, which he had for that period left wholly unoccupied, by a business of a similar description, while other persons had, in the meantime, acquired rights of user in the

water.

In Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, where a sewer had discharged into the stream for over forty years, the vice chancellor declared that he knew of no case in which a prescriptive right to foul a stream by sewage. had been held to have been acquired. He stated, further, that he was satisfied that the pollution was dangerous to public health, and not merely a private wrong, independently of an adjudication in another court as to defendant's former pollution.

And in Blackburne v. Somers (Ir.) supra, where the pollution largely increased within the preceding twenty years, it was said that if it had increased either gradually or suddenly, and had, at least to a substantial extent, exceeded the limits existing at

Richards (Ont.) supra, apparently took the view, as did the lower court, that certain payments made by the defendants operated as an acknowledgment that they did not have the right to pollute the stream to the extent to which they did pollute it. And, in reply to the contention that the payments were only for injuries done over and above the prescriptive right, the lower court declared that no suggestion was made that a limited prescriptive right was claimed, or that the payment was for the excess.

And the lower court in Hunter v. Richards (Ont.) supra, further considered that the statute forbidding the throwing of rubbish into any stream flowing into a navigable water was applicable, so as to prevent defendants gaining a prescriptive right.

And the fiction of a lost grant was unsuccessfully resorted to as a defense in Hunter v. Richards (Ont.) supra. In connection with this defense, the appellate court declared that upon the whole evidence it could not reasonably find a grant from anyone, at any time, giving defendants the present right to injure plaintiff's land as they were doing, nor that there was any reasonable evidence of possession from which such a grant might be presumed; and, commenting upon the privileges commonly permitted during the early settlement of the country as having been gradually withdrawn, it said that the fouling of streams by early settlers was seldom done as of right, "but only as of neighborliness,-tacit license." The dissenting judge below took the view that the lost grant should be inferred from the circumstances.

In overruling the defense of prescriptive right in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522, the court remarked that the materials which were used by defendant for about thirty years, or until a recent date, were substantially different from those used at the time of suit, and also that the effluent was formerly much less in amount and less noxious that at present.

But in the common pleas decision of Warren v. Hunter (1853) 1 Phila. (Pa.) 414, supra, VI. m, the denial of

an injunction was based largely upon the ground that the defendants had acquired the prescriptive right to corrupt the stream in question by depositing dyestuff and other deleterious substances therein, since they and their ancestors had for more than twenty-one years had the unrestricted use of such stream in the manner and for the purposes for which they used it at the time of suit, without objection from anyone; the court taking the view that, although the pollution had recently increased, such increase was not sufficiently traced to the defendant.

And in Baxendale v. McMurray (1867) L. R. 2 Ch. (Eng.) 790, a defense of prescriptive right, based upon the pollution of a river by a paper manufacturer for more than twenty years, prevailed over plaintiff's claim that the pollution had so increased recently by reason of the substitution of a different raw material, as to diminish the value of plaintiff's house and ornamental grounds,-the court considering that, while the defendant had the right to discharge into the river the refuse produced at his mills, using the materials which were proper for the purpose, but not increasing to any substantial or tangible degree the amount of pollution, the plaintiff had failed to discharge the onus of proving that a greater amount of pollution and injury arose from the use of the new material.

It was apparently recognized in Buccleuch v. Cowan (1866) 5 Sc. Sess. Cas. 3d series, 214, as cited in 4 Scots' Dig. col. 391, that the fact that the stream had been from time immemorial devoted to a secondary purpose, such as manufacturing, would supersede and abrogate the primary purpose for which the lower proprietor used the stream.

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, the refusal (under the civil law) of an injunction which a recent summer resident sought against the owner of a tannery seemed to be largely based upon the fact that such owner