and his predecessors had from time immemorial carried on that business, and that the inhabitants of the village had consented to the use made of the stream.

Although the question of prescription was not apparently involved in Baltimore v. Warren Mfg. Co. (1882) 59 Md. 96, the court remarked that if the right, by grant or prescription, to pollute the stream were shown to exist, the only recourse which the complainants could have would be the acquisition of the right by purchase or condemnation.

And see Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, supra, VI. a, where the court considered that a doubtful case should be tried at law.

As to a claim by plaintiff that defendant might acquire a prescriptive right, see cases in subd. III. b, supra, and also Brookline v. Mackintosh (1882) 133 Mass. 215, as set out in subd. IV., supra. And as to a plaintiff's claim of having acquired a prescriptive right, see the dissenting opinion in Battle Creek v. Goguac Resort Asso. (1914) 181 Mich. 241, 148 N. W. 441, as referred to in subd. III. c, 2, supra.

p. Stream artificial.

In enjoining the pollution of water in a canal, by a manufacturer who emptied refuse into the river which supplied the canal, it was said in Indianapolis Water Co. v. American Strawboard Co. (1893; C. C.) 57 Fed. 1000, that the complainant's right to enjoy the canal free from pollution was none the less because it was an artificial stream.

In Silver Spring Bleaching & Dyeing Co. v. Wanskuck Co. (1882) 13 R. I. 611, it was contended that the river in question could not be called a natural stream, but that it was almost entirely an artificial one, flowing from and supplied by reservoirs constructed above, at the joint expense of all the mills, and that therefore the general law did not apply. The court said that it could not so understand it, and that, unless at the time of the construction of the reservoirs, there was some agreement among the mill

owners, by which they would be estopped as against each other from claiming their legal rights, it could not see that the mere fact of turning more water into the stream would alter the former legal rights of the parties.

In reply to the defendant's contention that there was not a living stream of water running through its land when it installed the sewage system, the court in West Arlington Improv. Co. v. Mt. Hope Retreat (1903) 97 Md. 191, 54 Atl. 982, said that the evidence abundantly showed that there was such a stream.

In reply to the defense that the stream in question was not a natural one, but was an artificial watercourse or a drain, the vice chancellor in Blackburne v. Somers (1879) Ir. L. R. 5 Eq. 1, said that in the case at bar it made no substantial difference which it was, it being of a permanent character. He held, however, that it was shown to be a natural stream.

q. Parties; joinder.

In holding that several riparian proprietors were properly joined as pursuers in a single Scotch action, enjoining paper manufacturers from polluting a river in such a way as to render the water unfit for domestic use or for cattle, as were also several of the manufacturers as defenders, it was pointed out in Cowan v. Buccleuch (1876) L. R. 2 App. Cas. (Eng.) 344H. L., by the Lord Chancellor that, while it would be inconvenient, if not impossible, so to join parties in an action for damages, the present action was of a different nature. And he said that, "as a balance of convenience and inconvenience, it appears to me that, looking at the subjects of relief which are comprised in this summons, the convenience of dealing with these matters of relief in one conjoint action rather than in separate actions preponderates immensely in favor of conjunction," and that much greater latitude has been allowed as to joinder of parties in chancery than at law. Lord O'Hagan observed: "There is here, in reality, only one matter of complaint, the pollution of the river. One remedy is obtained, the issue of an interdict.

Baylor Female College (1896) - Tex. Civ. App. —, 33 S. W. 680.

The defense that the particular board, by reason of an irregularity in its organization, was not authorized by the statute to sue to abate a nuisance by pollution, was overruled in State ex rel. Board of Health v. Hutchinson (1884) 39 N. J. Eq. 218, affirmed in (1885) 39 N. J. Eq. 569, holding that the statute applied to that board.

The defense that a statute permitting the state board of health to sue to enjoin the pollution of any stream or tributary thereof from which a public water supply was taken was repealed by a subsequent statute which conferred upon the state sewerage commission similar, although less extensive, powers, and that the former board was accordingly not authorized to maintain the suit in question, in which the operator of a creamery was enjoined from polluting such a tributary, -was overruled in State ex rel. Board of Health v. Ihnken (1907) 72 N. J. Eq. 865, 69 Atl. 28, holding that only such provisions of the earlier act were repealed as were repugnant to the provisions of the later statute, and that the provision authorizing the suit in question was unaffected.

But it has been held that the pollution of a stream in such a way as to make its waters unfit for the use of individual riparian owners, apart from any injury to the public at large, cannot be enjoined by the state as a public nuisance. State ex rel. Wear v. Springfield Gas & E. Co. (1918) - Mo. App., 204 S. W. 942.

The contention that the provincial attorney general alone was entitled to take proceedings to enjoin a public nuisance, rather than the Attorney General of the Dominion, was overruled in granting an injunction sought by the latter to enjoin the discharge of fish offal into a river in Atty. Gen. v. Ewen (1895) 3 B. C. 468, the court observing that, while the former might proceed in respect to the nuisance, the Dominion had control of fisheries and conservation of the water.

The defense that the suit should have been brought only against the lessees, who were operating the canal,

was overruled in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, where the lease was soon to expire and the proprietors asserted their right to allow the polluted water to flow through the canal, and admitted that they would probably continue to do so.

However, in Ingraham v. Dunnell (1842) 5 Met. (Mass.) 118, one ground for the decision against the plaintiff, owner of a mill which was being operated by a lessee, was that he should have joined the lessee as a party.

The objection that the bill was multifarious, in that it sought to enjoin forty defendants from polluting the creek in question, was overruled in Warren v. Parkhurst (1906) 186 N. Y. 45, 6 L.R.A. (N.S.) 1149, 78 N. E. 579, 9 Ann. Cas. 512 (affirming (1905) 105 App. Div. 239, 93 N. Y. Supp. 1009). The opinion distinguishes between suits for injunction and those for damages as regards the joinder of parties contributing to the injury. (In this connection, see annotations in 9 A.L,R. 939, 947, 952, and 35 A.L.R. 409, 412, [Joint Creditors and Debtors, § 7].)

In holding to be warranted a decree enjoining several defendants from polluting a stream, it was said in Glassell v. Verdugo (1895) 108 Cal. 503, 41 Pac. 403, that, if some of them had not polluted and did not propose to pollute the water, the fact that in this respect the injunction did not discrim inate between them and the other defendants who were polluting it would do no harm.

A bill to enjoin the pollution of a stream, sued out during the defendant's life, will not survive against his personal representative carrying on, the business, after defendant's death more than six months later, a statute permitting a survival as to injuries. committed within six months being inapplicable. Kirk v. Todd (1882) L. R. 21 Ch. Div. (Eng.) 484-C. A.

It appears from a reference in 2 Scots' Dig. 1873-1904, col. 2384, to Buccleuch v. Brown (1874) 1 Sc. Sess. Cas. 4th series, 1111, that the interdict was granted against the discharge of polluting matter, where at the date of the verdict the respondents were

partners in the firm which had polluted the stream.

In Greene v. Nunnemacher (1874) 36 Wis. 50, where both damages and an injunction were claimed, by reason of pollution from a distillery, it was held that while the plaintiff, who conducted an inn, had sufficiently alleged, as special damage to enable him to abate the nuisance, loss of profits and sickness of members of his family, he had improperly united several causes of action in the complaint, since he claimed not only from the owners, but from several other defendants who had conducted the distillery at various times.

r. Miscellaneous.

In addition to the more common defenses, as set out in the preceding subdivisions, a number of others have been interposed at times upon the theory that they would preclude the granting of the injunction to restrain the pollution of the stream.

Express reservation of right to pollute. In reply to the contention that the right to pollute the stream at the point where plaintiffs' unoccupied land was located was expressly reserved to defendants by deed, it was said in Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, that it was "not competent for a person to sell property in front of a river, thereby constituting the person to whom he sells it the riparian proprietor, and then so to affect and damage the river as to make it useless for the ordinary and legitimate purposes to which the water may be applied; unless, indeed, there be reserved in the instrument conveying the land an express right to that user." And the court said, further, that in the case at bar, so far from such a right being reserved, the right of user which was reserved was for another and a different purpose, and declared: "It certainly does seem to me preposterous to say that a person can convey land to a riparian proprietor, and then claim the right of pouring his dirty water into it, if he pleases, when he has saved to himself the right of using a particular goit for another particular purpose."

Alleged pollution beneficial.

One of the defenses which was overruled in State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, was that the obnoxious matter was sometimes used by bakers and confectioners in their wares. And see Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, where defendant claimed that the bleaching materials were largely healthful disinfectants.

A suggestion that fish offal which was thrown into a river was eaten by organisms which in turn were eaten by salmon, and that therefore the alleged pollution was beneficial to the fish, was characterized as a theory without any satisfactory foundation in Atty. Gen. v. Ewen (1895) 3 B. C. 468. Worse nuisance created if injunction

granted.

The contention was urged in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, that the result of enjoining the pollution of the canal would be the creation of a worse nuisance in the brook, into which the whole of the filth would be thrown, but the court doubted whether this would be so, in view of the fact that the water flowed more rapidly in the brook, and said that it was enough that the persons who were represented by the attorney general were annoyed.

The defense that the opening up of the bed of the stream which had been covered by the defendants would itself make a nuisance, was overruled in Fahnestock v. Feldner (1904) 98 Md. 335, 56 Atl. 785.

Improper motive.

The contention that plaintiff's motive in purchasing his land was bad was said to be immaterial in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210,-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.

(In Jacobs v. Allard (1869) 42 Vt. 303, 1 Am. Rep. 331, where the complaint charged defendant with a wrongful intent, the court said that no such intent was shown.)

Plaintiff able to procure water elsewhere.

In Durham v. Eno Cotton Mills (1906) 141 N. C. 615, 7 L.R.A. (N.S.) 321, 54 S. E. 453, the court remarked that it was, of course, no defense that the city could obtain pure and wholesome water from other sources. And

this point seems to have been incidentally raised in other cases, without any particular reply to it having been made.

Injunction would not prevent recurrence of pollution.

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In reply to the contention that the sand bar in the river, if removed by defendants, would reform, it was said in Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ. App. —, 163 S. W. 1023, that this fact could be no reason why the plaintiff should not have the injunction for the time intervening between the time of removal and the time the bar should reform.

Natural flow of pollution.

In reply to the contention that the seepage and surplus water flowed naturally into plaintiff's ditch or canal, the court in North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co. (1898) 16 Utah, 246, 40 L.R.A. 851, 67 Am. St. Rep. 607, 52 Pac. 168, observing that it came from irrigated lands above, pointed out that, while at some places higher up the defendant discharged similar water into the river, which was the natural source of supply, it failed to do so immediately above plaintiff's ditch, but discharged the foul water into such ditch, although it appeared to be practicable to discharge it into the river at that place in the same way as it did further

up.

Property sold by defendant.

A defense was interposed in Neubauer v. Overlea Realty Co. 1923, 142 Md. 87, 120 Atl. 69, that the defendant realty concern was powerless to remedy the pollution from the sewage, since it had sold the houses, including the bed of the streets in which it had installed the sewerage system; but it was shown that it had not parted with the title to the street, and further that it proposed to extend the same system

to some other streets, as yet undeveloped. And see the reported case (CARETTI V. BORING BLDG. Co. ante, 1) where the defendant sought to escape being enjoined upon the ground that it had sold all of the occupied houses upon its tract.

Statute of Limitations.

The defense that the suit was barred by the Statute of Limitations, because it was not brought within five years from the time when the cause of action accrued, was overruled in McKinney v. Emory & H. College (1915) 117 Va. 763, 86 S. E. 115, upon the ground that the cause did not accrue until the sewage was discharged in sufficient quantities to pollute the stream and constitute a nuisance, where it appeared that, except for a negligible discharge of sewage from the house of one professor, there was no discharge within the five-year period, although water-closets had been installed before that time in a building which was not used until later, and also that plaintiff did not know anything about the sewers until within the statutory period.

Custom.

The fact that it was the custom of defendant as, of other manufacturers on the stream, to dam the polluted water during the week and discharge it only on Saturday afternoons, and that plaintiff was aware of this, was held to constitute no defense in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522.

Sanitary authority alone concerned.

In Wallace v. M'Cartan [1917] 1 Ir. · R. 377, defendant's contention, in addition to other defenses, that, as the sewer which emptied into plaintiff's stream belonged to the sanitary authority, the latter alone was concerned with the disposal of the sewage which the defendant emptied into it, was overruled by the granting of an injunction restraining the discharge into the sewer of sewage from defendant's premises, the court observing that so long as the sewage was on his premises it remained under his control. E. W. H.