Townsend v. Bell — 42 N.Y. St. Rep. 229

Majority

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William H. Townsend, App’lt, v. Winslow M. Bell et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed December 28, 1891.)

Headnote

1. Watercourse—Pollution—Defense.

A plush factory discharged into a stream colors which polluted a stream which ran by premises of „the plaintiff. These were of little value, unoccupied, and they were not cultivated. The stream was somewhat polluted before it reached the plush factory. Held, that the plaintiff was entitled to receive the water in its natural state, and that it was no defense to the owners of the plush factory that others polluted the stream.

2. Same—Injunction—Actual damages—Prior occupancy.

An injunction was the proper remedy, and the fact that the plaintiff did not show actual damages was not material; nor the fact that the factory was in operation when the plaintiff bought.

3. Same—Motive of purchaser.

The fact that plaintiff may have bought the land in order to compel the defendants to rent it of him was not a defense.

(Mayham, J., dissents.)

Appeal from judgment dismissing the complaint

This action was prosecuted by the appellant against the respondents to procure a perpetual injunction restraining the defendants from polluting a stream of water which passes over the defendants’ land and is used by them in passing at the factory in the process of manufacturing plush, and is thereby at times colored by the dyes used by the defendants in coloring their goods, and in that colored condition the water of such stream flows over and across the lands of the plaintiff, which are situate below the factory of the defendants on the same. The stream of water in ■controversy is formed by the junction of two small streams above the defendant’s factory supplying a small dam or pond used by the defendants in running their factory. The plaintiff’s premises across which this stream flows after leaving the factory of the defendants consists of a narrow strip of uncultivated land, lying between the defendants’ premises and the Hudson River Railroad which was purchased by the plaintiff long after the defendants had used this for manufacturing purposes, and had discharged into it refuse dyes in the same manner as that of which the plaintiff complains.

The plaintiff purchased these premises at auction, paying therefor the sum of $2,210, but the trial court found that its present value did not exceed $100. The trial court dismissed the plaintiff’s complaint, with costs.

George K Reynolds (J. Newton Fiero, of counsel) for app’lt; Jjinson & Van Burén (John J. Linson, of counsel), for resp’ts.

The plaintiff is the owner of a lot at Milton ■on a stream emptying into the Hudson river. The defendants own and occupy land upon the stream just above the plaintiff,

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having a mill for the manufacture of plush. In ‘hat manufacture different colors are used, and from time to time water is discharged into the stream colored by the dyes used in the manufacture. The tubs in which the color-s are used for dyeing'áre run off into the brook. There are eleven or twelve tubs. The cause of the daily discoloration is mostly the rinsing of the goods after they have been dyed. This occurs twice a day. The effect of this is-to greatly discolor the water as it runs past, plaintiff’s premises. Different colors, pink, red and green appear. The color of the water is seen upon ducks which go into the stream. Bottles of the water taken from the stream belowffhe defendant’s manufactory were produced on the argument of the appeal, showing much discoloration and flocculent matter,, which subsided into a sediment when the bottles were allowed to stand still. If the bottles presented on the argument contained fair samples of the water (and the testimony shows how the samples were taken), no one would be willing to use the water for any domestic or culinary purpose. The fact of such discoloration is hardly disputed, and is found by the court.

The court found that the plaintiff’s property is barren and unproductive ; that he paid therefor $2,210, and that it is worth not over $100 ; that the discharge of this colored water is necessary to-the convenient and successful use of the factory; that the plaintiff does not put the stream to any use, and is not likely to be injuriously affected by this use of defendants; that their use is reasonable and does not harm plaintiff.

Something is said on defendants’ behalf to the effect that the-stream is also polluted from other causes. It appears that two streams unite above plaintiff’s property. One from the south-west is pure and clear. The other from the north-west is said to be made impure by cesspools and the like of the village of Milton. The defendants, therefore, carried the water of this latter stream around the pond and discharged it below their factory; for they found that pure water was needed for their manufactory. But it is not a defense to defendants that others also pollute the stream. Chipman v. Palmer, 77 N. Y., 56 .

It seems to us that, in the defendants’ argument, they have not. observed the distinction between the use of the water of a stream and the extent of such use permissible to all riparian owners, and the defiling or polluting the water so as to make it foul where it passes through land of riparian owners below.

It is undoubtedly true that the riparian owner has a right to a reasonable use of the water, although this may cause some injury to the owner below. Bor instance, using a stream for domestic; purposes or for watering cattle is permissible, although this may diminish the amount received by other riparian owners. So too-the use for propelling machinery is permissible although this also-may diminish the amount which flows beyond. Bullard v. Sar. Co., 77 N. Y., 525 . These uses are all reasonable as to the quantity of water which will probably be detained. So in Prentice v. Geiger, 9 Hun, 350 ; affirmed 74 N. Y., 341 , an action was brought to-recover damages because the plaintiff averred the saw dust from.

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defendant’s mill filled up plaintiff's mill pond. The plaintiff had :a verdict. Some question arose as to a presumptive right to throw .sawdust into the stream. The jury found that defendants’ use was unreasonable; and this was sustained on appeal. It will be .seen that the injury complained of was not the pollution of the water by foul substances, but the filling of plaintiff’s pond. So that the remarks of the courts have little reference to a case like the present, where actual pollution is charged. The use of water •to drive machinery is a very different thing from the discharge of polluted water into a stream. The owner who only uses the stream 'to drive his machinery or water his cattle, lets the water go on to :the next riparian owner in the same healthful conditition in which it was received. But he who pollutes it with foul matter deprives the next owner of his right.

But it may be said that the watering of cattle in a stream tends 'to pollute it and even that the flow of water through a mill-wheel might have that effect. But these are trivial and incidental matters. They are practically of no moment and are only indirect ■■effects of a proper use of the stream. Still more, perhaps, the washing of sheep in a stream might pollute it. But that is only an 'occasional occurrence, necessary and proper in agriculture and •temporary in its effect upon the water. It is entirely unlike the acts of the defendants.

The question then is whether a riparian owner may lawfully ■discharge, day after day, foul and discolored water so great in 'quantity that it pollutes the stream as it passes through the land -of the owner below. We think not. Such owner is entitled to have the stream in its natural purity. Chipman v. Palmer, ut supra, was a case of the pollution of a stream. See Duke of Buccleuch v. Cowan, 5 Macph, 214. The doctrine is asserted in Crossley & Sons v. Lightowler, L. R., 3 Eq., 279, where it was even held that a riparian owner, having a right (i. e. by prescription) to dis■charge foul water into the stream, if he sells land on the bank cannot continue to pour refuse into the water in front of the land sold, even though the water be not in actual use by the purchaser.

To the same effect is Pennington v. Brinsop Hall Coal Co., L. R., 5 Ch. Div., 769. The plaintiffclaimed the right to enjoy the stream in its purity. The defendants pumped water into it containing deleterious matters. But they claimed that if they were restrained they would have to close their calling at a loss of £190,-'000, while the injury to plaintiff was not more than £100 a year. Yet the injunction was granted. It seems to us clear on principle and on precedent that a riparian owner has a right to restrain the systematic pollution of the stream by one who is above him.

Injunction is the common remedy against a nuisance. The reason is that otherwise there would be frequent actions for ■damages; and further that the remedy by common law action is •not adequate. It would be utterly inadequate in a case like the present. And it always must be where the nuisance has been and will in the future be continuous.

But it is urged by defendants that no actual damages to plaintiff are shown. The cases hold that this is not necessary to support

Dissent

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an injunction in such instances. The plaintiff’s right is interfered with. Unless stopped, the interference may grow into a right by prescription. Bickett v. Morris, L. R., 1 Scotch App., 47; Crossley & Sons v. Lightowler, ut supra; Pennington v. Brinsop Hall Coal Co., ut supra; Clinton v. Myers, 46 N. Y., 520 ; Crooker v. Bragg, 10 Wend., 260 . The same is held in Harrop v. Hirst, L. R., 4 Ex., 43, in an action brought by one of the public against a riparian owner who interfered with the supply of water. To a similar effect is Busch v. N. Y., L. & W. R. R. Co., 34 St. Rep., 7 ; Smith v. Rochester, 38 Hun, 612 , where numerous authorities-are cited; affirmed 104 N. Y., 674 ; 7 St. Rep., 867 Webb v. Portland Man. Co., 3 Sum., 189. And, as somewhat similar, Allaire v. Whitney, 1 Hill., 484 .

Again it is said by defendants that great damages would be-caused to them by this injunction. But they have no right to interfere with plaintiff’s right in order to make money for themselves. A similar claim had no effect in the Pennington case,, above cited.

It is urged that plaintiff bought the land when defendants’ mill was already in operation. That is immaterial. Defendants could not prevent the vendor from selling his land with all its rights by insisting that every purchaser knew of the existing nuisance. It-matters not whether the injured party comes to the nuisance or the nuisance comes to him.

Further, it is alleged that plaintiff’s motive in purchasing the land was bad. That is immaterial. “ Courts have no power to deny to a party his legal right, because they disapprove of lnsmotive for insisting upon it.’’ Clinton v. Myers, ut supra. The-plaintiff had a right to buy the land, whatever his motives were. When he became the owner he took all the rights of an owner.. One of these was to have the water of the stream unpolluted. Whether or not he uses the land now is immaterial. If he should desire to make any use of the stream requiring (as defendants’ use does) pure water, he could not safely make any expenditure until1 he should have stopped this pollution. If he cannot prevent it he will be unable to use the stream for any purpose requiring-pure water. Therefore, it is not necessary for him to show actual damage or actual use of the stream.

The complaint asks for damages as well as for an injunction. We cannot determine the amount of damages.

The judgment should be reversed, a new trial granted, costs to-abide the event.

Kellogg, J., concurs.

(dissenting.)—The learned trial judge found that in operating factory the defendants occasionally discharged into this stream colored water from their rinsing vats, whereby the water became colored, and in that condition flowed through the lands of the plaintiff.

That such discharge is necessary to the convenient and successful operation of such factory and’ that the defendants are greatly benefited by such use of the stream.

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That this stream is not put to any use by the plaintiff and the value of his lands are not materially affected, and the plaintiff has not been, and is not now, and is not likely to be, in any way injuriously affected by such use of the water of this stream by the defendants, and that such use of the stream by the defendants was, under the circumstances of this case, reasonable, .and in no way harms the plaintiff.

The plaintiff excepted to each finding of fact of the learned judge, separately, on the ground that there is no evidence to support it; also to certain refusals to find as requested by the plaintiff, and to his conclusions of law.

Whether or not the plaintiff had a right by this action to perpetually enjoin the defendants from the use of this water in the manner indicated seems to depend upon the question whether such use was, under the circumstances, a reasonable use of this stream by the defendants. This reasonable use must not impair the just right of other riparian owners, who are also entitled in like manner to reasonable use of the stream without any unreasonable impairment in quantity or quality. The rule upon this subject which seems to be deducible from the adjudged cases is stated by Angelí on Watercourses as follows: “It is clearly the ■duty' of riparian proprietors upon a watercourse to refrain from erecting upon its.banks any works which render the water unwholesome or offensive.” Angelí on Watercourses, § 136. But the application of this rule does not prevent the owner of land ■over which a stream of' running water flows from the reasonable use of the same for agricultural, domestic, mechanical or manufacturing purposes, even though such use may in some slight degree lessen the quantity or deteriorate the quality of the water which flows from his to his adjoining neighbor’s land:

The exact extent to which the use of a riparian owner may diminish the quantity or impair the quality of water flowing upon the lands of' an owner below is within the authorities difficult to determine, and its determination, it seems to me, must depend upon the circumstances of each particular case; and while a gross and palpable violation of the rights of riparian owners, lower on the stream, would furnish a clear right of action for damages, and perhaps a ground for equitable interference by injunction, still if the rule were carried to the extent that slight diminution of quantity or slight deterioration of quality furnished in all cases a right of action, the ordinary use of running streams would be greatly diminished and the owners of lands through which they flow be deprived of much of their value. In Honsee v. Hammond, 39 Barb., 95 , Miller J., in laying down the rule upon this subject uses this language: “ Although they (defendants in that case) had the right to use the water for all legitimate and proper purposes, they were not authorized to injure the owner on the stream below.”

In Merrifield v. Worcester, 110 Mass., 219 , it was held that the natural right of a riparian proprietor to have the water of a stream descend to him in a pure state, fit to be used for the various pur

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poses to which he may have occasion to apply it, must yield to the equal rights of those who happen to be above him on the stream. Their use of the stream for mill purposes, for irrigation,, watering cattle and the manifold purposes for which they may lawfully use it will tend to render the water more or less impure, cultivating and fertilizing the lands bordering on the streams, and in which on its sources their occupation by farm houses and other erections will unavoidably cause impurities to be carried into the stream. As lands are subdivided and their occupations and use become multifarious, these causes will be rendered more operative and their effect more perceptible, but so far as that condition results only from the reasonable use of the stream, in accordance with the common right, the lower riparian proprietor has no remedy, and that rule seems substantially to have been adopted in this state. In Bullard v. Saratoga County, 77 N. Y., 525 , the court lays down the rule as follows: “ The maxim aqua currit et debet currere ut currere solebat prescribes the general rule in respect to running streams, but it is to be interpreted and applied in connection with another' rule which is well settled, that each riparian owner has a right to a reasonable use of the water. Injury to one-proprietor in consequence of the use of the water of another is-not an invariable test of the right of such use,” and after giving instances illustrating the rule and exceptions, the court adds: “ The question of reasonable use must frequently arise between mill owners on streams which afford a power available for the propulsion of machinery. The maxim that water should be allowed to flow as it is wont to flow, if strictly construed and applied, would prevent the use of streams for manufacturing purposes. The question of reasonable use is ordinarily a question of fact to-be determined upon a consideration of all the circumstances.”

The learned trial court, who, in the first instance, was charged with the duty of determining this question of fact, has expressly found that the defendants’ use of the stream is, under the circumstances, reasonable and in no way harms the plaintiff. In reaching this conclusion he might properly take into account and give due weight to the fact that the defendants had established their plant and were conducting their business in a manner that made-their use of the stream in this way an apparent necessity at the time of the purchase of the plaintiff’s premises by him, especially when the relief sought by the plaintiff would tend to a complete-destruction of the defendants’ business.

The injury which the plaintiff has, or will sustain by reason of the acts of the defendants complained of in this action, bears no comparison to that which would be inflicted upon the defendants by the granting of a perpetual injunction; and while the law will not. sanction a wrong or protect a wrongdoer in its commission, even though the injury inflicted is slight and the advantage to the wrongdoer is large, Corning v. Nail Factory, 40 N. Y., 204 , yet the process of injunction, as said by the learned trial judge, should always be applied with caution, and only when there is established a clear right to such relief, and the apparent danger is imminent. Equity employs the process of injunction to prevent an irrepar

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able injury only. Drake v. R. R. Co., 7 Barb., 508 ; McLaury v. Hart, 121 N. Y., 636 ; 31 St. Rep., 939 ; Morgan v. City of Binghamton, 102 N. Y., 500 ; 2 St. Rep., 449 . In Purdy v. Manhattan Elevated R. R., 36 St. Rep., 43 , it was held that, in order to give the plaintiff a right to injunctive relief, it- is necessary to establish a substantial injury and not merely a technical wrong calling for nominal damages, and this whether the injury be single or continuous, and whether it be the subject of only one or of successive actions.

In McLaury v. Hart, supra, Finch J., says: “Equity wields the powerful process of injunction to prevent irreparable injury.” In the case at bar the court has found that the plaintiff is in no way harmed by the defendants’ use of this water.

Whether this court as an original question would have reached the same conclusion is unnecessary to inquire here. It is quite manifest that the plaintiff has suffered no irreparable injury, nor does it appear from the evidence that any such injury is imminent. But it is urged by the plaintiff that if the injunction is not granted restraining the defendants from this use of the water of this stream, there is danger of the continued use in this manner ripening into a prescriptive right in favor of the defendants. If this were so, we do not think that a sufficient reason for granting an injunction under the circumstances of this case. If the plaintiff’s legal rights are invaded, their assertion and establishment in an action at law would effectually prevent the attaching of a prescriptive right to this use of the water, and protect the plaintiff from any such apprehended consequence.

I am, for the reasons stated, led to conclude that the plaintiff’s complaint was properly dismissed.

Judgment reversed and new trial granted, costs to abide event