DISSENTING OPINION. I agree that the cause ought to be reversed, but am of the opinion that it should be remanded for hearing upon the issue of damages under proper instructions. The jury was warranted in finding that the pollution of the stream was at least substantially contributed to by the fibrous effluent discharged therein by appellant. The right of the plaintiff to maintain her action was sanctioned by Masonite Corporation v. Burnham,164 Miss. 840, 146 So. 292, 91 A.L.R. 752.
To deny plaintiff's rights, it ought not to be sufficient merely to generalize her damages as consequential; the test of liability is a matter of proximate result. In the Burnham case the same effluent caused an increased infestation of mosquitoes. This, in turn, caused annoyance and damage, yet it was not condemned as merely consequential, but distinctly upheld by this Court.
The plaintiff had a right as a riparian owner and as a citizen to the use of the stream unpolluted, and to establish her business upon her right to use the stream as an asset. The defendant had the duty not to injure this right. It was, therefore, an unlawful violation of a private legal right. It is of no consequence that plaintiff did not own the waters nor the fish therein. She *Page 542 is not suing for damage to the fish. Yet she had the legal right to take them. She does not sue for killing the fish, but for killing her business. It could not be denied that, had she captured fish within a live box, recovery for their destruction could be allowed. She did not own the waters, but she had the right to employ them in her business whether it be to turn the wheels of a mill or to float her fishing craft or to utilize them in any way in the conduct of her modest enterprise. Damage to one's person or business by noxious fumes or odors has never been denied upon the ground that plaintiff did not own the atmosphere. Has slander ever been refined into damnum absque injuria by an analysis which disclosed that the spoken words were conveyed by the mysteries of atmospheric wave lengths through a medium which plaintiff did not own?
There is nothing complicated nor novel in the conception that loss of business is an element of damage in nuisance cases. 25 C.J.S., Damages, Sec. 90, p. 633. The phrase should not be broken down into a lot of smaller component links so as to attenuate the chain of causation beyond its capacity to bind cause and effect.
The controlling opinion places emphasis upon the contention that a killing of fish in 1943 is not sufficiently shown. Yet the controlling consideration is not the date of the cause but of its effect. Damage in 1943 was shown. The time when the forces of destruction were set in motion ought to be as irrelevant as the date when any potential menace was created. The gradual burning of a time fuse may prolong the ultimate moment of damage and liability, but it should not be allowed in its delayed progress, to burn away responsibility for its setting.
I must confess an inability to find apposite an illustration whereby A seeks damages from B for his destruction of C's mine property. Here A has no right to demand that C continue his development of the mine so that A may enjoy incidental profits from his housing facilities. In the instant case there are only two parties, the owner *Page 543 of the business and the party destroying it. It is important also to note that here the plaintiff has the right to demand that her adjacent waters continue to flow and that they be not disturbed to her hurt. In the suggested case A could not sue C for a voluntary abandonment of his business for C has the right at any time to stop the flow of its custom or to pollute its progress by inefficiency. Plaintiff launched her business upon the banks of the stream that only the sovereign could control, and in whose wholesome maintenance that sovereign was bound to co-operate.
The error which I concede is the failure of the trial court to restrict defendant's liability, if any, to its proportionate share of responsibility. This rule was recognized in Masonite Corporation v. Burnham, supra. Instructions to this end were refused. This principle is recognized in the following cases, all of which are strikingly in point: Pulaski v. Gibboney Sand Bar Co., 110 Va. 444, 66 S.E. 73, 24 L.R.A. (N.S.), 1185; Little Schuylkill, etc., Co. v. Richards' Adm'r, 57 Pa. 142, 98 Am. Dec. 209; Harley v. Merrill Brick Co., 83 Iowa, 73, 48 N.W. 1000; Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93. These cases discuss reasonably the bases for adjudging the respective responsibility of separate contributors and decry any tendency to dismiss such cases as not providing a mathematically accurate basis for computing damage.
Since the concurring opinion is not grounded upon geographical, but upon causal remoteness, it states a principle which would immunize the defendant from liability, even to an adjoining proprietor whose business depended upon the use of the waters of a navigable stream which defendant has been authorized practically to expropriate. Such damaged business, whether using the waters for the manufacture of ice or for restaurant, bottling, or other purposes is apparently to be integrated with the other macerated components of appellant's finished product, *Page 544 and the crushed fragments of a lesser industry have become but worthless bits of residual waste.
Roberds, J., joins in this dissent.