(dissenting):
I dissent. After a long and careful trial the learned- trial court has awarded to the plaintiff the sum of $1,482, being about $312 per year since 1905, as damages against the defendant for polluting the Kayaderosseras Creek which flows for about two miles through plaintiff’s farm of 255 acres, and has granted a permanent injunction against the further pollution of said stream by *4defendant, suspending the action of the injunction, however, for the term of one year from the final determination of any appeal that may he taken from said judgment. This court is about to practically reverse this judgment by reducing the damages to $100 per year and then holding that because the damages are not substantial a court of equity need not issue an injunction. Since there are neither findings nor evidence to justify the reduction the reasoning might have been made more convincing if the reduction had been made to six cents per year instead of $100 per year. The opinion of reversal or modification further holds that because others pollute this stream and the damages were not apportioned in an action in which the other wrongdoers were not parties, and whose damages the plaintiff or the court, did not attempt to measure, that the injunction shall be suspended until such time as plaintiff shows that the stream is otherwise reasonably pure, or that the other parties defiling it are enjoined, when plaintiff may apply for the renewal of the injunction. Of course, this provision substantially defeats itself, as the other wrongdoers, if brought to court by plaintiff, can point to this defendant (claimed to be the chief offender) and insist thafwhile ⅛, the defendant,- is not restrained they should not be, so that this judgment, if it remain, renders plaintiff impotent to obtain an injunction against any defiler of this stream. Such has never been the law in this State. One of the reasons given in the prevailing ppinion for the denial of this injunction is that the value of plaintiff’s property is insignificant as compared with “the investment of hundreds of thousands of dollars ” in defendant’s plant. It has always been the boast of equity that any substantial injustice might be corrected by it to even the humblest suitor, and that the financial size of such a suitor’s antagonist was not important. I think the judgment appealed from is just and equitable. The damages are well within that testified to by all plaintiff’s witnesses and some of defendant’s. Pollution by others should not affect the injunction, as plaintiff has the absolute right to attack such defiler of the stream first as he is advised. See Sammons v. City of Gloversville (34 Misc. Rep. 459, 461; affd., 67 App. Div. 628; 175 N. Y. 346), where the learnéd jurist says: “It is true that the injury to *5plaintiff will not be wholly obviated by restraining the defendant alone, but if the plaintiff suffers substantial damage from one, he has the right, I think, to stop that, notwithstanding the fact that he may suffer also from another source. He could sue all and thus obtain entire relief; but he has the right also to sue the persons who injure' him separately, and if he proyes substantial injury from that source, he has the right to have that part of the injury cease. He can take the others in' their order, if he sees fit, and thus relieve himself entirely or he can waive the injury by not asking to be relieved.” (See, also, the authorities cited in the opinion.)
See, also, Warren v. City of Gloversville (81 App. Div. 291, 293), where the court says: “ When, however, the damages are substantial, the fact that an injunction would interfere with great industries, the development of natural resources, or with the plans of a great city for drainage, is not a sufficient reason for relaxing the ordinary rules governing the rights of riparian owners of land. (Strobel v. Kerr Salt Co., 164 N. Y. 303.) Where wrongful interference with the waters of a stream causes substantial injury, an injunction to the person so. substantially injured is a matter of right.”
In these two cases injunctions were issued against a city of 18,000 inhabitants stopping it from depositing its sewage in a flowing stream at the instance of a small property holder farther down the stream. v
See, also, Strobel v. Kerr Salt Co. (164 N. Y. 303), where the court says, Judge Vann writing (p. 320): “There is nothing about the case now before us to take it out of the general rules governing the rights of riparian owners. Those rules are well established in this State, and, so far as material to the case before lis, aré, in the absence of modification by grant or prescription, as follows: A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream, as an incident to his ownership of the soil, and to have it transmitted to bim without sensible alteration in quality or unreasonable diminution in quantity. While he does not own the running water, ■ he has the right to a reasonable use of it as it passes by his land. As all other owners upon the same stream have the same right, the right of no one is absolute, *6but is qualified by the right of the others to have the stream substantially preserved in its natural size, flow and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. * ⅜ ⅜ While the courts will not overlook the heeds of important manufacturing interests, nor hamper them for. trifling causes, they wifi not permit substantial injury'to' neighboring property, with a small but long-established business, for the purpose of enabling a new and great industry to flourish. They will not change the law relating to the ownership and use of property in order to accommodate a great business enterprise. According to' the old and familiar rule every man must so use his own property as not to injure that of his neighbor, and the fact, that he has invested much money and employs many men in carrying on a lawful and useful business upon his own land does not change the rule, nor permit him to permanently prevent a material portion of the water of a natural stream from flowing over the land of a lower riparian owner, or to so pollute the rest of the stream as to render it unfit for ordinary use. The fact that other salt naanufacturers are doing the same thing as the defendant, instead of preventing relief, may require it.”
This latter case is authority for practically all the questions involved in the judgment herein appealed from. This case makes a new departure in riparian law. I have not been pointed to nor can I find any precedent where an injunction has been denied in this, State to a lower riparian owner against an upper one who substantially pollutes the stream by depositing large quantities of poisonous matter therein and such pollution continues until it reaches the lower owner. I think the judgment here was very well considered. The one year respite after the end of the litigation gives defendant ample time to arrange for some other method of disposing of its offensive and poisonous discharge from its mill than into the stream which flows for two miles through plaintiff’s land: It follows that the judgment should be affirmed, with costs.
Judgment as per opinion.