Townsend v. Bell

"Learned, P. J.

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, having a mill for the manufacture of plush. In that 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 colors are used for dying are run off into the brook. There are 11 or 12 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 below the 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 convenience and successful use of the factory; that the plaintiff does not put the stream to any use, and is not, 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 cess-pools 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. For 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. Manufacturing 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 defendant’s mill filled up plaintiff’s mill-pond. The plaintiff had a verdict. Some question arose as to the presumptive right to throw saw-dust into the stream. The jury found that defendant’s 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 condition 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 v. Lightowler, L. R. 3 Eq. 279, where it was even held that a riparian owner, having a right (i. e., by prescription) to discharge foul water into a 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. Coal Co., 5 Ch. Div. 769. The plaintiff claimed 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 inadequte in a case like the present; and it always must be where the nuisance nos been, and will in the future be, continuous.

But it is urged by defendants that no actual damages to plaintiff is shown. The cases hold that this is not necessary to support 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 H. L. Sc. 47; Crossley v. Lightowler, ut supra; Pennington v. Coal Co., ut supra; Clinton v. Myers, 46 N. Y. at 520; Crooker v. Bragg, 10 Wend. 260. The same is held in Harrop v. Hirst, L. R. 4 Exch. 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, Busch v. Railroad Co., (Super. Buff.) 12 N. Y. Supp. 85; Smith v. City of Rochester, 38 Hun, 612, where numerous authorities are cited, affirmed 104 N. Y. 674, mem.; Webb v. Manufacturing Co., 3 Sum. 189. And, as somewriiat 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 rights because they disapprove of his motive 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 until 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.

STATEMENT BY MAYHAM, J., DISSENTING.

This action was prosecuted by the appellants against the respondent 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 defendants’ 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 Biver Bailroad, 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 in 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.